The Power and the Money

Trump’s executive orders are not unconstitutional but they are a sign that the Constitution is breaking

Did Donald Trump just repeal Article 1 of the constitution on Saturday? After looking at the details, I published a hot take on Twitter that seems to be standing up to the test of time. So my short answer: no.

Longer answer: No, but it’s worrying.

Longest answer:

The president’s executive order postpones payroll tax collection until next year under Section 7508A of the Internal Revenue Code, which allows for tax collections to be postponed for the victims of natural disasters. But since this is Trump, there are several problems. Section 3101 of the IRC puts payroll taxes on individuals, who get relief. But employers are still responsible for collecting the tax under Section 3102(b).

So why would businesses would want to stop collecting the tax? After all, there’s a big chance that they’ll be responsible for the uncollected sums come January 2021. And the uncollected funds will go to their employees, not to them. They’d have to claw back that money somehow, or take a double hit, paying out today’s payroll taxes to employees in the form of wages and then paying them again to the federal government.

In other words, it’s a mess! But it’s not an unconstitutional mess.

The unemployment insurance is a different wrinkle. What the President aims to do here is redirect $44 billion of the $70 billion in FEMA’s Disaster Relief Fund to the Federal Additional Unemployment Compensation Program. It’s not clear that he can do this, but I suspect that the courts will allow it. After all, a pandemic certainly qualifies as a natural disaster. Paying it through unemployment insurance is, well, unorthodox, but SCOTUS has been pretty lenient so far with this sort of thing.

That won’t last long. Here’s a back-of-the-envelope calculation. In June, the Feds spent $80.4 billion on unemployment insurance for roughly 17.6 million unemployed people. So, figuring that outlays go down by 33% 50% (from $600 to $400 $300, with the states picking up $100) and the number of unemployed falls another 10%, then the DRF will be exhausted on September 5th September 16th.

Of course, there’s another problem, which is that the states have to kick in roughly $15 billion in order to enable the feds to spend that $44 billion. The President is talking about waiving that, but there he really doesn’t seem to have any statutory authority, no matter how tenuous.

In other words, it’s a bad policy (why cut benefits at all?) that relies on a benign hurricane season (good luck with that) and dumps us right back into the soup next month. But it’s not clearly unconstitutional. This is not the John Yoo strategy, not yet.

Still, it’s worrisome. First, it’s worrisome that the executive felt no need to compromise with the legislature. Second, it’s worrisome that they’d break a bunch of norms to get leverage in negotiations. It adds more weight to Juan Linz’s argument about the dangers of a presidential system. (President Obama’s DACA and DAPA orders can be interpreted in the same light.) And third, it’s worrisome that Congress is looking increasingly unable to check the president.

The failure modes are piling up.

The Chilean senate is no longer completely terrible but ...

In 2015, Chile reformed its horror of a Senate. (This blog is no fan of senates.)

Previously, Chile elected two senators from 19 constituencies. Eight of the constituencies conformed to Chilean regions, regardless of population. The remainder consisted of regions split in half. In every constituency, the party that won a plurality would get one senate seat. Then the runner-up would get the other seat, unless the winning party more than doubled its vote share over the runner-up. This is the binomial system Andrei mentioned in comments.

That system is now mostly gone, replaced with one where each Chilean region gets a number of Senators proportional to its population. Inside each constituency, Senators are selected by proportional representation. 

But it is still terrible. Consider the below chart. The horizontal axis is the number of senators from each constituency. The vertical access is the population of the constituency. Five of the smaller ones are stuck with the old binomial system. And the distribution of senate seats is lumpy and only vaguely related to population. 

Moreover, smaller regions are ridiculously over-represented and metropolitan Santiago is massively under-represented. Consider:

So the Chilean senate is still a mess. But the lower house is even worse!

There is actual is actual overlap, with smaller districts getting more deputies that larger ones. Malapportionment is terrible.

In other words, the 2015 amendments may have (mostly) abolished the binomial system, but they still left districting a mess. Multimember districts are a good thing, but this is a terrible way to do it. Chile needs constitutional reform.

Although I am still not clear why it needs a whole new constitution. Thoughts?

Why does Chile need a new constitution?

The Republic of Chile is set to replace its constitution. After the mass demonstrations, all the political parties signed on to writing a new Magna Carta. Amendments readily passed authorizing a constitutional convention if a national referendum gives the thumbs up.

But what is wrong with the current document? Nobody likes the fact that it was written by a dictatorship back in 1980. But the atrocious parts of that document have all been excised. It now includes the right to unionize, the right to social security, the right to education through age 18 and the right to a clean environment. It bans no social or economic policies short of outright Bolshevism. 

So is there anything concretely wrong that requires a new constitution? 

A few obvious problems: 

1. Senate districts remain severely malapportioned, as do lower house districts. In addition, the binomial system survives in some constituencies.
2. Many ordinary laws require supermajorities for no good reason. Article 66 requires 60% for any laws that “interpret constitutional precepts.” Meanwhile, constitutional organic laws require 57%. “Constitutional organic laws” are specified in the constitution as laws giving structure to constitutional mandates; in other words, they are just plain laws.
3. The president is too damn powerful. It’s great that the executive can unilaterally propose laws to Congress. (The U.S. constitution could use an amendment permitting this.) But it is ridiculous that Article 65 says that only the president can propose laws on taxation, public services, employment, borrowing, salaries and remunerations, social security or collective bargaining.
4. Amendments intended to strengthen judicial review may have gone too far. In Chile, you do not need standing in the Anglo sense in order to challenge constitutionality: Article 93 gives a long list of officials that can bring suit before the Constitutional Tribunal. 

This is not a very long list. What am I missing? Does Chile need a new magna carta for any reason other than the symbolic?

Constitutional hardball in Peru

So, yesterday the President of Peru dissolved Congress and called for new legislative elections. The Congress called that illegal, and deposed the President. What’s going on?

Constitutionally, we have a bit of a mess. The reason, however, isn’t really that the Constitution is unclear. (In fact, the Peruvian constitution is a very nice document.) It is that all sides are playing hardball, sticking to the letter of the rules but without any informal norms to keep things on the rails.

Short version: Peru has a mixed Presidential-Parliamentary system with a President and a Prime Minister. The President, however, retains executive authority. Think France, not Germany.

The Congress, controlled by the Fujimorista opposition, tried to pack the Peruvian supreme court. The President said this was against the rules, and told the Prime Minister to send a “confidence vote” against the move directly to the floor. (Article 133.)

The first problem: does the confidence vote take priority over all other matters? Article 133 doesn’t explicitly say that confidence votes should take priority, but that appears to have been the intention of the 1993 authors of the document. (Weirdly, no one is asking them.)  The Congressional leadership, in a chaotic session, decided to vote on court packing before the confidence vote. (Chaotic means chaotic: fistfights, shouting, physically stopping the Prime Minister from taking the floor by locking the door. )  

The President took Congress’s decision to postpone the confidence vote to be the equivalent of having his government lose a confidence vote. According to him, this was the second vote lost during the current presidential term, and so he dissolved Congress and called new elections under Article 134 of the Constitution.

But this brings us to the second problem. Article 134 gives the president the power to call new congressional elections should the administration lose two confidence votes. But has President Martín Vizcarra lost any confidence votes? In point of fact, he has not lost any confidence votes since assuming office. 

But Vizcarra claims that since he is only finishing disgraced ex-President Pedro Kuczynski’s term, a lost confidence vote on education policy during Kuczynski’s term should count as a loss for him. Add in Congress’s failure to hold the second confidence vote, and he has the two failed votes he needs to call new elections. 

Well, once Vizcarra declared Congress dissolved, Congress counter-declared that the President was breaking the law and suspended him from office for a year. Mercedes Araoz then became president. Article 114 allows Congress to declare the president “temporarily incapacitated.” Once again, though, that is supposed to be an equivalent of the 25th Amendment, something to be used when the president is, well, temporarily incapacitated. Article 117 concerns removing the president, by trial.

But back in the bad days of Alberto Fujimori, in 2001, Congress did remove him from office after he fled the country. Fujimori tried to resign, a la Nixon, but Congress insisted on holding the vote. I don’t think anyone intended to establish a precedent, but they did, so now Congress has suspended the President for a year and elevated his Vice-president in his place.

I should mention here that the opposition tried to remove Vizcarra permanently, but they didn’t have the votes. I don’t know if that was because legislators couldn’t stomach the outright unconstitutionality and preferred to have the fig leaf of Article 114 or if it was for some more Machiavellian reason.

Politically, my sympathies are with the President. It’s clear that the opposition has been playing constitutional hardball. They haven’t been breaking rules and nor has the government; Peru isn’t Bolivia or Honduras, let alone Nicaragua or Venezuela. But they have been playing to the letter of the law in an extremely destructive way.

I don’t suppose it matters. Right now you have Peru with two people claiming to be the legitimate president and no clear-cut constitutional case. Nonetheless, this was not how the framers of Peru’s constitution expected things to go. They did expect that the confidence vote would get priority and they did not expect the Congress to be able to remove the President with a simple vote, even temporarily.  

This won’t lead to civil war or a military coup (the military backs Vizcarra). But it is sobering and it is ugly. And closer to home, it should remind us of where constitutional hardball could lead here in the United States. I am glad that Mitch McConnell recognizes that if the house votes to impeach then the Senate has to hold a trial, but he could have gone the other way. He did in the Merrick Garland case. Republicans have elsewhere, and Democrats are tempted to follow suit.

And that will, as Peru shows, inevitably end in tears. The only question is how many tears.

International law and national constitutions

Many judicial conservatives decry the use of international law, treaties, and precedent to make decisions. They fear that allowing such inputs into decisions will weaken American constitutional norms.

I think they are almost certainly wrong, at least in the case of the United States. But the fear is not crazy.

Consider Bolivia, where Evo Morales is running for re-election in explicit contravention of the national constitution. How did that happen?

Well, in 2017 the SCOPNOB (Supreme Court Of the Pluri-National State Of Bolivia) declared that the constitutional article limiting president re-election is against the constitution. How did that happen? Well, the court decided that term limits contradicted article 23,24  and 29 of the Convención Americana sobre Derechos Humanos.

Relevant portions of the Convención:

Article 23:  Every citizen shall enjoy the following rights and opportunities:

a. to take part in the conduct of public affairs, directly or through freely chosen representatives;

b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and

c. to have access, under general conditions of equality, to the public service of his country.

The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.

Article 29:  Restrictions Regarding Interpretation

No provision of this Convention shall be interpreted as permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein.

In short, the Bolivian court ruled that term limits restricted President Evo Morales’s right to “to have access, under general conditions of equality, to the public service of his country.”

Now, the court also referred to Articles 26 and 28 of the Bolivian constitution, but those are pretty clearly written to allow for term limits. The real kickers were articles 23 and 29 of the American Convention, with article 24 (which parallels the equal protection clause of the 14th Amendment to the U.S. constitution) as a sweetener. 

Realistically, the Bolivian court probably would have ruled the way that it did regardless of the convention. The decision was a political one in a country with weak rule of law. 

But. But. There is a logic behind interpreting the clauses of the American Convention to obviate term limits. It helps that Article 13 of the Bolivian constitution explicitly say that “the rights and duties consecrated in this Constitution shall be interpreted in accordance with the International Human Rights Treaties ratified by Bolivia.” 

And that logic has resulted in the perfectly ridiculous spectacle of a Supreme Court declaring a procedural part of the constitution to be unconstitutional because everyone has a human right to become President. 

Correction: Colombia does not have birthright citizenship and seems to be trying to avoid letting Venezuelans get it

 In the Western Hemisphere, birthright citizenship is close to universal. I thought that this included the Republic of Colombia, as did the author of this article in the Harvard Human Rights Journal. 

But it turns out that Colombia is an exception. But it is not clear-cut. Here is Article 96 of the 1991 Constitution:

Article 96. Colombian nationals are:

1. By birth: 

(a) Natural-born Colombians, under one of two conditions: that the father or mother were natural-born or nationalized Colombians or that, being children of foreigners, one of their parents were domiciled in the Republic at the moment of birth.

(2) The children of a Colombian father or mother who were born overseas and later domiciled in Colombian territory or registered in a consular office of the Republic.

So what is the definition of the word “domiciled”?

Colombian jurisprudence has held that “domiciled” does not mean “resident.” A 1993 law made it more specific: “Residence is understood as residence in Colombia accompanied with the intention to remain in the national territory according to the relevant stipulations of the civil code.”

Or, if that wasn’t clear: if you don’t have legal permission to reside in Colombia, then your Colombian-born children don’t automatically get Colombian citizenship.

Specifically, if you want your kids to be natural-born Colombians, then you need to have a type R resident visa; a type M work, marriage, partnership or business visa or a type TP3, TP4, TP5, TP7, TP9, TP10, or TP15 temporary visa. Now, in case you were wondering, it turns out that refugees qualify for a TP9 visa. (The link explains all the TP visa types.)

But here is the rub. Decree 1288 granted some sort of permanent status to 442,462 Venezuelan refugees, on top of the 380,000 who had already gotten legal status. Holders of the new status can work in Venezuela and access public services. 

The Venezuelans do not get TP-9 visas. Rather, according to Article 2 of the implementing regulation, they get a two-year renewable something “issued in order to authorize the stay of Venezuela nationals who find themselves in the national territory without the intent to settle permanently, which is why it is not equivalent to a visa.”

This strikes me as a bad idea. I understand why the Colombian authorities want to pretend that the Venezuelans will all go home soon. But that is a bad bet. It is hard to imagine that granting TP-9 visas instead of the temporary whatever-it-is would engender that big an outcry. But it would at least insure that you avoid creating an underclass should things not work out and the millions of Venezuelans wind up staying in your country.

Unless there is some legal requirement at work, Colombia really should change this policy. As insurance for their own future. Because some eggs cannot be unscrambled, and the great Venezuelan exodus is beginning to look like one of them. 

A thought on a partisan Supreme Court

I am not as worried about the prospect of a conservative Supreme Court for the same reasons as most progressives.

Now, I think that lessening the protections of Roe v. Wade will be a disaster for poor women living in red states. I also think that decisions weakening worker rights and collective bargaining will be bad for people in the lower half of the income distribution. And I think that weakening the ability of regulatory agencies to do their jobs will worsen life for many while providing few benefits: the Administrative Procedures Act of 1946 plus the Regulatory Flexibility Act of 1980 and Congressional Review Act of 1996 provide plenty of checks on their power.

And a new conservative court is going to make it harder to get an abortion, harder to join a union, and harder to regulate the economy. 

That said, political action can cancel out adverse judicial decisions in all of the above. The only way a conservative SCOTUS could block a political counterreaction would be take us all the way back to Lochner v. New York. And that seems unlikely.

But it looks like a conservative SCOTUS will play hardball on gerrymandering and voting rights. They have already shown it. And they will play hardball on executive action. John Roberts will try to limit any outright partisan favoritism, but just wait until RBG leaves the court with a Republican president in office. 

A partisan Supreme Court willing to put its finger on the election scales, well, that is a threat. I am not sure that it is a threat the Founders ever considered, but there are a lot of political developments that they did not consider. Hell, they thought they had designed a system that would prevent political parties and then they themselves went right out and built the Federalists and Republicans. 

The “good” thing about the Kavanaugh hearings, I suppose, is that SCOTUS decisions will now be watched closely by the public. But I view a Court that is both biased towards property and against voting rights with trepidation. 

So, what changes to prevent a purely partisan SCOTUS? Well, there is a proposal for staggered terms. There are also some more off-the-wall reform proposals. Mine would stick with life terms, but with a Congressional supermajority requirement and a clause automatically appointing a caretaker Justice chosen by a professional panel of Congress cannot agree. But none are likely to happen with our clunky amendment procedure. I fear that they will not happen before we see a far more serious breakdown.

Mexico’s amendable constitution

That’s “amendable,” not “amenable.”  

Too many observers have recently declared that Mexico’s energy reform is safe, because it was enshrined in the Mexican constitution as an amendment. And why would they be wrong? Amendments certainly look difficult to change. It takes a 2/3rds majority of both houses of Congress and a majority of the state legislatures to pass one. That certainly looks like a high bar!

Except that if the bar were really high, the Constitution of 1917 wouldn’t have been amended 232 times in 101 years. Or 64 times in the past dozen. That’s right, Mexico has been amending its constitution once every ten weeks.

For whatever reason, an amendment process that is on paper equivalent to the United States is in practice much much easier. How did that happen?

Let’s start by saying what did not happen. Many analysts, yours truly included, thought the high amendment rate of the Mexican constitution was a epiphenomenon. The phenomenon was that Mexico was a one-party state in which the written Constitution did not matter. Since the constitution did not matter and the ruling party controlled all branches of government, amendments could be passed for propaganda reasons and without consideration of their effects.

Sounds good, right? The problem with the above hypothesis is its converse corollary: If the Mexican constitution was amended all the time because the country was a one-party dictatorship, then the amendment rate should fall when it becomes a multiparty democracy.

Well, sometime around 1997 the country became a multiparty democracy. But the rate of amendment rose from 1.6 amendments per year to more than five. So much for that idea, then.

So what is the reason?

The first thing to keep in mind is that Mexican political parties are much more centralized than their American equivalents. When the party bosses say “jump,” (most of) the legislators ask “How high?” For example, once energy reform made it out of the Congress, it took only 83 hours for a majority of the state legislatures to ratify. Imagine that happening in the United States.

Second, the President can introduce amendments under his or her power to introduce legislation. Until 2012, they could introduce them straight to the relevant committee. In practice, that means that a Mexican president can almost always get their preferred amendments to the floor for a vote.

Third, Mexican parties are more transactional than ideological. The PRI can turn its positions on a dime for electoral (or other) advantage. The Green Party, despite its, name, is not particularly concerned about the environment. Rather, it is a family enterprise, winning seats in order to collect federal subsidies which it uses to maintain its seats, parceling out votes to the highest bidder.  The PAN and PRD are a little more ideological, but the PAN in particular has a long and successful history of logrolling and the PRD has split. 

Finally, Mexican politicians have no choice but to amend the constitution if they want to govern. Too many policies are enshrined in the Mexican constitution. The bloody thing is now 61,765 words long, up from 27,122 back in 1917. If Mexican politicians suddenly developed stronger norms about amendments, then the country would become ungovernable.

To put this in context, Mexico isn’t the only Latin American country with a flexible and overly-detailed constitution. The difference is that the other countries have amendment process that look easy. Colombia’s 1991 constitution runs 47,383 words and has been amended at almost as high a rate. But with a few exceptions, Colombia’s constitution can be amended by two consecutive majority votes of both houses. That is barely a bar at all.

The Brazilian  constitution is only a little bit harder to amend: you need 60% of both houses to vote twice. The Peruvian constitution (which is a paragon of brevity at 18,341 words) allows for amendments with either a majority vote plus referendum or a two-thirds vote of Congress twice. It’s no surprise that those countries alter their constitutions with regularity. What makes Mexico unique is that it has an amendment process that looks fairly onerous … but isn’t.

In other words, Mexico suffers from many many ills, but legislative gridlock is not one of them. That is a good thing, but it means that supporters of the energy reform shouldn’t get too complacent. It wouldn’t take the second coming of Lyndon Baines Johnson to undo the amendments. It would just take some political skill. Of which there is no short supply in Mexico right now.

Now, that is not to say that I think reform is about to be completely undone ...

How Canada stopped being British

Montreal is a fascinating place. And so, in honor of being here, a few random Canadian posts.

You may be aware of the recent Australian citizenship kerfuffle. Basically, the Australian constitution prevents anyone with double-citizenship from holding public office. The exact phrase is, “Is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power.”

That is a little weird. As is the fact that the Australian high court held that it was enough to be eligible for foreign citizenship. Weirder still is that people appear to have only recently realized that this clause exists, and so a number of politicians have had to resign.

But what really struck me was the identity of three of the four “foreign powers” causing the trouble: New Zealand, Canada, and Britain. (Plus Italy.) None of these were foreign in 1901, when the Australian constitution was written. Anyone born in Canada, Australia, New Zealand, South Africa, or Newfoundland was a natural-born British subject. (The link goes to the British Nationality Act of 1914, versions of which also passed in all the Dominions.)

Today, though, Australian law treats all the former dominions (including Ireland, which was grandfathered in at independence) as completely foreign countries. Since 1984, Commonwealth citizens have had no benefits in Australia, although they are still allowed to vote if they arrived before that year. In Canada, Commonwealth citizenship also confers no benefits of which I am aware. In the U.K. itself, there are a few.

So, in honor of the fact that I am in Montreal, when did Canadians stop being British? Well, the short answer is 1946, when Canada passed the Citizenship Act. Except that is not quite right! The separation started earlier and took longer to complete.

The Canadian government first limited the right of Britons to settle in Canada in 1910, under the Canadian Immigration Act of 1910. The act allowed the government to deport immigrants who were “unsuited to the climate or requirements of Canada” or who had traveled courtesy of a charitable organization. The first requirement was laser-aimed at black Americans; the second at poor Britons. The act introduced the phrase  “Canadian citizen” which included “a British subject who has Canadian domicile” but which also made it clear that such domicile was not automatic. 

Ironically, the Canadian attempt to discourage Britons from emigrating flipped to encouragement after WW1, when the Empire Settlement Act of 1922 authorized Parliament to spend up to £3 million per year, the equivalent of roughly C$167 million today. Canada wanted Britons, you see, but only the right sort of Briton. 

In 1921, the Canadian Nationals Act defined Canadian nationals as British subjects who were born in Canada or who legally resided in Canada for more than five years. Weirdly, anyone naturalized in Canada would become British subject able to freely move to Britain, but being a British subject did not mean that you automatically had the right to move to Canada. 

So there was a de facto Canadian citizenship in place well before 1946.

Moreover, the special place of British subjects did not disappear after 1946. British subjects could still vote in Canadian elections after only one year of legal residency. In fact, British subjects Commonwealth citizens didn’t lose the right to vote in federal elections until the Canada Elections Act of 1970; even then, they could vote in provincial elections in B.C. and Ontario until 1985, New Brunswick until 1999, and Nova Scotia until 2006. (See pages 12-13.*) 

The slow distancing of Canada from the United Kingdom seems to have been an entirely unplanned thing. I would have thought that Québécois opinion had a lot to do with that, but I would be wrong. London just kept handing off autonomy to its North American colonies bit by bit. Each bit of devolution became harder to reverse. Moreover, London refused to graft any institutional meat onto the rotting bones of its Empire, forestalling any chance that the Commonwealth might turn itself into something like NATO or the E.U. or even a glorified free trade zone.

My current hypothesis is that the key decision was to grant the Dominions the right to set trade policy. Once they had that, they had interest groups that would refuse to reverse integration in that key sector. Add to that a very understandable reluctance to get the colonies to contribute towards their own defense and you had nothing but straight decline into irrelevance. In other words, socialist beer destroyed the British Empire.

Still, it is sort of amazing just how weak the links have become between the U.K. and its settler colonies, the ones that didn’t fight a war of independence.

* Willem Maas, “Access to Electoral Rights Canada,” Access to Electoral Rights Report RSCAS/EUDO-CIT-ER 2015/9 (July 2015). 

The Spanish government is making a serious mistake

Cataluña ... Catalunya ... is going to vote on independence on October 1st. The vote is sanctioned by the Catalonian regional government but is illegal under Spanish law. A Spanish court, therefore, just blocked the referendum.

So far, fine. Spanish courts need to uphold Spanish law. More generally, as I have said elsewhere, I am opposed to secession from democratic states save when recent violence has made reconciliation impossible. In concrete terms, that would limit the historical cases of justified secession from a democracy to only three: Ireland 1922, Algeria 1961, and Kosovo 2008. Cataluña does not clear that bar.

But the above did not count on Prime Minister Rajoy’s unerring ability to alienate Catalans. He wasn’t satisfied to let the judicial system do its work. No, he had to order his attorney general to publicly announce that any Catalan legislators who voted to allow the referendum would be prosecuted. Get that? It is not enough for judicial review to invalidate an unconstitutional law. The people who voted for that law need to be thrown in jail. 

And this is a pattern. The only reason independence is getting this far is that Rajoy filed suit at the Constitutional Court to overturn Cataluña’s Statute of Autonomy. Some background. The Spanish State is not a federation. Article 2 of the Constitution maps out the powers that the Spanish State can devolve to the autonomous communities. Article 155 makes it clear that the central government retains power over the communities. In practice, Parliament has voted to devolve to the communities many more powers than retained by states in many genuinely federal countries. 

The Statute of Autonomy that kicked off this whole mess had to be approved by the Catalan parliament, the Spanish parliament, and a Catalan referendum. It passed the Spanish parliament with a 58% majority. So it had broad support inside and outside Cataluña. The People’s Party did not need to take a case to the Constitutional Court. It chose to, meaning that it chose to inflame Catalan public opinion.

The Spanish government should just sit back, let Cataluña have its referendum, and then ignore the results. Independence might not win. Even if it did, the Spanish government could just refuse to negotiate.

But even if PM Rajoy finds that unacceptable, threatening to arrest nationalist politicians is the absolute stupidest thing he could do.

Venezuela’s 1999 constitution always contained a press-here-for-dictatorship button

Francisco Toro has an excellent translation of Venezuela’s political crisis into an American context in today’s Washington Post. Read it!

It does have one flaw, however, which is that it intimates that the 1999 constitution prohibits Maduro from trashing the constitution. That’s not quite right.

Part of Toro’s translation of Venezuelan events to an American context runs as follows:

President [Trump] is not out of the woods yet. He’s still massively unpopular, protests rock the streets of Washington every day,and he still has to face the voters in November 2020. Realizing he can’t win — his approval rating hovers around 20 percent — he opts for a radical course of action: He invokes Article V of the Constitution to convene a Constitutional Convention, and signs an executive order setting out an unprecedented method for selecting members of that convention.

Article V of the constitution of the United States is pretty clear: the president has nothing to do with calling a convention. That power resides with state governments:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Articles 347 to 349 of the constitution of the Bolivarian Republic are rather less clear. In fact, if read literally, they contradict each other. First click the link and read the Spanish. Now my translation:

Article 347: The original constituent power rests with the people of Venezuela. In exercise of this power, it may call a National Constituent Assembly for the purpose of transforming the State, creating a new juridical order and drafting a new Constitution.

Article 348: A National Constituent Assembly may be called by the the President of the Republic in consultation with the Cabinet; the National Assembly via the approval of two-thirds of its members; by the county councils in open session via the vote of two-thirds of same; or by 15% of the voters inscribed in the civil and electoral registry.

Article 349: The President of the Republic shall not have the power to object to the new Constitution. The existing constituted authorities shall not be permitted to obstruct the Constituent Assembly in any way. Once the new Constitution is promulgated, it shall be published in the Official Gazette of the Bolivarian Republic of Venezuela or in the Gazette of the National Constituent Assembly

Some lawyers claim that Article 347 implies that a referendum is needed in order to call a constitutional convention. Maybe it does, but it sure doesn’t say that. And the next article, Article 348, explicitly says that the President can call up a constitutional convention by his or her very own lonesome, limited only by the cabinet.

It seems like old Hugo Chávez knew what he was doing back in 1999 by including a reset button in his constitution. I have no idea when or if he might have thought it would be needed, but it was there. Press here for dictatorship, indeed. 

Argentina is not as bad for investment as it seems

The Fraser Institute publishes an annual list of the most and least risky jurisdictions for mining investments. The index combines political and geologic attributes: New Jersey is a great place to invest, but there are not a whole lot of mineral resources. 

Number one is Saskatchewan, followed by Manitoba, Western Australia, Nevada, Finland, Quebec, Arizona, Sweden, Ireland, and Queensland. Not a whole lot of surprises there.

But the bottom? The worst ... uhhh ... counting up from the bottom, the worst are Jujuy, Neuquén, Venezuela, Chubut, Afghanistan, La Rioja, Mendoza, India, Zimbabwe, and Mozambique. Fully half of the jurisdictions on the list are Argentine provinces.

Whoa.

But it turns out that the issue really isn’t national. Salta, for example, performs ok, a little better than Colorado and Alberta. Ditto San Juan, and Santa Cruz is respectable. So what is with the underperformers?

Well, the issue seems to be environmental regulation. Consider Chubut. It banned the use of cyanide in open-pit mining in 2013. Then a petition put a bill to prohibit uranium and thorium mining on the legislative agenda. What came out was a bill that putting mining in the hands of local governments. Mining companies were less than thrilled. 

Mendoza has a similar ban on the books since 2007. Neuquén is considering one: a Chinese proposal for a copper mine was voted down by Loncopué county in a vote of 2,125 to 318. La Rioja repealed its anti-mining laws in 2008, but mass demonstrations in 2012 forced the governor to suspend the operations of a Canadian gold mine. (That sounds terrible ... but note that the Canadians could have taken Argentina to arbitration under this 1993 treaty but chose not to do so.) 

It makes complete sense why mining authorities would hate this, but it is the not the same thing as the expropriation risk faced in Venezuela. It is just good old-fashioned democratic politics in action.

The Macri administration is trying to convince the provinces to loosen their restrictions. The Argentine constitution is a bit vague on mining laws. Article 7, Section 12, gives Congress the power to write a mining code, “without such codes altering local jurisdictions.” Article 124 gives the provinces control over natural resources; but Article 126 prohibits them from enacting mining laws once Congress has enacted a federal law. In practice, this means the new laws will be negotiated with the provinces, which can of course use environmental or health laws to close unpopular operations. Foreign miners expect a bill this week; we will see if it happens. 

Fiscal insanity in Brazil

 I have to admit that I do not understand the conventional wisdom that pins Brazil’s current recession on Dilma’s fiscal policies. I kind of understand that profligacy made the situation worse, by forcing the central bank to raise interest rates by more than it otherwise might have done in the face of higher inflation. But that is a second-order effect. I completely understand the argument that most federal spending in Brazil is misplaced and the state serves as a drag on long-term growth. But that is a long-term problem that has to do with the nature of federal spending and not the absolute level. 

In other words, the proposed constitutional amendment to limit the level of Brazilian spending to the level of inflation for the next 20 years seems crazy. But it is actually even crazier than that. The amendment would not include the following:

1. The 61% of all federal spending that happens via federal agencies outside the executive, legislative, and judicial branches;
2. The revenue that the federal government has to turn over to the states under Articles 157 and 159 of the constitution (49% of all income tax revenue, 10% of VAT revenue and 29% of all hydrocarbon revenues);
3. Guaranteed education spending under Article 212 (18% of all revenue);
4. Police and fire spending in Brasilia.

These categories are overlapping, so it is not clear how much total spending is exempted. But it is a lot. Unfortunately, a lot of basic state functions are hit, like, you know, police, courts, universities, public defenders, and most regulatory agencies. But not the fastest-growing ones and not the ones that generate the most waste.

In other words, it is crazy on every level. It is a crazy proposal that gets worse in implementation!

I call on Aldo Musacchio or Lee Alston for help. Help? Why is President Temer pushing this?

The U.S. would not have had a better constitution without the Revolution

Dylan Matthews’ third point in his screed about why the American Revolution was a mistake is that without the Revolution, we would have had a Westminster-style parliamentary government, and parliamentary governments are better.

I grant the point about parliamentary government. The U.S. constitution is a mess, at least as a governing document. It sets up multiple veto points and is quite unsuited to disciplined, ideological parties. The Canadian constitution, as it currently stands, works quite a lot better.

But the United States would not get the current Canadian constitution if we had not fought the Revolution.

Consider the Canadian constitution as it stood in 1867. It possessed this giant monstrosity called the Senate: an appointed chamber deliberately set up to represent the regions and throw sand into the legislative gears. And the Senate did just that! Occasionally, it rejected major reforms: in 1926, for example, the Senate axed Canada’s first attempt at a social security system. 

The Canadian senate, however, soon became remarkably deferential to the lower house. (For example, the failed 1926 social security bill sailed through unchanged the next year.) That is in part because the Prime Minister can appoint more senators, but mostly it is because the institution does not have the legitimacy to use its de jure powers to the fullest. It is not quite the House of Lords, but it’s close.

Now imagine designing a constitution for a British North America that includes a bunch of slaveholding states provinces. One might imagine that you would get an institution rather like the Canadian senate. But does anyone believe that politicians from the slave states provinces would hesitate to use every power at their disposal to protect their control? The end result would be an upper house that would be even more of a dog’s breakfast than our own.

And that assumes that you even get a united British North America without the Revolution! I will admit, it seems likely that the British colonies would eventually federate. But I mostly think that because Canada, Australia and South Africa eventually did federate, even if New Zealand and Rhodesia kept out of the latter two. Blind analogy is probably not a good reason to assume that British North America would go the same way.

Having North America divided into ... uh .... somewhere between 13 and 16 different autonomous entities under the British crown is not a recipe for good government. Give me the Senate instead of balkanization! Hell, give me the even messier constitutional wreck that is the European Union. 

In other words, claiming that North America would have had a better constitution absent the Revolution is ahistorical smoke blowing. Wasn’t gonna happen. 

Norms and D.C. statehood

 There has been a slow disintegration of political norms in America. Filibusters, for example, are now commonplace. So are holds on executive appointments. Motherhood bills are politicized. Frex, House Appropriations Committee Chairman Harold Rogers (R-Kentucky) is holding up a bill to fight the Zika virus for some partisan reason. Zika! 

Which makes me wonder. The next time Democrats have full control of Congress, it would be very easy to pass a D.C. statehood bill. That would give the Democrats two additional safe seats in the Senate and one in the House. Moreover, it would force the Republicans to support an additional constitutional amendment, lest the inhabitants of the rump District of Columbia receive three automatic electoral votes under the 23rd Amendment. 

Giving D.C. statehood vaguely feels like gerrymandering. In fact, that is what some prominent political scientists told me in a car in Chicago. But they also told me that they think suburban representatives like their influence over the District more than they like being in the majority, and that does not make sense.

So it would seem that the only reason for the next fully Democratic congress to refrain from making a District statehood bill job one would be a sense of propriety. And why would anyone care about that anymore?

Yet, somehow, my gut is that the Democrats won’t do this obvious thing the next time they have untrammeled power.

Why do I think that? I need some clarification to explain why my gut disagrees so strongly with my brain.

The beginning of the end of Venecuba was in 2007

Venezuela has a special relationship with Cuba. The number of Cuban officials who can be found throughout the Bolivarian government is quite astounding, as is the volume of financial aid that Venezuela grants its Cuban partner. Moisés Naím has a good piece on it at the Financial Times, although it relies too much on a qualitative picture for my taste.

There are two things to note about “Venecuba,” as Hugo Chávez once called the alliance.

The first is that the two countries reached the current level of integration fairly early, around 2008. Evidence? One estimate for 2008 is that transfers to Cuba came to $5.6 billion in payments for Cuban officials working inVenezuela and $2.5 billion in subsidies for oil sold at $27 per barrel. (See page 109.) For 2010, the same source estimated the value of the same two transfers at $5.4 billion for personnel and $2.8 billion for oil. (See also here.) That is not a big change.

Ernesto Hernández-Catás (using a different methodology) gets the same result: not a whole lot of change in net Venezuelan transfers (in billions of current US$) after 2008:

The more qualitative reports of Cuban officials operating inside the Venezuelan state are harder to measure. But it should be noted that the U.S. was worried about Cuban influence in the foreign ministry and the Cuban presence in Venezuelan ports in 2008. Juan José Rabilero, the coordinator of Cuba’s Committees for the Defense of the Revolution, boasted, “We have over 30,000 members of Cuba’s Committees for the Defence of the Revolution in Venezuela” ... in 2007.

In short, the Cuban-Venezuelan relationship reached its peak around 2007-08. That is not to say that the relationship isn’t an astoundingly tight one. It is. It is to say that it hasn’t gotten much tighter since ‘08.

The second thing to note about Venecuba is that there was a lot of talk of deeper union in 2007. The State Department noted this in an internal cable. The political benefits of greater institutionalization were obvious. It would secure Cuba’s access to Venezuelan resources and make it easier for President Chávez to call on Cuban support to help him cement his control over Venezuela. Randy McDonald discussed the idea here.

So what happened? One possibility is that plans to institutionalize the Venecuban links were just hot air. That was true of a lot of Hugo Chávez’s initiatives.

But that isn’t what happened. What happened was that Chávez put the possibility of a federation before the Venezuelan people in 2007 and got beat at the ballot box. Here’s the story. Chávez proposed a series of constitutional amendments to the National Assembly in 2007. In the Assembly, his party added a series of additional amendments. (This almost certainly occured under the supervision of the executive branch.) Among them were reforms to Articles 152 and 153.

The original text of both articles read as follows:

Article 152: The international relations of the Republic serve the ends of the State as a function of the exercise of sovereignty and the interests of the people; they are governed by the principles of independence, equality between States, free self-determination and non-intervention in their internal affairs, the peaceful resolution of international conflicts, cooperation, respect of human rights and solidarity among peoples in the struggle for their liberation and the welfare of humanity. The Republic shall maintain the finest and most resolute defense of these principles and democratic practices in all international organs and institutions.

Article 153: The Republic shall promote and encourage Latin American and Caribbean integration, in the interest of advancing the creation of a community of nations, defending the region’s economic, social, cultural, political and environmental interests. The Republic shall have the power to sign international treaties that implement and coordinate efforts to promote the common development of our nations, and to ensure the welfare of their peoples and the collective security of their inhabitants. To these ends, the Republic may transfer to supranational organizations, through treaties, the exercise of the necessary authorities to carry out these integration processes. In its policies of integration and union with Latin America and the Caribbean, the Republic shall give privileged status to relations with Iberoamerican countries, striving to make this a common policy throughout our Latin America. Provisions adopted within the framework of integration agreements shall be regarded as an integral part of the legal order in force, and shall be applicable directly and with priority over internal legislation.

The new versions would have read:

Article 152: The international relations of the Republic are based on the full exercise of the sovereignty of the Venezuelan state and are governed by the principles of: political independence, equality of States, self-determination and non-intervention in internal affairs, the peaceful resolution of international conflicts, defense and respect of human rights and solidarity among peoples in the fight for their emancipation and the welfare of humanity. The Republic shall develop the finest and most resolute defense of these principles in international organs and institutions, fostering their permanent democratization for the construction of a just and balanced order. The foreign policy of the Republic shall be actively oriented towards the construction of a multipolar world, free from the hegemony of any imperialist, colonialist, or neocolonialist power center. In order to guarantee that this article be carried out, the Foreign Service is declared a strategic activity of the State. Its organization and functioning will be established by law.

 Article 153: The Republic shall promote the integration, Confederation, and Union of Latin America and the Caribbean with the aim of configuring a great regional political, economic, and social power bloc. In order to obtain this objective, the State will favor the construction of new models of integration and union across our continent, to permit the creation of a geopolitical space within which the peoples and governments of our America shall construct a single supranational project, which Simón Bolívar called “A Nation of Republics.” The Republic may sign treaties and international conventions based on the broadest political, social, economic and cultural cooperation, supranational productive complementarity, solidarity, and fair trade.

In practical terms I cannot make heads-or-tails of either article ... but as a statement of principle the reform is clear. The original version committed the Bolivarian Republic to defending motherhood in article 152 and enabled the construction of something like the European Union in Article 153. The new version changed that. Article 152 now committed the country to an effectively anti-American foreign policy. Article 153 declared the aim of uniting as much of Latin America as possible into an anti-American confederation.

At the time the reform of Articles 152 and 153 was seen as part of the Venecuba trial balloon.

Anyway, the Venezuelan electorate narrowly defeated the reform at the polls. These reforms were not the main reason for the loss, of course, but President Chávez decided that he had pushed de jure union with Cuba as far as it could go. He had also pushed the de facto alliance as far as possible. And that was the end of that.

But not of Cuban involvement in Venezuela, for better or for worse. To be perfectly frank, I believe that the Cuban presence is both very large and largely inconsequential.

The partisan calculus behind the national popular vote

Can the constitution be changed without changing the Constitution? Well, yes. Obviously. The Supreme Court can change an interpretation. Congress can establish procedural rules (frex, the filibuster). And states can alter the way they select electors to the Electoral College.

New York state just approved the National Popular Vote Interstate Compact, which commits states that sign it into law to allocating their electors to the winner of the national popular vote rather than the winner of their state election. If states sign on representing a majority of the Electoral College (e.g., 270 electoral votes) then the U.S. will fundamentally alter the way it elects presidents. Here is the current state of play:

Note that only blue states have signed on. Why is that? Well, I don’t know, but here’s my guess. A national popular vote would behoove both parties to try to mobilize voters that are currently ignored in non-swing states. Republicans would try to turn out conservatives in Wisconsin and New York; Democrats would go after liberals in Texas and Georgia.

Democrats are pretty sure that there are a lot of untapped votes in deep red states. I am not sure that Republicans believe the same about the blue states. But I do not know! Thoughts?

Observatorio argentino 25: How many constitutions has Argentina had?

The Economist drew attention to two interesting articles on constitutions and constitutional reform: one paper by Gabriel Negretto of CIDE and another paper by Jose Luis Cordeiro.

The two papers have very different definitions of what it means to replace a constitution. Cordeiro, for example, dates Argentina’s constitution to 1853. (Page 6.) Negretto, on the other hand, dates the current constitution to 1994. Who is right?

Negretto uses two definitions for a “new” constitution. First, did the framers claim that it was new? Second, in cases of doubt, were the changes enacted by a constitutional convention?

The first definition is a problem for Argentina. You can find popular references to the “Constitution of 1994,” but the callers of the constitutional conventional of 1994 were very explicit that the purpose was to amend the existing constitution. In fact, the text of the Congressional resolution calling for the convention starts with: “It is declared necessary the partial reform of the national constitution of 1853 including the amendments of  1860, 1866, 1898 and 1957.”

It should be noted that all of the above-mentioned reforms were passed by means of constitutional conventions called by Congress.

Moreover, it should be noted that there was no way to change the Argentine constitution without calling for a convention! Here is a translation of Article 30 of the constitution as it stood before the 1994 reform: “The Constitution can be amended in all or some of its parts. Congress shall declare the need for reform by a two-thirds vote of its members; but no amendment shall be carried out without a Convention called for that effect.”

As for the 1994 reform, they held elections to the required Convention on April 10, 1994. Congress set out the terms of the election in Article 10 of the resolution calling for the amendments. The Peronists received 37.7% of the vote and 44.6% of the seats; the Radicals got 19.9% of the vote and 24.6% of the seats. (See page 26.) The convention then put meat on the bones of the reform that Congress had passed.

It seems to me that Argentina is still governed by the Constitution of 1853 and has, in fact, amended its magna carta rather less than us Americans.

In short, Negretto is wrong. Oh, he is right by his own definition ... but that definition implies that the only way to amend the Argentine constitution is to replace the Argentine constitution. Since the Argentine congress can and does constrain constitutional conventions, that does not seem to be a reasonable definition.

I do not know enough about the other cases in his data set, but I would worry that his results depend on similar arbitrary definitions.

More details on oil reform: it is radical!

One advantage of having centralized political parties is that things can move fast. The PRI and PAN together control most state legislatures, which over the weekend ratified the constitutional amendments. Mexico’s energy sector is now reformed.

The real action, however, isn’t in the constitutional text, but in the transitory articles.

Here are the big takeaways:

1. Pemex is turned into just another big oil company, although it will retain a few advantages when competing for blocks;
2. Pemex loses control of natural gas distribution, ending its conflict of interest between the country’s need to import more gas and the company’s desire to keep gas prices high;
3. Oil blocks can be thrown wide open to concession agreements should Congress so desire (which appears to contradict the reformed text of Article 27);
4. The Mexican Petroleum Fund is a damp squib that is unlikely to make any difference. Mexico is not about to wield a world-purchasing sovereign wealth fund, a la Norway.

Details:

Article 1 is boilerplate, stating that the amendments and transitory articles will take effect when they are published in the Diario Oficial de la Federación, e.g., after half the state legislatures finish ratifying them.

Article 2 preserves existing labor rights. Considering the amount of change that Pemex is about to be hit with, that’s vital to preserving labor peace. I shudder to think what might happen otherwise.

Article 3 is an actual transitory article mandating that Congress pass laws turning Pemex and CFE into “productive state enterprises.”

Article 4 ditto: it gives Congress 25 days to create the laws enabling service contracts, production sharing agreements (PSAs), profit-sharing contracts, or licenses. It also mandates that Congress write its laws with the goal of maximizing public revenues.

This article lays to rest any doubt that “licenses” might mean something other than “concessions.” The giveaway is how it describes the payments due private contractors under the various forms. Service contractors will be paid in cash. PSA-signers will receive a percentage of the oil produced, whereas profit-sharing agreements will (rather intuitively) give the signers a percentage of the profits. License holders, finally, will be paid “with the delivery of title to the hydrocarbons once they have been extracted from the subsoil.” In other words, license holders will have the right to lift oil and gas, and once they have lifted it, then it will be theirs.

There is nothing wrong with that kind of arrangement, as long as the government has designed-well the auctions and imposes appropriately high royalties and taxes; with near-confiscatory windfall rates built in should prices rise high enough. But these arrangements are nonetheless concessions, pure and simple. How Mexican lawyers will reconcile this transitory article with the reformed text of Article 27 is beyond me.

Article 5 puts state enterprises — specifically mentioning Pemex — on the same footing as private enterprises. It also demands that they recognize that subsoil hydrocarbons are state property, not their property.

Article 6 gives the Energy Ministry the responsibility for allocating blocks to Pemex. It also forces Pemex to justify its allocations. In fact, it requires Pemex to apply with 70 days for the right to exploit its current blocks that are not under production. The Energy Ministry then has 180 days to approve the application.

There are a few wrinkles which give Pemex some advantages, but surprisingly few. In places where it’s currently begun exploring, it will be able to continue exploring for a minimum of three and a maximum of five years. It will, however, have to present a detailed exploration plan in order to do so.

In addition, if new allocations to other producers interfere with current Pemex operations, then it will be able to demand compensation.

Article 7 allows Congress to favor domestic Mexican companies when making allocations or signing contracts. This will also favor Pemex.

Article 8 basically says that when the right of the state to dig for hydrocarbons or string up transmission cables interferes with other property rights (such as, say, private mineral concessions) then the state’s rights shall prevail.

Article 9 mandates that all contracts with state or private enterprises be made with “maximum transparency.” It goes beyond the boilerplate, however. The contracts need to be (a) public; (b) subject to external audits paid for by the contractors; (c) clearly report all compensation in kind, taxes, and other payments.

Article 10 goes into more depth about how Congress should go about designing and regulating the contracts mentioned in Article 4. It also mandates that the President should send Congress a bill switching “general subsidies for subsidies focused on energy consumption.” Don’t ask me what that means.

Articles 10-15 go into a little more depth about the Mexican Petroleum Fund. First, it won’t manage tax revenues. This is interesting, because currently Mexico gets all of its oil revenue from taxes on Pemex. Presumably the petroleum tax code will need to be rewritten to allow foreign capital to enter; right now, taxes are high enough to push Pemex into the red.

Second, the fund will have to top off the fiscal accounts whenever oil tax revenue falls below the same percentage of GDP that it generated in fiscal 2013. (That number is not yet known, but in 2011 it amounted to 6.1% of GDP.) This applies even if the fund has to dip into its savings to do so.

Third, the fund has to be used to pay off federal debt (including, in effect, financing current deficits) up to a value of 3% of GDP. The text says “annual flows,” which apparently means income from oil revenues, not income from investments. This would seem to mean that the Treasury gets first dibs on oil income up to 9.1% of GDP.

In addition, an additional 0.15% of GDP is to be used to pay expenses associated with the (misbegotten) switch to private pensions, another 0.15% to finance renewable energy projects, and a final 0.15% to pay for research and training in the hydrocarbon sector. The transitory article explicitly allows Congress to modify these percentages.

In other words, the fund start looking for returns once public oil revenues top 9.6% of GDP.

Moreover, the value of the fund is effectivelycapped at 10% of GDP. After that, “the annual financial returns associated with the resources of the Mexican Petroleum Fund destined for long-term savings will be transferred to the Federation treasury.”

Article 16 instructs the President to order that all natural gas pipelines be transferred from Pemex to a new National Natural Gas Control Center. It isn’t clear how the Control Center will function, but if it allows private investment in pipelines then it could be, to quote Joe Biden, “a big f—king deal.”

Articles 17-21 are really what I would think of as transitory articles, instructing Congress to write various bits of enabling legislation and reform the legal code to bring the constitutional amendments into effect. But Article 21 opens the likelihood that Pemex’s union leaders will be stripped of their board seats: “Its organization, administration and corporate structure shall be in accordance with international best practice … Pemex’s professional board members in service at the time this decree comes into effect will remain in their offices until the end of the period for which they were nominated, or until said organism is converted into a productive public enterprise and a new Board of Directors is nominated.”

That is a pretty big change.

I do not know if transitory articles are considered full parts of the Constitution, or if Congress can change them via ordinary legislation. Either way, these add up to some major changes.

That said, deepwater development will still be slow, onshore tight oil and shale gas slower, and the biggest near-term change will likely be the rapid construction of pipelines from the United States to central Mexico. It is a revolution, but it is going to take time to play out.

The Mexican energy reform, not including the transitory articles

We brought you President Peña’s initial proposal here, and the PAN counterproposal here. We now bring you the text of the actual energy reform, minus the transitory articles. (Leaving out the transitory articles leaves out a lot; they will be in the next post.) Our comments will follow, but first we would like to hear your own.

As previously, new text is boldfaced, deleted text is struckthrough.

Article 25

...

The public sector shall be exclusively charged with the strategic areas mentioned in Article 28, paragraph 4 of the Constitution, permanently keeping for the federal government the property and control over the organizations and productive state enterprises that shall be established. With respect the activities referred to by Article 28 of this Constitution regarding electricity, petroleum and other hydrocarbons, the law shall establish the norms governing the administration organization, functioning, contractual mechanisms and other legal acts celebrated by productive state enterprises, as well as their salary structure, in order to guarantee their efficiency, honesty, productivity and transparency based on best practice, and shall determine in which activities they can engage.

...

Applying the criteria of social equality and productivity, and sustainability the State shall support and stimulate social and private enterprises, subjecting them to the dictates of public interest and the use of the productive resources for the general benefit, in order to preserve them and the environment.

...

The law shall encourage and protect private economic activity and provide the conditions under which the development of the private sector will contribute to national economic development, promoting competitiveness and  sustainable national industrial development policy, including industry-specific and regional aspects, under to the terms set forth by this Constitution.  

...

Article 27.

...

In those cases to which the two preceding paragraphs refer, ownership by the Nation is inalienable and imprescriptible, and the exploitation, use, or appropriation of the resources concerned, by private persons or by companies organized according to Mexican law, may not be undertaken except through concessions granted by the Federal Executive, in accordance with rules and conditions established by law, except in radio broadcasting and telecommunications, which will be granted by the Federal Institute of Telecommunications. The legal norms regarding the working or exploitation of the minerals and substances referred to in the fourth paragraph will govern the implementation and inspection of what is carried out or should be carried out after they go into effect, independently of the date at which the concessions are granted, and their non-observance will be grounds for the cancellation thereof. The federal government has the power to establish national reserves and to abolish them. The corresponding declarations will be made by the Executive Branch in those cases and conditions prescribed by law. With respect to petroleum and solid, liquid or gaseous hydrocarbons or radioactive materials no concessions or contracts will be granted nor may those that have been granted continue, and the Nation shall carry out the exploitation of these products, in accordance with the provisions indicated in the respective regulatory law. It is exclusively a function of the Nation  to generate, conduct, transform, distribute, and store electrical energy; to plan and control the national electrical system, as well as the public service of transmitting and distributing of electrical energy. In this field these fields no concessions will be granted to individuals and the nation shall make use of the goods and natural resources required to serve such purposes, without prejudicing the ability of the State to sign contracts with individuals under the terms established by law, which shall also regulate the form in which individuals can participate in other parts of the electrical industry.

With respect to petroleum and solid, liquid or gaseous hydrocarbons, the subsoil rights of the Nation are inalienable and absolute and concessions shall not be authorized. With the goal of generating income that shall contribute to the long-term development of the Nation, exploration and extraction shall be carried out via allocations to productive state enterprises or contracts with individuals. In whichever case, subsoil hydrocarbons are the property of the Nation and such should be affirmed in the allocations or contracts.

...

Article 28

...

State activities performed within the following strategic areas shall not be considered monopolies: mail service, telegraphs and radiotelegraphy, the exploration and extraction of petroleum and other hydrocarbons, radioactive minerals and nuclear energy production, the planning and control of the national electricity system and the public electricity transmission and distribution service, and the activities expressly stated in the laws passed by the Congress of the Union. ...

...

The State shall have a central bank that will be autonomous in its function and administration. It primary objective shall be price stability in terms of the national currency, in order to strengthen the State’s guidance of national economic development. No authority shall have the power to order to bank to provide financing. The State shall have a public trust fund called the Mexican Petroleum Fund, whose trustee shall be the central bank and which shall have as its object, under terms established by law, the reception, administration and distributionof all funds derived from the allocations and contracts referred to in Article 27, paragraph 7, of this Constitution, with the exception of oil taxes.

Somewhat more effective suffrage, some re-election?

The title of this post is lifted directly from Mexfiles, which has a post on the reform that you should all go read. It goes into some depth about the possible effect of allowing limited re-election and the federalization of election regulation.

It is also an awesome title. When Porfirio Díaz first assumed the presidency, in 1876, his slogan was “Sufragio efectivo, no reelección.” (“Effective suffrage, no re-election.”) Díaz duly stepped down in 1880. He then ran again and won in 1884. And 1888. And 1892. And 1896, 1900, 1904, and 1910.

The joke was that Díaz had simply misplaced a comma the first time around. Instead of ¡Sufragio efectivo, no reelección!, he had meant to write, Sufragio efectivo no, ¡reelección!

(A useful chronology of the Porfiriato can be found here.)

Anyway, at Mexfiles they are pointing out that the new reform is pretty limited. State elections (which are relatively clean now) will become slightly cleaner. (One of the bigger changes is that INE will be now be able to overturn elections in which the parties exceed their spending limits.) Meanwhile, deputies and senators will become very slightly freer from party control. (Very slightly.) Good mayors will be able to win re-election, but not enough to let them create political machines. In all, a sort of halfway house.

I agree with Federico. The reform seems important only because the PAN made it the price of energy reform. What I do not understand is why the PAN cares. After all, it is a little weird to say, “Give us something unimportant [political reform] in exchange for something that we really really care about [energy reform]!”

The whole thing strikes me as political kabuki, a way for the PAN to pretend that it isn’t just automatically approving whatever President Peña sets out.

Mexico’s energy reform: procedure and the PRI proposal

The Mexican Congress is pretty busy these days. I will try to write more about its peripatetic legislative calendar. But one of the big things on the table is energy reform.

President Peña has sent his proposal to Congress, but he has little more direct authority than an American president in getting it through. Article 71 of the Mexican constitution gives him the power to introduce legislation, which the American president does not have ... but that is a distinction without a difference. First, American presidents in practice have little trouble finding congressional allies to sponsor their desired legislation. Second, legislation introduced by the Mexican president goes into committee just like any other legislative initiative. 

In short, right now the Senate is in control. The Energy Committee will debate the reform, making changes as it sees fit. Whatever comes out will then go to the Senate floor. If it gets a two-thirds vote of approval, it will pass to the Chamber of Deputies for a new round of revision: first its Energy Committee, then the floor. Should the Chamber pass a different version than the Senate, there is no conference committee. Rather, there will be another round of ping-pong, followed either by the passage of a revised bill, the excision of the disputed parts, or it death. After that, it heads out to the state legislatures, where a majority need to pass it. You can find a nice flowchart of the process on page 5 of this document. (You read all about the normal legislative process here.)

The upshot is that what will come out of the process may have no resemblance to what goes in! The PRI cannot pass anything without either PAN or PRD support. It needs either or both opposition parties to get to ⅔.

The PRI has submitted a proposal. The PAN has also submitted a detailed and specific proposal. The PRD has called for specific reforms, but has also ruled out the need for constitutional changes.

So, as a public service, this blog will present to you the actual specific texts of the reforms. Here is the PRI legislation introduced into Congress. Strikethroughs show text to be removed from the Constitution; boldface indicates parts that will be added.

Therefore, by the powers invested in me by article 71 of the Political Constitution of the United Mexican States, submitted for consideration by this legislature is the following initiative:

DECREE FOR THE REFORMATION OF ARTICLES 27 AND 28 OF THE POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES

The sixth paragraph of article 27 and the fourth paragraph of article 28 of the Political Constitution of the United Mexican States are reformed so they read as follows: 

Article 27.

In those cases to which the two preceding paragraphs refer, ownership by the Nation is inalienable and imprescriptible, and the exploitation, use, or appropriation of the resources concerned, by private persons or by companies organized according to Mexican law, may not be undertaken except through concessions granted by the Federal Executive, in accordance with rules and conditions established by law, except in radio broadcasting and telecommunications, which will be granted by the Federal Telecommunications Institute. The legal norms regarding the working or exploitation of the minerals and substances referred to in the fourth paragraph will govern the implementation and inspection of what is carried out or should be carried out after they go into effect, independently of the date at which the concessions are granted, and their non-observance will be grounds for the cancellation thereof. No concessions or contracts will be granted with respect to radioactive minerals. The Federal Government has the power to establish national reserves and to abolish them. The corresponding declarations will be made by the Executive Branch in those cases and conditions prescribed by law. With respect to petroleum, and solid, liquid, or gaseous hydrocarbons or radioactive materials no concessions or contracts will be granted issued nor may those that have been granted continue, and the Nation shall carry out the exploitation of these products, in accordance with the provisions indicated in and the respective regulatory law will determine the way in which the Nation will carry out the exploitation of these products. It is exclusively a function of the Nation to generate, conduct, transform, distribute, and store electrical energy for to control the national electricity system, as well as the public use of electrical transmission and distribution; In this field in these fields no concessions will be granted to individuals and the nation shall make use of the goods and natural resources required to serve such purposes, although the State may enter into contracts with private persons in the terms established by law, which will determine the manner in which those private persons can participate in other activities in the electric power industry. 

Article 28.

State activities performed within the following strategic areas will not be considered monopolies: mail service, telegraphs and radiotelegraphy; radioactive minerals and nuclear energy production; and the activities expressly stated in the laws passed by the Congress of the Union. According to the terms of article 25 of this Constitution, satellite communications and railways are priority areas for national development; the State, by exercising its control over them, shall protect the security and sovereignty of the Nation, and by granting concessions or permits shall maintain or establish control over the communication and transportation networks in accordance with the laws on the subject. In the case of electricity, oil and other hydrocarbons, the provisions of the sixth paragraph of article 27 of this Constitution shall apply.

PROVISIONAL

Sole. The current Decree will enter into effect the day following its publication in the Official Gazette of the Federation. 

Decree Initiative for the Reformation of Articles 27 and 28 of the Constitution of the United Mexican States.

In Mexico City, Federal District, on August 12, 2013

THE PRESIDENT OF THE UNITED MEXICAN STATES

ENRIQUE PEÑA NIETO

Failure modes of the United States, part 6?

From Carlos Yu, the five failure modes are:

1. There might be too many “veto points” in the Federal system to resolve new problems of government in a timely manner (discussed here, here, here, here, and here);
2. The military might not accept civilian authority;
3. The monetary and regulatory agencies might be too slow or too unwieldy to deal with unexpected changes in the global economic system (this failure mode actually occured in 1929-32, to catastrophic result);
4. The U.S. population might become apathetic and gullible to the point of civic dysfunction;
5. Enough states go dingo that the Federal system can’t deal.

Is there a sixth? Perhaps: the party system becomes dysfunctional.

In the U.S. House, the majority party has total control. It can effectively ignore the minority. With enough internal discipline, therefore, it takes only a majority of the majority to run the place.

Nothing strange in that: most parliamentary democracies run that way, certainly under the Westminster system.

But in the U.S., you have two additional wrinkles. First, gerrymandering means that the GOP controls the House despite losing the Congressional elections by 1.4 million votes, a margin of 1.1%. This result was driven by some ridiculous maps in a few states: in Pennsylvania the GOP got 72% of the seats with 49% of the two-party vote; in North Carolina they got 69% of the seats also with 49% of the two-party vote.

Nonetheless, this is still not a failure mode. It is just tough politics.

The second problem is worse, though. How does the GOP maintain a parliamentary level of unity? It is not because of strong centralized leadership! No, it is because the primary elections attract very small turnout, which on the Republican side (but oddly-enough, not the Democratic, for reasons I do not understand) tend to be very highly ideologically motivated. Thus, you get discipline for fear of getting primaried by someone to your right.

Still not a problem ... except those even-more-right-wing candidates do not face a competitive electoral environment at the House level. At the Senate level they do: thus the spate of statewide Tea Party losses in 2010. (Or on the other side, Joe Lieberman’s primary loss in 2006, where he came back to beat the new Democratic nominee in the general.)

So you get a small, increasingly safe, radical wing with an effective veto over the House of Representatives. End result? Government shutdown, as that wing demands the rather unprecedented strategy of holding hostages in order to get through its legislative priorities. Or worse yet, a default caused by hitting the debt ceiling.

Solutions? Well, there are a few as far as the government shutdown is concerned. GOP moderates (like Charlie Dent or Peter King) could cut a deal with Democrats to keep Boehner as Speaker even after he allowed the government to reopen or abolished the debt ceiling. Or they could bolt to sign a discharge petition to bring a continuing resolution or debt ceiling bill to the floor. Boehner could decide that he is a useful lightning rod for conservative ire. Or nothing happens for a couple of weeks and the GOP winds up in trouble in 2014. (The last link is very good, I think, at explaining the GOP strategy.)

But the debt ceiling is not like that. Mess that up, and you have catastrophe.

The President will soon have two illegal choices. He can run with random defaults on bondholders and other creditors. (After all, I work for you for two weeks and then get a paycheck, well, to all extents and purposes I am your creditor.) Or he can say screw the debt ceiling law, organize a Treasury auction, and procede apace.

His third choice is to cave to GOP demands, of course, while somehow forcing the Senate to go along. But that is a failure mode: it would effectively repeal Article 1, Section 7, of the Constitution because of a stupid law held over from the First World War.

Since both are illegal, he may well go with the second option. It will lead him to be impeached, but the Senate will ignore it.

And by forcing the President to choose between two illegal options, it will further transfer power to the executive branch. Carlos Yu: “While Obama will probably be circumspect about how much, it’s another precedent.”

Anyway, I think we will make it through this madness unscathed. Presumably the House will assert itself against the radical part of the GOP caucus. Hopefully the GOP will then pay a price in 2014, despite gerrymandering. Possibly we will reform the primary system to make things saner.

Or perhaps we will not. The party system will remain dysfunctional. Either the President will gain another power or we will continue to have government by confrontation until the GOP loses the House. Enough such precedents, and you have a failure mode.No?

POSTSCRIPT: After writing the above, I came across this piece by Stan Collender. It very cogently lays out the problem with the House GOP. Worth reading.

Excellent move, Mr. President! While we are here, let’s imitate France in more ways than attacking Syria

Seriously seriously excellent. And here I thought a Congressional vote was off the table.

Now, I would prefer that we would simply declare war on Syria rather than “authorize military force” or whatever. For reasons that I find surprisingly hard to articulate, it bothers me that the word “war” has come to mean for politicians “total war, fought for the absolute annihilation of the enemy by any means necessary” ... whereas for ordinary people it continues to mean simply “a state of armed conflict between different nations or states or different groups within a nation or state.”

A declaration of war on Syria should mean simply that we intend to use force to try to kill Syrian soldiers. It should not mean that we intend to overthrow the Syrian government or wipe the Syrian state from the map.

But I am just being cranky. All five of the United States’ declared wars involved either an attempt to annex territory or force an unconditional surrender. So the word has had an extreme connotation for a while.

The thing is, several of our undeclared wars also effectively involved a demand for unconditional surrender: the interwar interventions on Hispaniola, Korea after U.N. forces crossed the 49th parallel, Grenada in effect, Panama without a doubt, Afghanistan even if nobody says so and certainly the Second Gulf War.

So we are not consistent either way. Unless there is some legal reason of which I am unaware (is there?) the old crankster in me would like to bring back the pre-1812 terminology.

Get those google glasses off your face before I knock ‘em off and STAY OFF MY LAWN!

But kudos to President Obama! Even he asks only for an authorization to use force, kudos. I still think a very limited war with Syria is a bad idea even if Congress says yes, but it is nice to know that we will have a full and open debate under the original terms of our Constitution before we go ahead with only our French ally.

President Hollande, by the way, has the explicit power under Article 35 of the French constitution to send French military forces into combat for up to four months without requiring Parliamentary approval. So his decision to send forces against Syria without legislative authorization is fully and completely constitutional. That said, French forces have ranged all over the planet since 1958 whereas all the sentences in Article 35 after the first one were added only in 2008. (See pages 44-45.) 

Still, credit to France for realizing that the theory of their constitution did not meet the practice and changing the constitution to bring them in line. To be brutally frank, all Americans who think that the president should have the power to commit military forces to action outside our sovereign territory should really push to have us do the same.

The above, by the way, is across the street from the French Musée de l’Armée, which my wife introduced me to and is completely awesome and not to be missed.

Observatorio argentino 21: The Supreme Court keeps Argentina from importing a strange American idea

The United States has given a lot of good ideas to the world. We have also given a lot of bad ideas to the world. One of those good ideas is judicial review. One of those bad ideas is the Senate.

Argentina has both judicial review and a senate.

By a 6-1 vote, the Argentine Supreme Court just stopped President Fernández from adopting another one of our ideas: elected judges.

To be fair, she wanted indirect election: judges would still have been appointed but the body that selected them would be elected. Under Article 99 of the Argentine constitution, the President selects federal judges from a list presented by the “Council of the Magistracy.” According to the (not very good but) official English translation of the Argentine constitution, the Council is selected as follows:

The Council shall be periodically constituted so as to achieve the balance among the representation of the political bodies arising from popular election, of the judges of all instances, and of the lawyers with federal registration. It shall likewise be composed of such other scholars and scientists as indicated by law in number and form.

Meaning: Congress can write laws to choose the Magistracy Council however it likes, but it has to make sure that the resulting body represents all political parties, sitting judges, and the federal bar association.

Election for the Magistracy Council, held the Supreme Court, would not insure that all those groups would be represented. It would also, they held, violate the separation of powers and threaten judicial independence.

This has some resemblance to how New York State picks judges for the Court of Appeals. New York is not alone: you can find data on how U.S. states choose judges here; a summary can be found here. Of the 39 states with intermediate appellate courts, 21 do not hold elections. Of all 50 states, only 11 have no judicial elections; an additional seven have uncontested elections when judges are reappointed. The rest hold elections. Some even hold partisan elections.

It is pretty clear that the reason for the President’s desire to elect the Magistracy Council is that she is sick of court decisions going against her. The recent decisions against Chevron (which put the expansion of oil production in the Vaca Muerta at risk) doubtlessly play a part. She seems to be calculating that her political machine can win the resulting elections.

But are elected judges really a bad idea? Good political scientists have made the argument that judges make political decisions using unclear criteria anyway, and so we should elect them.

On balance, I think that the decision is a good one for Argentina. Argentina enjoys an independent judiciary. That is not only a recent accomplishment; it is something for which we can credit President Fernández’s husband, former president Néstor Kirchner. Elections would seem to weaken that accomplishment.

But the political scientists (arguing in the American context) make good arguments.

Should I change my mind?

Charter cities are back!

It seems as though the Honduran charter cities project is back on. Congress just passed enabling legislation to establish “Zonas de Empleo y Desarrollo Económico (ZEDE).”

The previous project collapsed in two stages. First, the foreign members of the Transparency Commission that was supposed to oversee the charter city pulled out. Then the Supreme Court declared the whole thing unconstitutional.

The project also returned in two stages. First, in January 2013, by a vote of 110 to 13, Congress changed the constitution. The text of the new amendments can be found here. (An easier-to-read version can be found here.) Congress changed three articles, but only two had to do with charter cities.

Article 294 got a new sentence aimed right at the Supreme Court: “Notwithstanding the text of the preceeding two paragraphs, the National Congress may create zones subject to special regimes under Article 329 of this Constitution.”

The amendments then watered down Article 329, which gave Congress the right to establish the charter cities. This blog discussed the first version of Article 329 here, in detail. I am annoyed to say appears not to have been linked to by any of the usual suspects. They appear to prefer to operate in an atmosphere of hope and dreams.

Gone is the stuff about treaties and outsourcing executive functions to foreign countries and special trade laws and all. Instead, among the verbiage, you have these four key sentences:

The State may establish zones subject to special regimes which will have judicial personality, be subject to a special fiscal regime, have the power to take on obligations that will not require a guarantee or signature from the State, sign contracts until its goals are achieved over time and across administrations,and enjoy functional and administrative autonomy including the functions, facilities, and obligations that the Constitution and laws confer on municipalities.

The authorities of the zones subject to special regimes have the obligation to adopt national and international best practices.

The law can establish obligatory binding arbitration to resolve conflicts between nature and juridical persons resident inside the areas covered by these regimes.

Courts in zones subject to a special regime may adopt judicial systems and traditions from other parts of the world.

Today they passed the enabling legislation by a vote of 102 to 26. I have not yet been able to find a copy of the new law. (Help is always welcome.) Press reports are a bit vague. Here is Proceso:

The ZEDE will have its own juridical personality and may be created with the goal of creating international financial centers, international logistical centers, autonomous cities, international commercial courts, special investment districts, renewable energy districts, special economic zones, and zones subject to a special judicial system. They also may be special agroindustrial zones, special tourist zones, social mining zones, social forest zones or whatever other unspecified special regime that includes a combination of some of these other regimes.

That really does not say very much.

The special fiscal regime authorizes the ZEDE the right to create its own budget, to impose and collect its own taxes, to determine the fees charged for its services, to sign all types of contracts and agreements until its goals are accomplished, including across various administrations.

That was a little more specific.

The ZEDEs fall under special jurisdiction and shall have their own autonomous and independent courts with exclusive competence in all cases not subject to obligatory arbitration. The courts will be created by the judiciary through the Judicial Council under the supervision of the Technical Secretary and will operate under English common law.

In addition, the internal regulations of the ZEDE will establish that they are extraterritorial tax and tariff zones, distinct from the rest of the national territory.

OK, then.

If the above report is right, then the ZEDEs are little more than a low-tax free-trade-zone with their own special court system. Kind of like Delaware.

I kid. Delaware is inside the American customs area.

I am skeptical of the standard charter city idea. This is a very watered-down version. So ... good luck with that, Honduras. For the rest of you, don’t get too excited.

How Congress works ... in Colombia-with-an-“o”

In comments, Tzintzuntzan asks about the procedural rules in the Colombian congress. What are the rules by which the legislature makes the rules? Who controls them?

This is something often overlooked when Americans examine foreign countries. It’s an odd oversight, since procedural rules define American politics more than most places. In the Senate, the need to get 60% to pass anything is a procedural rule. In the House, the Speaker’s near dictatorial control over what bills get to the floor is a procedural rule. And don’t get me started on the baroque rules governing the conference committees that reconcile bills passed by both houses. In short, American politics is entirely incomprehensible if you don’t understand the procedural rules.

The same applies (albeit generally to a lesser extent) to other countries. If you don’t understand the rules by which the legislature makes the rules, then you can’t understand their politics.

Fortunately, Royce Carroll (Rice) and Mónica Pachón (Uniandes) have studied the issue for Colombia. Who controls the legislative agenda? Where are the vetoes?

The U.S. president, as Barack Obama knows all too well, cannot introduce legislation directly. Now, it is usually easy for a President to get a sympathetic legislator to introduce a bill, but he or she cannot force Congress to vote on it. Speaker Boehner or a coalition of forty Senators can kill anything before it even comes up for a vote.

Not so in Colombia! Here, the President can directly introduce legislation. Article 200 of the constitution (English here, Spanish here, and note that in context “gobierno” is used in the British sense and ought to be translated in American English as “administration”) lays out the authority:

1. Help draft the laws, present bills through ministers, exercise the right of objecting to them, and approve them in accordance with the Constitution.
2. Convoke the Congress to special sessions.
3. Present the national development and public investment plan, in accordance with the provisions in Article 150.
4. Send the budget bill of revenues and expenditures to the Chamber of Representatives.

This article has been interpreted very broadly.

In addition, the President can force votes on his or her bills within 30 days. In fact, they can force a vote within 15 days by invoking a joint session of Congress. Better yet, they can skip committees and insure that the House and Senate debate the same initial version of the bill.

But there is a snag. Bills can be amended on the floor. So the President needs to pay close attention to the legislative process in both chambers. If the House and Senate amend bills differently, then a conference committee will determine its final shape ... and the President of the Republic has no direct authority over the committee.

So who does? The answer: each chamber’s three-person Board of Directors. They are elected to one-year terms, by secret ballot. Each Board consists of one president and two vice-presidents, with (by tradition) the president coming from the majority coalition and the veeps from the largest minority parties. These guys serve pick the conference committee, and these are the guys that the President needs on board to get his or her bills through the Congress. In fact, they pick all committees, so getting any bills through Congress requires their assent.

The board presidents are, to get back to Tzin’s question, the equivalent of the U.S. Speaker. The one-year limit, however, insures that the Colombian congress produces no Willie Browns. Me, I think that is a bad thing, but mileage may vary.

What is the upshot? First, presidents in Colombia have a good-but-not-perfect legislative track record. (See page 17.) President Pastrana got 85% of his major bills passed. President Uribe got 79% passed in his first term, and 57% in his second. Presidential bills generally, however, take a lot longer than 30 days to pass: the average is actually 224.

Congress, however, maintains a lot of influence over the process. Carroll and Pachón calculated the proportion of characters that changed between the first version of a bill and the last. For presidential initiatives, 54% of the bill (among passed laws) changed throughout the process. For legislative initiatives, however, the proportion was only 26%. (See page 20.)

The unanswered question, however, is why presidential bills change more than Congressional ones. There are three hypotheses.

Hypothesis 1: The conference committees run the show. They change presidential bills more than ones introduced by their fellow congresspeople.

Hypothesis 1 is probably wrong, or at least incomplete. If it were correct, the changes to presidential bills should mostly happen in the conference committee. Conference committees, however, change only 14% of presidential bills. Most changes occur on the floor.

Hypothesis 2: The only kinds of congressional bills that can pass are uncontroversial motherhood issues.

Hypothesis 2 is also probably wrong. It is true that congressional bills usually fail: none passed under Pastrana and only 36% in Uribe’s first term. But congresspeople introduced such significant (and successful) pieces of legislation as the Violence Against Women Act, the Congressional Ethics Act, and a law allowing the confiscation of property from convicted criminals.

Hypothesis 3: The Board of Directors exercise control early on over congressional bills, but though means other than the conference committee. (Of course, the threat of an unfriendly conference committee might lead the executive to roll over on amendments earlier in the process.)

This one seems to fit the facts. The Board of Directors (in Spanish, the “mesa directiva”) are very powerful. Their power is limited, however, by the fact that they serve only one-year terms.

The upshot is that the President of Colombia can work even with the kinds of fragmented Congresses produced by Colombian electoral law as long as he can get a friendly Board of Directors. He can even work with the Senate. Barack Obama should be so lucky.

Tzin, does this answer your question?

But this is not to say that all is well with Colombian politics. More on that if there is interest.

Senates: Colombia

Finally, I will have a good thing to say about a senate!

This blog is on record trashing the senates of America, Argentina, Bolivia, Brazil, Canada, and the Philippines. It has been slightly kinder to the one of Mexico, but only slightly. So, finally, here is a senate that I can support.

Under the Constitution of 1991, Colombia has two houses. The House of Representatives is elected by district. Each department gets two representatives, plus an additional one for every 250,000 people. The representatives, however, are not elected from geographic districts. Rather, they are elected by proportional representation at the level of the department. For example, Bogotá divvies up its 18 representatives according to the percentage of the vote taken by each party in Bogotá. La Guajira, then, does the same thing with its two representatives. (The geographic division of the 164 representatives can be found here.)

The 100 members of the Senate (actually 102, since two Senators represent indigenous communities) are also elected by proportional representation, but according to their percentage of the national vote. Voters vote separately for the two chambers.

Now there may be problems. First, proportional representation might not be the best way to organize a legislature under a presidential system — but given the train-wreck that is the American legislature, I would hesitate to make big claims about that. Moreover, Colombia is a country where it is vital that small political minorities receive direct representation.

Second, the actual system of proportional representation used is one of the worst (see page 6 here) advantaging small parties. Basically, they divide the number of votes cast by the number of seats. That becomes the magic number. Every party that gets above that number gets a seat. If it gets more than twice the magic number it gets two. More than three times the magic number, then it gets three. Any fractions over the magic number are thrown away. Then the smaller parties get any remaining seats in order of their vote tallies. Bigger parties get slightly fewer seats than they should and some tiny parties can sneak in. This is a problem for the smaller House districts, but does not really apply to the Senate, since the magic number there is a relatively small 1% of the total vote.

Finally, the benefit of a two-house legislature is unclear. There is a case that checks-and-balances are good, but multiple veto points can also empower minorities.

None of these three objections strike me as compelling.

Colombian politics has a lot of problems, of course. (Is there interest in the recent politics of Bogotá?) And in a perfect world I would not pick the Colombian system for the United States. (Although I would take it over our own crazier system in a heartbeat!) But similar to the way Mexico has made its Senate more functional by using proportional representation to dilute its undemocratic features, Colombia has made its Senate more functional by using proportional representation to make it more democratic.

But I will say that the problems of Colombian politics owe little to the constitutional design of the Senate. (These political scientists agree: their reforms mostly involve changes to electoral law, not constitutional design.) Moreover, in some ways the Senate is better designed than the House. So, finally, an upper house in the Americas that I can support.

At least sort of. The idea that legislators can vote by secret ballot strikes me as nuts. But that problem applies to both Colombian chambers, not just the Senate.

I am a very new observer of Colombian politics. Thoughts?

Finally, the world notices that no Senate is good Senate

This blog has panned the the Canadian senate, along with the Argentine, Brazilian, and Philippine ones. And we have not spared the American one, either! We blasted the American senate not only because of it has godawful stupid internal rules but because it is fundamentally undemocratic. In fact, we went so far as to calculate what the U.S. Senate would look like if you retained the 100-person membership but allocated Senators the way we did Representatives. Short result: California gets 10 senators. New York and Texas get six. Florida gets five. Ohio, Pennsylvania and Illinois get four, and you can click the link for the rest.

Given that, it is nice to see the New York Times finally catching up! Read the article. The Senate is fundamentally undemocratic and perverts our politics. Abolishing or reforming it is long overdue.

Unfortunately, the Senate is the one thing that the Constitution of the United States says cannot ever be reformed. It’s right there in Article 5: “[Amendments become part of the Constitution after ratification by ¾ths of the state legislatures or special state conventions] provided ... that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

Oh well.

Political parties in Bahrain

 Bahrain is a near-absolute monarchy founded by, in the words of one of our co-bloggers, “pirates that admired Maria Theresa’s bust on thalers.” In 1971, the British withdrew their protection, and the monarchy chose not to join the UAE. In 1973, it got a constitution creating an elected parliament. In 1975, that constitution was suspended. In 2002, as part of a reconciliation that included a 2001 amnesty for political exiles, a new constitution revived the 40-member elected lower house of parliament. Its powers are limited, however: the upper house is appointed, and the Prime Minister serves at the pleasure of King Hamad, not the Parliament. Prime Minister Khalifa bin Sulman Al Khalifa is the nephew of King Hamad, and has been in office since 1971.

Elections are run by district with a runoff between the top two candidates if nobody wins an outright majority. Political parties remain, strictly speaking, illegal, but the Political Societies Act of 2005 allows for the formation of registered “political societies” which function for all intents and purposes as political parties. The distribution of seats after the 2006 elections was as follows: Wifaq (17 seats), Asala (8), Minbar Al Islami (7), and Mustaqbal (4). New elections were held on October 2010. The results were Wifaq (18 seats), Asala (3), Minbar Al Islami (2), and 17 all-Sunni independents.

Courtesy of Wikileaks, we know what the U.S. embassy thinks of the political organizations currently active in Bahraini politics. Since Bahrain is both a country that I like and made the front page of the New York Times today, what follows is a condesation of “The Field Guide to Bahraini Political Parties.”

Wifaq: the leading Shia party. The leadership consists mostly of people exiled during the unrest of the 1990s, who returned after a 2001 amnesty. The party’s nominal leader is Ali Salman, a mid-level cleric, but the real leader is the country’s most popular Shia cleric, Isa Qassim. Wifaq demands a Westminster-style constitutional monarchy. The party also attempts to combat anti-Shia discrimination, both through legislation and street demonstrations.

Asala: the State Department calls Al-Asala the “Salafist” party. The party itself, however, “says its goals are to increase the standard of living for Bahrainis; strengthen political, social and economic stability; and enhance financial and administrative oversight of the government and industry.” It is, however, adamantly opposed to women’s rights, which are rather advanced in the Kingdom. The State Department had this to say about the party’s leader: “Ghanim Albuanain strikes emboffs [sic] as rational and open-minded, though many of his followers are not.” Most Bahrainis, reports the Department, believe that the monarchy supports the party against Wifaq.

Minbar: the local branch of the Muslim Brotherhood. “Minbar seeks a personal status law that conforms to Sharia and is acceptable to both sects” and “does not allow its female members to stand for election.” As with Asala, it is widely rumored that the monarchy and the Islamic banking sector provide finance. In 2006, it was caught in a vote-buying scandal, although no one was prosecured. (The whistle-blower was a British fellow named Salah Al Bandar, who had been serving as an advisor to the Bahraini government. He was sent home forthwith.)

Mustaqbal: the State Department had only this to say: “The bloc bills itself as the only secular grouping in parliament, though all four members are Sunni. It votes reliably for the government and its leader, Adel Al Asoomi, is close to the Prime Minister.”

There are a few other parties without seats. Wa’ad is a socialist party formed by returning exiles in 2002. It is a strong proponent of women’s rights as is generally moderate, with support from both Sunni and Shia, although its leader, Ebrahim Sharif, courted a bit of an international scandal in July 2008 when he said nice things about Hezbollah. The Al Minbar Progressive Democratic Society (APDS) is the former Communist Party. It won 3 seats in Parliament in 2002, but lost them to Wifaq in 2006. A bigger blow came in 2008, when it lost control of the General Federation of Trade Unions to Wifaq. Al Meethaq won 5 seats in 2002, but lost them to Wifaq and Minbar in 2006.

The Adala National Justice Movement is loud, but not to be taken seriously. “The society initially focused its criticism on the U.K. and Iran, but now devotes all its energy to exposing the horrors of U.S. imperialism. Abdulla Hashim has a real talent for attracting local and international media coverage for his stunts, such as an April 26, 2008, demonstration near the U.S. Navy base here that featured the beheading of a mannequin dressed to represent a U.S. Marine. Despite their media profile, however, Adala has never produced more than 80 people at one of its demonstrations.” Hashim was beaten by a Minbar candidate in the 2006 election.

Finally, there is Haq. Hasan Mushaima, a founder of Wifaq, left to found Haq in November 2005. From the start, Haq has defied the requirements for registration of political societies. Haq opposes the 2002 constitution on the grounds that it rescinded liberties granted by the 1973 constitution. Moreover, the King drafted it unilaterally and (unlike the 1973 constitution) it provides for an appointed upper house of parliament. Haq’s top public goal is a new constitution for Bahrain drafted by elected delegates.

The rest I’ll leave in State’s own words. “Since Haq competes with Wifaq for the same Shi a supporters, Haq gains support whenever Wifaq is perceived as unsuccessful in parliament. When Wifaq is successful, Haq loses popularity. Post [sic] and the public perceive Haq as inspiring many of the small gangs of Shia youth who throw stones and Molotov cocktails at police almost every weekend. Haq has submitted petitions to the U.N., the USG, and the GOB calling for the Prime Minister’s resignation and condemning the GOB’s human rights record. Abduljalil Al Singace, Haq’s public affairs and media specialist, has contacts with U.S.-based and international NGOs and media outlets. GOB officials often assert that the Iranian regime controls Haq supporters, however has yet to provide post with convincing evidence.”

Do you want to know more? One day, Luke will tell you!

Bad representation, proportional representation, and military persecution in the Philippines

 The Congress of the Philippines, like the American one, is divided into two houses. The upper house, like the American one, is elected in a crazy way. It’s a different form of crazy, though. Every three years, half the 24-person Senate is elected at-large, with all the problems that entails. At least now there’s a ballot, instead of having people write in their favorite candidates.

The lower house is elected by a combination of first-past-the-post and proportional representation. The districts are pretty straightforward, although their populations can vary wildly between 1,559,641 people in the 2nd district of Quezon City, with a few as small as 50,000. Why the disparity? First, the constitution mandates that each province receives at least one district. Second, there hasn’t been any redistricting (other than the creation of new provinces) since 1987. The reason for the latter is left as an exercise for the reader.

Dakilang Isagani, Mapa na nagpapakita ng populasyon ng mga distritong pangkonggreso, ayon sa resulta ng bilangang isinagawa noong Agosto 1, 2007 at inilathala noong Abril 2008, Wikimedia Commons.

Voters get to cast a second ballot for a political party. The parties will divvy up 20% of the House seats, with two caveats: to get a seat, a party needs to get at least 2% of the national vote, and no party can receive more than three seats. In the 2010 election, there will be 219 districts and 54 party-list seats. The party-lists are decided by such narrow margins that they don’t release the results until all the precinct votes are in.

 
The above is an Armed Forces flyer reading, “Don’t vote for the NPA party-lists,” followed by a list of organizations, including one we talked to earlier. One thing that came out of our interviews is that the military seems to target party-list candidates, who are more progressive on average. I wonder if this is a tragic real-world test of the hypotheses (made by many people, but here is a paper by Iversen and Soskice) that proportional representation is better for pro-redistribution candidates. After all, why else would repression be targeted against the candidates that win the PR seats?

The Commonwealth Realms of the Caribbean and the end of the British Empire

 This post has been substantially expanded. It was about nothing; now it’s about the slow withering of the British Empire, Margaret Thatcher notwithstanding.

Trinidad and Tobago was the first member of the Commonwealth Caribbean to become a republic, in 1976. After the Black Power disturbances of 1970, the government set up the Wooding Commission to review the clauses of the 1962 constitution. All sides of the political spectrum supported constitutional revision: some thought that its conservatism contributed to the instability; others worried in the aftermath of the Williams government’s powerful response to the riots that the pure Westminster system didn’t provide enough checks on the Prime Minister’s power. One solution to that problem was to strengthen the position of Governor-General ... but that caused a problem, since the Governor-General served officially as the Queen’s representative, and “among young people in particular the British Sovereign has no symbolic meaning.” The report did state some advantages of the monarchy — namely, a head of state “above the clash of race and class and ideology which makes up politics” — but they rejected them as inappropriate in the context of a head-of-state with actual executive authority, no matter how weak.* Williams did not accept all the recommendations of the Wooding Commission, but Trinidad got a new constitution ... and an elected President replaced the Queen as head-of-state.

Dominica followed Trinidad into republican status in 1978. One would have expected Grenada to follow.

In 1979, the New Jewel Movement shot its way into office. That came a surprise to nobody: the man who had ruled Grenada for the previous 12 years, Eric Gairy, was little more than a slightly more colorful version of Fulgencio Batista. His opposition knew this; they went so far as to unsuccessfully try to annex the island to Trinidad in order to prevent him from coming to power. (Unfortunately, Indo-Trinidadians were not particularly keen on bringing more African voters into the polity, so the idea failed.) After 12 years of increasingly corrupt Gairyismo (including a bizarre attempt to steal a Miss World competition) nobody was surprised when a small group of Marxist revolutionaries overthrew what was left of his government while Gairy was out of the country.

The rebels proceeded to issue a number of “people’s orders.” They mostly read like something out of an old Monty Python skit. People’s Order Number 1 declared, “The People’s Revolutionary Government now formerly enacts the Constitution of Grenada as hereby, has been suspended.” People’s Order Number 2 said that the People’s Revolutionary Government “shall be vested of executive and legislative power and the People’s Revolutionary Government shall appoint a Prime Minister.” People’s Order Number 4 went on to end all appeals to West Indian or British courts, People’s Order Number 7 established the People’s Revolutionary Army, People’s Order Number 8 created “preventative detention,” and People’s Order Number 10 reiterated the fact that the PRG was, in fact, issuing people’s orders: “For the time being, all People’s Laws shall become effective upon oral declaration and/or on publication of Radio Free Grenada by the Prime Minister or in the official Gazette under the hand of the Prime Minister.”

The weird thing was People’s Order Number 3. “The Head of State shall remain Her Majesty The Queen, and her representative in this country shall continue to be the Governor General who shall perform such functions as the People’s Revolutionary Government may from time to time advise.”

This became a problem when the U.S. was groping around for a legal rationale to intervene. They found a Governor-General, Paul Scoon, ready and waiting to provide them with one. In one of the stranger episodes in the long slow replacement of Britain’s empire with America’s not-empire, the British high commissioner to Grenada carried messages to the Governor-General on behalf of the United States and OECS, without London’s knowledge.

David Montgomery met Scoon on the Sunday before the invasion and asked him, “Would you welcome intervention?” Scoon replied that he saw it as the only thing that could prevent a civil war. He then agreed to issue an oral request for intervention, followed by a written order as soon as it was safe. A written letter to the Prime Minister of Barbados followed on Monday, October 24, 1983.

You are aware that there is a vacuum of authority in Grenada following the killing of the Prime Minister ... I am requesting your help to assist me in stabilizing this grave and dangerous situation. It is my desire that a peacekeeping force should be established in Grenada to facilitate a rapid return to peace and tranquility and also a return to democratic rule. In this connexion I am also seeking assistance from the United States, from Jamaica, and from the OECS through its current chairman the honorable Eugenia Charles (Prime Minister of Dominica) in the spirit of the treaty establishing that organization to which my country is a signatory.**

The Marines’ helicopter assault began at 5:00am on Tuesday.

The story gets stranger when you take into account Margaret Thatcher’s uncharacteristic reaction:

If you are pronouncing a new law that wherever Communism reigns against the will of the people, even though it's happened internally, there the United States shall enter, then we are going to have some really terrible wars in the world.

Who knew?

Why would a self-proclaimed socialist government, willing to ally itself with the Soviet Bloc, keep the Queen as its head of state? Especially when two nearby Commonwealth states had shown themselves completely willing to chuck her out? My guess would be that attachment to the monarchy must run very deep in the smaller islands. But that deep? Or perhaps they only played out two steps along the game tree. They knew that Britain almost certainly would not intervene under any circumstances, but it never occurred to them that the United States could as easily take advantage of the fact that the personal representative of Grenada’s head-of-state was not an appointee of the People’s Revolutionary Government.

Maybe so. I honestly do not know. The evidence is confusing. What is the role of the monarchy in the Commonwealth Caribbean? What should be its role? Does it persist out of popular sentiment, or simple inertia? 

Failure modes of the United States, part 1a, a counterfactual

  Gah.  Still can’t sleep, but my concentration keeps coming in-and-out.  Here goes a short post on a random topic.

The story of how the Supreme Court tried to hold up much of the New Deal is well known.  Roosevelt tried to appoint six new justices, which thankfully failed, and the Supreme Court reversed itself.  In an earlier post, I argued that it would have made little difference had the Court stuck to its initial rulings.  All that would have happened would have been a constitutional amendment reading something like the following:

Congress shall have the power to legislate in all cases for the general interests of the union, and also in those in which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.

A less poetic version listed an economic laundry list (wages, health and safety, etcetera) and then said:

The due process of law clauses of the fifth and fourteenth amendment shall be construed to impose no limitations upon legislation by Congress or the several states with respect to any of the subjects referred to in Section 1, except as to the methods or the procedure for the enforcement of such legislation.

Such amendments would have changed pretty much nothing.  The Gun-Free School Zones Act of 1990 would have been upheld, and that’s about it.  So not a very big change.

That said, there was another very different amendment in play at the same time, proposed by Senators Burton Wheeler (D-Montana) and Homer Bone (D-Washington).  It had a lot of support, and since Wheeler was one of the biggest opponents of FDR’s court-packing plans, it was probably the most likely amendment to pass.  (Or so I take away from Bruce Ackerman’s book.)  It read:

In case the Supreme Court renders any judgment holding any act of Congress or any provision of any such act unconstitutional, the question with respect to the constitutionality of such act or provision shall be promptly submitted to the Congress for its action at the earliest practical date that Congress is in session, but no action shall be taken by the Congress upon such question until an election shall have been held at which members of the House of Representatives are regularly by law to be chosen.  If such act or provision is re-enacted by two-thirds of each House of the Congress to which such members are elected at such election, such act or provision shall be deemed to be constitutional and effective from the date of such re-enactment.

That is a bit like Canada’s “notwithstanding” clause.  Congress would have been able to override the Supreme Court with a two-thirds vote.  Unlike Canada’s clause, which requires a notwithstanding declaration to be re-authorized every five years, a Congressional override would have been permanent.  It also would have required a Congressional re-vote, rather than merely authorizing one.  On the other-hand, two-thirds is a rather high bar to jump over. 

Unlike the more concrete economic amendments, which would have changed very little, it is not unreasonable to conclude that the Wheeler-Bone Amendment might have had very significant effects on American history.  The question is how significant, and in what direction.  Could a removal of a veto point create a failure mode?   

Failure modes of the United States, part 1a

  So how might the American system fail?  A few weeks ago, Slate ran a somewhat hyperbolic and rather uninformative series about the topic.  My friend Carlos Yu proposed five much more reasonable possibilities.  With classes about to begin, and not a lot of time to write more serious posts, I propose to take them in turn.  His first failure mode was:

There might be too many “veto points” in the Federal system to resolve new problems of government in a timely manner.

A “veto point” is simply a place in the political decision-making process where an individual or collective actor has the ability to call a halt.  In the political science literature that I engage with professionally, the phrase has a positive connotation.  Veto points stop expropriation and predation and civil liberties violation and the like.  But they can also stop needed reforms.  Many a ship of state has run aground because a powerful player prevented a change of course.

One veto point that it is not a problem in the United States is the judiciary.  This was not always true.  See Scott, Dred.  In the early 1930s, it once again looked like the judicial veto might cause a crisis, as the Supreme Court overturned on much of the New Deal.  This could have been a problem ... even if you don't like the New Deal (and parts of it, like the NIRA, were kind of silly), judicial stonewalling might have produced a far worse political backlash.

Only it didn't.  In fact, the judiciary turned out to be a bit of wet firecracker on the crisis-inducing front.  First, FDR tried to pack the court.  That was a bad idea, and died in Congress.  But the President had more ammunition in store:  several constitutional amendments to alter the meaning of the commerce clause were percolating in Congress.  One proposal would have given Congress the power “to legislate in all cases for the general interests of the union, and also in those in which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”  Others were less sweeping, but all made the point.  Either the Supreme Court changed its interpretation of the Constitution, or Congress would change the Constitution.

In the face of a credible constitution change, the Court reversed itself in 1937 and permitted most remaining New Deal legislation to sail through.  And if it had stood fast?  Well, we would have gotten a fairly innocuous constitutional amendment.  The Supreme Court didn't use the Commerce Clause to limit Congressional legislation until 1995, and even then it was over a small issue.    

Today the judiciary also exercises a veto power over egregious attempts to roll back civil liberties or use legislation to alter the social changes of the last 40 years.  Many have argued that in that veto has worsened political divisions, by taking abortion policy out of the political arena.  That may be true, but it is also true that almost all the social changes of the last half-century are quite popular, with the partial exception of affirmative action.  The judiciary, by exercising a veto, in fact allows the Republican Party (and, increasingly, pro-life Democrats) to attract socially conservative voters without any fear that they might suffer the national electoral consequences that would follow success in enacting truly socially conservative legislation.

In short, judicial veto points no longer stop constructive economic legislation, although they would be employed to stop Bolivarian-style expropriations.  The judiciary will not veto the federal construction of high speed trains, a national VAT, any conceivable health care bill, or carbon legislation.  Nor does the judiciary's regular overturning of social legislation create frustrations that will end in mass civil disobedience, let alone mass violence.  (Although small-scale violence tragically does occur.) 

Rather, the ironic result of the judiciary's defense of social change is to shore up social conservatism as a political force.  This is interesting, but unlikely to lead to the demise of the United States.  If one really believed in Jack Bauer, then one might argue that the judicial veto on things like torture and summary imprisonment could cause the demise of the nation, but I'm not going to bother with that one.

In short, if vetosclerosis is going to cause the failure of the American experiment, the judiciary is unlikely to be the source of the problem. 

Thoughts?

Cha cha con ass

  On my one trip to the Philippines, the nation suffered an attempted coup just as I deplaned.  In Mindanao, On another, Abu Sayyaf started chopping off heads right before I got to Mindanao.  And then there was this.  So the country should maybe be worried about the fact that I just returned. 

In fact, the papers just announced that the city would be shutting down for tomorrow’s “SONA,” or “State of the Nation Address” from President Arroyo.  Mass demonstrations have been called, and the military in Manila has been placed on “red alert.” 

Why the fuss?  Well, you can sum it up in four short syllables:  cha-cha con-ass.  “Cha-cha” stands for “charter change,” or constitutional reform.  The reform in question concerns Article 12, Section 7, which prohibits foreigners from owning land.   H.R. 1109 calls for convening Congress as a constitutional assembly in which 3/4ths of all members would be needed to pass an amendment.  In effect, this would neuter the Senate, since there are only 24 senators against 242 representatives. 

The fuss, however, is not really because foreigners might be permitted to own land.  Rather, the fuss is over the possibility that the Con-ass might vote to switch the Philippine government to a parliamentary system, which many see as a way for President Arroyo to remain in power as prime minister, instead of stepping down as the current constitution requires.   It hasn’t helped that the National Security Advisor, Norberto Gonzalez, breached the idea of a “transitional government” headed by the Chief Justice of the Supreme Court, during which a new constitution would be drafted in time for the May 2010 elections. 

So we will see what the President has to say tomorrow.  It seems as though I’ll get another day to work in my hotel room, which is not a bad thing.

The Philippine legislature, corrected

  I while back, I ran a post about upper legislative houses in the Americas, including the Philippines, and a later one on Bolivia.  It turns out that I got the history of the Philippine legislature wrong.

The Constitution of 1935 established a unicameral National Assembly.  The reason was not that the drafters wanted a unicameral legislature.  (Although I'll be damned to understand why they didn't want one.)  Rather, the drafters wanted an upper house, but couldn’t decide on how it should be apportioned.  Delegates from underpopulated provinces wanted equal representation for each province.  Progressives proposed a Senate elected by proportional representation.  Conservatives wanted to keep the existing 12 senate districts, each with equal representation.  Each proposal lost in a vote.  Unicameralism emerged by default.  (See here, p. 144.) 

In 1937, President Quezon started to raise the bicameralism issue.  Publicly, he claimed that he feared that a unicameral legislature could create an “oligarchy.”  Privately ... well, who knows?  Ricardo Jose of the University of the Philippines believes that Quezon worried that a unicameral legislature could more easily challenge presidential authority, especially if a political enemy controlled it. 

Whatever the reason, Quezon got the Assembly to approve the change to bicameralism on September 15th, 1939.  (The amendment also changed the presidential term from six years to four and allowed re-election.)  How was the new chamber to be elected?  Article 4, Section 2:  “The Senate shall be composed of 24 Senators who shall be chosen at large by the qualified electors of the Philippines, as may be provided by law.” 

In other words, every three years Filipinos picked twelve names off a list of Senate candidates.  The top twelve vote-getters became Senators.  Sort of like proportional representation, only not.  The amendment passed the required popular referendum on June 18th, and President Roosevelt approved them on December 2nd.

As so often, however, the devil is in the details.  The 1941 election introduced “block voting,” in which a voter could check a box next to the name of a party, thereby automatically giving each of that party’s candidates one vote.  Under that system, a party that could muster a plurality would sweep all the Senate seats.  Unsurprisingly, Quezon’s Nacionalista Party managed to pull off just such a feat. 

For reasons unknown, the Philippine senate is still selected by at-large elections.  Yet another inexplicable upper house, out of so many that America has given the world.

An Andrew Jackson moment

  “The decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”
                                                                        —President Andrew Jackson

 

The common misquote of the above is much sexier:  “John Marshall has made his decision; now let him enforce it!”  Which is not a bad summary of Manuel Zelaya’s throwdown when his country’s Supreme Court told him that he could not go ahead with his planned referendum on repealing term limits.  Zelaya’s “No one will stop Sunday’s vote!” is on a par with Jackson’s aphorism.

In fact, it is worth considering what was in Zelaya’s televised speech on Sunday, after the Honduran Supremes slapped him down.  “The Court of Justice, which makes justice only for the powerful, the bankers and the rich of this country, has declared illegal the people’s participation in a legitimate and constitutional poll ... What a shame for all Hondurans, this Court of Justice!  We’re in the presence of a technical coup d’état.  It’s a swipe at Honduran democracy.  I want to appeal to the commanders of the Armed Forces, the officers and the soldiers.  They are part of the people, they should not play this game of the media elite and economic oligarchy, of a deviant bourgeoisie.”

Why is this significant?  Because Honduras could have avoided this crisis with a better constitution.  The Honduran constitution had two major flaws.  First, it took re-election off the table forever.  I mean that quite literally.  Read: 

Article 5:  Voting in advisory plebiscites is mandatory.  Projects intended to reform Article 374 of this constitution will not be objects of referenda or plebiscites.

Article 373:  The National Congress can alter this Constitution in ordinary session with two-thirds of the votes of all members. 

Article 374:  In no case can be reformed the previous article, this article, the constitutional articles that refer to the form of government, the national territory, the presidential term, the prohibition that no citizen can again be president who has carried out the role under whatever title, and the one referring to those who cannot become president of the republic for the subsequent period.

It is a bad bad idea to declare any procedural part of a constitution to be forever inviolable.  The U.S. constitution does this in respect to the apportionment of the Senate, and that is a bad idea that may yet come back to haunt us. 

The Honduran constitution then added insult to injury with its second flaw:  a complete lack of procedures by which the courts, legislature, or popular opinion could remove a sitting president for breaking the law.  The closest is Articles 321-327, which lay out the responsibility of public servants and organisms that break the law and cause civil damages to individuals, or Article 233, which lays a pretty draconian anticorruption law.  But neither really apply in this situation. 

In short:  Zelaya broke a stupid constitutional clause.  Twice, in fact, first by firing an officer who refused to administer an unconstitutional referendum and second by proceeding with the referendum anyway.  Congress could not do anything.  At that point the increasingly-angry military, acting in concert with the Supreme Court, decided to extraconstitutionally remove the president from office. 

I do not like it.  But I am also not sure that this is an abrogation of democracy either.  Judging by their statements, the Obama Administration is equally torn:  they would like Zelaya back, but they aren’t going to wade into another country’s Andrew Jackson moment. 

What do you think?

P.S.  I am not a fan of Andrew Jackson.

Coup in Honduras, updated

  It seems as though the Honduran military just deposed President Manuel Zelaya.   That said, this is not a stereotypical South American coup:  Congress appears to have ratified the Army's action, and a civilian is taking control. 

In an unsurprisingly pointless move, Hugo Chávez put his military on alert.  (Or at least he says that he did; it would not surprise me to find that no official orders have been given.)  He went on to declare, “The people of Alba are in combat, because this does not end today.”  The leaders of the Alternative Bolivariana have condemned the “coup” and its leaders will hold a summit in Nicaragua today. 

But Alba's declaration is less political than it sounds.  Unasur, the OAS, and the United States have all condemned the ouster, although the U.S. is not calling for Zelaya to be reinstated.   

I don't know why the military moved before Congress did, or why the new leaders are going through this charade of pretending that Zelaya resigned before he actually resigned.  But I do know that Zelaya ignored a Supreme Court ruling on June 25th that ordered him to reinstate the general that he had fired because the general refused to use to the Army to organize an unofficial referendum on abolishing term limits.  (I met Zelaya's predecessor about a year ago;  he didn't have a lot of good to say about his successor.)   I'll add here that Article 374 of the Honduran constitution, stupidly, declares that the ban on re-election can not be reformed in any way, no how, forever and ever.  A dumb provision, however, is still a provision. 

For what it's worth, my guess is that the coup will stand.  There is enough of a fig leaf of legality about it to allow OAS governments to walk back their condemnation.  Now, escalating street protests could force the U.S. to pressure the Honduran congress into reversing its vote.  But if I had to bet right now, based on what I've heard from Tegucigalpa, Zelaya will remain out of power.

UPDATE:  The legality of the situation is shakier than the above implies.  Hell, it seems to be blatantly illegal, a good old-fashioned coup.  Why have I changed my mind?  Well, as far as I can figure, the Honduran constitution has no provision for the congressional removal of the president.  The closest provisions are as follows:

Article 205, Section 12:  [Congress has the power to] accept the constitutional oath of office of the elected President and Vice-president of the republic, and other appointees they select; grant them permissions and accept or reject thier resignations and fill vacancies in the case of the complete absence of one of them;

Article 205, Section 20:  [Congress has the power to] approve or disapprove the admistrative conduct of the executive branch;

Article 242:  In the case of a temporary absence of the the President of the Republic, the Vice-president will carry out the functions of the President.  Should the Presidency be permanently vacant, the Vice-president will exercise the powers of the executive branch for the remainder of the constitutional term.  Should the Vice-presidency also be vacant, the powers of the executive branch will be exercised by the president of the National Congress.

Thus, the need to declare that President Zelaya had “resigned” before giving the executive powers over to Roberto Micheletti.  (The office of Vice-president is currently vacant, so having the power pass to Micheletti is kosher ... it's the whole removing of Zelaya what appears to be illegal.)  Note that while Micheletti says that everything is constitutional, this article from the Honduran press cites no clauses or precedents. 

The whole thing looks much shakier upon skimming the text of the constitution in the light of day, or least what passes for it in this, the fourth straight week of rain in New England.  I'll go ahead and call it a “coup.”  It's chances of standing are less than I originally believed.

Non-conscription conscription in Chile

  In 1991, when I was last in Chile, the military was a thing apart.  Its rule over the country had only ended three years before.  The Constitution of 1980 reserved it a special role.  There was an organization called the National Security Council that consisted of the president, the heads of the Senate and Supreme Court, and the commanders of the four branches of the military.  The NSC could determine its own decision-making functions.  It selected four out of 36 senators, not including the seat reserved for Augusto Pinochet.  It picked two out of seven members of the Supreme Court.  The president couldn't remove military commanders without its approval.  If it saw “the menace of war,” it could order the central bank to extend credits to any person or group that it saw fit.  In addition, albeit not part of the constitution, a 1954 law granted the military 10 percent of Codelco’s copper revenues.  It was all very undemocratic, save for one thing:  the armed forces relied on conscription, and had since 1900.  The annual take, however, was never more than 20 percent.  In effect, it was fairly random and easily avoided, which undercut any chance that the military might become a citizen army.  

Most of that has now changed.  The NSC is now just an advisory board, and the non-elected senators are a thing of the past.  The military continues to get its share of Codelco revenues, but tensions with the neighbors are very low, and civilians set policy.  And ... perhaps inevitably ... conscription has ... well ... not quite ended ... it’s weird, and it raises a lot of interesting questions for the United States and elsewhere.

Details below the fold.

Another senate

  One rather strange thing, when you think about it, is the incredible influence that the United States Constitution has had over political structures in Latin America.  None of those polities developed under similar circumstances — the Argentine Republic comes closest, and it's not very close — and none of them had similar political traditions.  So its rather strange when you realize both how universal the American presidential-bicameral model has become and how durable it's proved.

It turns out that Bolivia also has a U.S.-style senate. Before the recent constitutional reform, each province enjoyed three senators. Now each one has four. Not much of a change there, unless the system for electing those senators (still undetermined) has the result of dividing the delegations from the other provinces while united the Media Luna ones, or vice versa. That's remotely possible: the old system worked like Argentina, giving the election winner two senators and the runner-up one, while the new system is proportional. Depending on the election rule chosen, the effect would be to strengthen parties with overwhelming support within their province and split delegations from provinces with more divided electorates. But we'll need to see both what proportional rules is chosen (the constitution seems unclear on whether the provinces or the legislature will set the rules) in order to know the actual effect.

In short, in terms of the Bolivian legislature, the new and awfully-named “Plurinational Legislative Assembly” doesn't change much. Not only is equal representation preserved in the Senate; the new reserved “indigenous” seats in the lower house are designed to insure that the Media Luna's current representation will not change. 

My opinion of the Bolivian senate, however, is very different from my opinion of the Argentine, American, and Brazilian senates.  Those are undemocratic travesties that need to be reformed. (Here's a much more democratic way of apportioning the U.S. senate among the states.) Inertia and the power of special interests are the only reasons to keep them. 

The Bolivian senate, on the other hand, is a necessary compromise to hold a deeply-divided country together. President Morales's original proposal for a single-house FTFP legislature with a block of reserved “indigenous” seats would most likely have served only to keep fueling the political violence that wracked Bolivia last year. Given that it's hard to see anyone benefitting from a breakup of the nation, the undemocracy of a senate is a price worth paying. 

¡Hasta la reelección siempre!

  I am starting to miss Anonymous.  He was obnoxious, abrasive, and arrogant, but I am now realizing that this blog is lesser sans his commentaries. 

But anyway, great news from Venezuela!  It looks like we just might have Hugo Chávez to kick around for a while more.  And I'll admit that I am in fact generally opposed to term limits.  What have they ever gotten the United States?  Eisenhower and Reagan were unlikely to have run again for health reasons, and a third Clinton term would have spared us ... you know.  All the stuff. 

Of course, Hugo isn't Ike, Ron, or Bill.  And there are circumstances under which term limits might make sense, especially in countries with histories of patronage politics.  But still.  In addition, the Bolivarian republic placed term limits on all elected offices, which is why Venezuelans voted on the following somewhat turgid question to change five different constitutional articles:

Do you approve the amendment of articles 160, 162, 174, 192 and 230 of the Constitution of the Republic, as approved by the National Assembly, that increases the political rights of the people by allowing any citizen holding elected office to be nominated as candidate for the same office for the constitutionally-established period of time, depending upon his or her possible election, exclusively by popular vote?

I like the “increases the political rights of the people” part.  Clever framing.  And, well, true. 

In short, as unenthused as I am with President Chávez, I can't view the outcome of this election as some sort of great loss for Venezuelan democracy. 

Plus, I'd bet against his victory in the next election.

Senates

 There is a debate going on downblog over the United States Senate. 

Let’s take a brief tour of Senates around the hemisphere. (To which we’ll include the Philippines, due to its political history.) The American example set in 1787 proved very influential, particularly for the larger nations of América. Did their adoption of an upper house with equal representation for federal subunits make sense? Did they keep it? 

Argentina: The Argentine constitution gives each province three senators. That’s obviously undemocratic. Argentina, however, has a historical justification for the practice. Like the United States, the Argentine Republic began as a federation of independent states. Unlike the United States, the states that formed the Argentine Republic had very little autonomous political history; most had been created from city councils that simply declared independence in the wake of the political chaos that enveloped South America after 1808. After a great deal of civil war, including the loss of Bolivia, Paraguay, and Uruguay, provincial forces decisively defeated Buenos Aires in 1852. A convention that excluded representatives of Buenos Aires hammered out a constitution the next year. That same constitution has remained in effect since then, at least juridically. 

The convention accepted equal provincial representation in the Senate in order to limit Buenos Aires’s dominance. It also had senators elected for nine-year terms by state legislatures and required them to be able to show a minimum annual income of 2,000 pesos. (That’s approximately US$67,000 today in terms of purchasing power.) Thankfully, later amendments got rid of those latter features, but equal representation remains. In short, while there isn’t really any good reason to keep the apportionment of the Argentine senate, the institution has deep roots in Argentine political history. The resemblance to the U.S. case is quite strong.

Brazil: The constitution of the Federal Republic of Brazil gives three senators to each state. The historical roots of this institution, however, are rather shallower than in Argentina or the United States. The 19th-century Imperial senate did not provide equal representation for the provinces. When the empire fell to a military coup in 1889, the new leaders had to find ways to convince provincial elites to support the new government. One of the ways that they did so was to provide the provincial governments with equal representation in the upper house, in open imitation of the American example. (In fact, the constitution of 1891 named the country the United States of Brazil.) Brazil has gone through multiple constitutions since then, but the institution of the Senate has remained. Unfortunately. 

Mexico: The constitutions of 1824, 1857, and 1917 all granted equal senate representation to each state. There was never much historical justification for doing so, other than imitation of the United States. (Mexican states gained much autonomy during the 19th century, and several declared independence, but that came about after the end of Spanish rule.) Since the country’s governments rarely ruled by the constitution, however, legal stipulations didn’t matter. Under Porfirio Díaz, for example, all legislative votes were unanimous after 1893. Nor did senators necessarily come from their putative state. Under those circumstances, the number of senators per state didn’t make a difference. The Revolution didn’t change that. Under President Álvaro Obregón, for example, recalcitrant legislators were often shot. Then came the creation of the PRI, with its iron-lock over politics, and ‘nuff said. Constitutional stipulations didn’t become more important than party rules until the 1997 midterm election. 

Mexico, however, is now ruled by a democratic government, and the constitutional rules matter a lot. As part of the transition to democracy, Mexican politicians amended the constitution in 1993 and 1996. In theory, the reforms granted each state four senators, up from two. In practice, the reforms created an upper house selected by a weak form of proportional representation. The winning party in each state receives two seats. The runner-up receives one. The remaining 25% of senate seats are then allocated to each party in proportion to their popular vote share. In effect, the Mexico’s current senate keeps the form of equal representation for each state while abandoning much (but not quite all) of the substance. 

The Philippines: The Philippine Autonomy Act of 1916 created a 24-person senate. The act grouped the country’s 50 provinces into 12 districts, each of which received two senators. The 1935 constitution of the Philippine Commonwealth dumped that crazy system, but selected something even crazier in its place:  at-large Senate elections. That is, every voter writes in 12 names. The top 12 vote-getters then become senators for six years. The exercise is repeated every three years, making for a total of 24 senators. The 1987 constitution of the Philippine Republic retains the feature.

The only polity that I can imagine justifiably imitating the United States, Argentine Republic, and Federal Republic of Brazil in the 21st century is the European Union. Then again, I may suffer from a lack of imagination.

A new constitution

Rafael Correa is the president of Ecuador.  He has a Ph.D. in economics from the University of Illinois.  Anti-Chávez well-educated high-earning professional Venezuelan women told me on multiple occasions that they consider him very attractive.

That, however, is not why he's in the news.  He's in the news because Ecuadorean voters approved a new constitution today.  Opponents call it “Bolivarian.”  Even non-opponents have called it “socialist.” Both are silly.  Correa is far from Bolivarian.  (Update:  It has been pointed out in comments that he declared himself Bolivarian in 2006, although he is generally considered to have distanced himself from Venezuela.)  Those same professionals who called Correa handsome also called him sensible, and I tend to agree.  Correa is relatively radical.  But he's also sensible and clearly a democrat. 

Which doesn't mean that the new constitution is a good thing for Ecuador.    

What's wrong with it?  Well, the the 1998 Magna Carta was pretty bad.  Its most innocuous feature is a lot of blather about social policy.  As regular readers know, I've argued that the evidence supports the idea that large social transfers are, at worst, not bad for growth and there is considerable evidence that they speed it up.  That said, spending commitments in a constitution are generally a bad idea.  Either the commitments will be dead letters, or you'll involve the judiciary in making spending decisions --- neither seems wise. 

More problematic was the amount of power it placed in the president.  He or she had control of monetary policy.  (Indirectly, since he or she appointed the central bank board, with Congressional approval.  I'm neutral on dollarization, but placing control of monetary policy in the president's hands was a bad idea.)  It removed cabinet ministers from Congressional oversight.  It allowed the president to control Congress's legislative agenda.  In fact, it prevented anyone but the president from introducing revenue bills.  It limited the kinds of treaties that need Congressional ratification to those that establish "alliances" or "integration."  It let the president call referenda.

I've only give the new constitution a cursory reading, but it doesn't fix any of these things.  In fact, it makes some worse.  Now the president has total control over making and ratifying treaties.  (Article 147, although Article 419 seems to re-establish the same limits as the old constitution.)  It grants the President the power to dissolve Congress and call new elections.  (Article 148.)  Bizarrely, it prohibits the government from assuming private debts while making it easier to renounce public ones.  (Article 290.)  And it puts monetary policy directly in the hands of the President, removing even the old constitution's fig leaf.  (Article 303.)

Plus, it bans genetically-modified products.  That's just a little weird for a constitution.   

Still, it isn't the worst constitution I've ever seen in terms of centralizing executive power.  (The 1917 constitution of Mexico was pretty bad in its original form.)  And Ecuadorean political culture doesn't have a great record of hewing to constitutional rules, so it's not clear how much any of it will matter.  Plus, it does permit limited presidential re-election, which is probably a good thing.

In short, I'm not a big fan, but it's not a disaster relative to the previous constitution, and if the ancilliary stuff brings legitimacy to Ecuador's fundamental law, then that will be good. 

But color me skeptical.      

Observatorio Argentino, versión del aire

So, as TPTM's Woman in Argentina reported, the Argentine Senate rejected the new soybean export tax by one vote. The farmers' opposition, real and ... er ... symbolic, paid off.  But the English news media is missing the real story.

The real story isn't that Congress nixed the export tax.  The real story is that the President imposed it on March 11th without intending to go to Congress at all.  She only went to the legislature under popular pressure and the threat of a Supreme Court case. 

This presages trouble.

Article 99 of the constitution lays out the powers of the Argentine president.  They are pretty extensive; more so, in fact, than the powers given the President of the United States.  Here's the key paragraph:

Only when exceptional circumstances make it impossible to follow the ordinary law-making procedures laid out by this Constitution --- and when it does not deal with the procedures that govern penal issues, taxation, issues of electoral law, or issues dealing with the regulation of political powers --- may [the President] issue decrees by reason of need and urgency, with the agreement and signature of the Cabinet ministers and the Chief of the Cabinet.  The Chief of the Cabinet will personally send the measure to the Bicameral Permanent Commission within ten days, whose composition will reflect the political make-up of each chamber.  Within ten days, the Commission will send a report to each chamber for its consideration, which both chambers will immediately debate.  A special law passed by a majority of both chambers will then regulate the procedures and scope of Congressional intervention.

The executive imposed the export tax hike on March 11th, by decree.  The farmers cried foul.  After all, Article 99 specifically states that the president's decree power does not apply to "the procedures that govern ... taxation."  The problem is that she went to Congress under pressure from street demonstrations and blockades, not because the constitution required her to. 

It is very clear that President Fernández has lost a lot of power with this vote.  It's not clear what it presages.  Her own Vice-President cast the deciding vote in the Senate:  if that's not a sign of weakness, I don't know what is.  I have a few worries. 

First, it's clear that she's lost control of her party.  That's going to make it hard to get anything done, and this is not a good time to put the country on auto-pilot.  Spending will keep rising and there's no way to automatically bring that to halt, or automatically conjure up new tax revenues.  Similarly, controlling inflation is going to require some concerted action and some tough choices, and in a country where the central bank isn't really independent a weak president is a problem.

Second, if she has lost control of her party, it might be possible for her opponents to launch a legal coup d'etat.  Article 100 of the constitution creates a Cabinet form of government for Argentina:  ministers have to sign off on practically everything, and the Chief of the Cabinet has formal powers more associated with a prime minister than a U.S.-style Chief of Staff.  On the other hand, ministers serve at the absolute discretion of the president ... but she couldn't control her own Veep.  Keep a watch on Alberto Fernández.  Things could get interesting.

Third, one way for her to reclaim authority would be to use the street:  e.g., mobilize the piqueteros.  That would be bad.  They've been romanticized by some observers, but the truth is that mob rule isn't particularly pleasant.  Watch the streets. 

One day, I'm sure, Argentina will become boring.  We're not there yet.

Democracy in America

This weekend I spent my afternoon canvassing for Barack Obama in the housing projects of New Hampshire.  I do that a lot of weekends, these days.

Yes, New Hampshire has projects.  While New Hampshire has a high median income, $57,352 in 2004 — £31,438 at 2004 exchange rates, compared with £24,302 for the rest of the U.S. of A. and £21,700 for England and Wales — the state still has lots of ordinary people. 

Now, we don’t knock on every door.  We’ve got a list of registered voters, and we only go to Democratic households.  The standard spiel is, “Hi there, we’re with Barack Obama, have you decided on a candidate yet?”  Beat … beat … then, regardless of the answers, “Well, what issues are most important to you?”  Followed by then the sales pitch.  Which can last for half-an-hour, if you hit if off with the person at the door. 

In New Hampshire, the pitch includes telling people when and where they can personally meet the candidate.  Now, I’m the first person to say that the American political system is entirely broken.  Congressional districts have metastasized into gerrymandered monstrosities of 700,000 people.  The Senate is a travesty by definition, and I wonder about my countrymen’s lack of outrage about its existence.  And we won’t mention the Electoral College — why should the switch of a few thousand votes in Ohio been enough to save the American people from the results of their own temporary insanity in 2004? 

But for all its faults, having the primary season kick off in places like New Hampshire is, quite simply, a Very Good Thing.  It brings a moment of sanity to a media-drenched political machine badly cobbled together to select a chief executive for a continental nation of 300 million people.  And I love it.

All the individuals discussed below are real people, although they also happen to be archetypes.  They’re just the most archetypical of the actual individuals encountered during our door-knocking. 

There was Parole Guy, in a private house across the street from the projects, with the tattoos running up his right arm, the odd scar around his left nostril, and the anklet.  Parole Guy was a Richardson man, his mind was made up, and hey, his girlfriend and kid were hollering in the next room. 

Then there was Crazy Old Man, who lived in a house at the end of a cul-de-sac — no, the connotation of “cul-de-sac” is all wrong, he lived on a dead end — with peeling paint, a yard full of car parts, and an old station wagon that desperately needed said parts.  Crazy Old Man nodded when he heard that we were from the Obama campaign, and then said, “Well, you know, boys, I have a beef with Obama.  He says he’s an American, but he swore in on a Koran!” 

Ah ... okay.  I chose to assume (probably correctly) that this fellow had merely confused Senator Barack Obama (D-Illinois) with Representative Keith Ellison (D-Minnesota).  I also chose not to examine why exactly this gentleman thought that there was a contradiction between being an American and being a Muslim.  (Ellison, I’d like to add, swore in on an English translation of the Koran previously owned by Thomas Jefferson.)

You also had What-Me-Vote Lady, a young and childless woman who lived in the corner unit of a clump of four newish attached townhomes.  She was young, and rather annoyed about the war (she had a brother in the National Guard), the economy (she was okay, but she was worried about all the subprime defaults), social security (her parents depended on it, and she didn’t want it to be “privatized”), and health insurance (what health insurance?) ... but why should she vote, when neither her individual vote nor the collective will of the people of New Hampshire will be decisive?

And never count out the Bring Back Bill voters.  Until a month ago, it was rare to meet a voter who had decided on a candidate, with the exception of Bill Richardson.  (There’s something about Bill, it seems.)  Today, the level of Richardsonianism stands ... but the lawn-signs read Hillary.  (When they don’t read Romney or Huckabee, who seem to be leading the lawn-sign race on the dark side.)  When asked, one very nice old Eastern European lady, had to be around 80, said, “Well, I can’t vote for her husband,” but Bring-Back-Bill often seems to be the subtext. 

“She’s got foreign policy experience — look at how Bill Clinton handled things.” 

“She can take on the GOP sleaze machine — look how Bill Clinton did it, even with his shameful behavior.” 

“She’ll be fiscally responsible — look at Bill’s record.”

It’s hard for those of us who aren’t big Hillary fans, and I am not a Hillary fan for reasons I’d be happy to get into in comments.  Which isn’t to say that she doesn’t beat all the GOP candidates cold — after all, Democratic candidates aren’t required to spout lies and denigrate the Bill of Rights in order to get the nomination.  But I have some worries about her and what her presidency might bring, and I have some convictions that other candidates would bring great advantages to the United States and her people than she cannot.  Which doesn’t seem to be stopping her support from growing.

Marine Mother was a surprise — “My son was always crazy.  He should have joined the Army, like I did.  Better still, the Chair Force.”  She was wearing a Bob Marley T-shirt.  I liked her. 

She had Republican neighbors — yes!  In a housing project! — a nice elderly white couple who came home while we were talking.  After a brief discussion of parking spaces — it was clear that they were friendly — Marine Mom couldn’t resist needling them.  “Hey!  They’re from the Obama campaign!  They’ve got some interesting things to say!  C’mon!” 

Marine Mom also pre-emptively (and unnecessarily, I might add) headed us off at the pass by saying, “I’m not going to vote for anyone just because they’re black or a woman.”  I laughed and agreed.  “By that logic,” I said, not entirely accurately, because I’m, like, not of Italian descent, “I’d have to vote for Rudy, and ’s not gonna happen.”

So was Young Mother of Big Family.  (“Big” means “two or more kids” in this context.)  “Hey!  Shut up!”  It is refreshing to see modern Americans raising their children in a healthy way, and those of you who know me will know that this statement is not ironic.   

You meet a lot of YMBFs.  They’re all different — one mentioned how she didn’t talk to her brother any more, because of politics, and it serves the bastard right that he’s lost his health insurance.  (We asked her to start talking to him again.)  Another YMBF was worried about student loans and health insurance.  Her cute little girl was covered by a non-SCHIP New Hampshire program; but too many mothers had children who were just taking their chances. 

Her next door neighbor had a big Yankees chain on and a straight-outta-East Harlem accent.  We had to end our conversation when he asked for her help with some sort of home-maintenance thing that I really feel like I should be able to remember.  I was surprised.  First, it was a project.  They rent.  From the government.  (Yes, even I have stupid conservative instincts buried deep inside.)  Second, New Hampshire is a state where you see more Red Sox flags than American banners, and it’s not like there’s any sort of Old Glory shortage around here.  What was he doing with a Yankees pendant and the kind of accent that only occurs on people born and raised between the Oranges and New Haven?

I have been equally surprised, in fact, to learn that a New York accent makes New Hampshirites more comfortable than if you speak perfect Television.  I have no explanation, not so deep in Red Sox Nation.   

One of the Young Mothers turned out to be Asian-American.  Her age was listed as 28.  So I, of course, asked her if her mother was home when she opened the door.  Thankfully, that is, in fact, a complement. 

(Coincidentally, the same thing had just happened to me in reverse.  We’d had a long conversation with another YMBF about the differences between the Perkins and Stafford loan programs.  I mentioned how great it feels to finally pay your loans off, which led her to ask my age.  I’m old enough to feel very happy at the surprise on her face when I revealed it.)

Finally, there’s Blue Collar Guy.  Blue Collar Guy is friendly, usually 50-something, and undecided but partial to Bill Richardson.  Blue Collar Guy will stand outside his house (a house belonging to a Blue Collar Guy is pictured below), and say, “Sure, yeah, they all want to stop the war.  And they all want to stop aliens from getting into the country.  And they all want to stop the insurance companies, and high oil prices, and Barry Bonds.  But that’s because that’s what we want to hear.” 

He wants proof that your Democratic candidate (a) has guts; and (b) understands that rich people aren’t “middle class.”  (Marine Mom is looking for the same thing, I should add.) 

Two Obama anecdotes come in very handy here.  They have the advantage of being true, and encapsulating a lot of what I like about the guy.  First, the time he told a bunch of union muckety-mucks in Michigan that higher CAFE standards were coming under an Obama administration. 

Second, his response to Hillary Clinton when she told him that she was against removing the $97,000 per year cap on FICA taxes.

Clinton:  “I do not want to fix the problems of Social Security on the backs of middle-class families and seniors.  If you lift the cap completely, that is a $1 trillion tax increase. I don't think we need to do that.”

Obama:  “I will be very brief on this because, Hillary, I have heard you say this is a trillion-dollar tax increase on the middle class by adjusting the cap. Understand that only 6 percent of Americans make more than $97,000 a year. So 6 percent is not the middle class.  It is the upper class.”

Is the number correct?  As of the third quarter of 2007, the Current Population Survey indicated that only 10 percent of American wage and salary workers over age-25 earned more than $87,048 per year.  The Obama campaign calculated the six percent figure by taking the CPS data — available at the 10th, 25th, median, and 75th percentiles — and fitting it to a Gompertz distribution, from which they extrapolated the sixth percentile.   

Then there are the random conversations with guys stooping, people washing their cars (well, not yesterday, it was too cold), parents playing with their kids. 

It’s a good experience.  I can’t recommend it more strongly, and that goes especially for you high-earning types, no matter your cynicism level.  You know who you are.  Trust me.  The education is worth the opportunity cost.   

And, like jury duty or joining the National Guard, it makes you a good American. 

A Million Mutinies Now

Trinidad goes to the polls tomorrow.  (Yeah, yeah, Tobago too.  Nobody who isn’t either from Tobago or employed by a multilateral lending institution could care less.)

The constitution has turned out to be an unexpected campaign issue.  The preamble, pictured above, is not the issue.  Rather, the issue is about the rest of the constitution — should Trinidad become more American, or stay British?  The government wants to adopt an elected executive presidency; the opposition accuses the government of trying to establish a dictatorship.  Ironically, the push for a U.S.-style presidency — and the American example is the one bandied about — came from groups worried that the current Westminster system gave the Prime Minister and ruling party too much power.  I won’t say whether events in the United Kingdom had anything to do with that conclusion in the (probably forelorn) hope of attracting commentary from our British readers. 

There wasn’t much evidence that the government took reform seriously — about all you could hear about the topic was from a goo-goo group at the University of the West Indies and two draft constitutions posted here.  But one of the opposition parties knew a good issue when it saw it.  One day, nothing, the next, accusations of “secret drafts” and cries of “dictatorship!” Much more fun than boring debates about the management of the Heritage and Stabilization Fund, or which highways should be widened, or whether it is better to hire lots more cops or lots and lots more cops. 

The irony, of course, is that by declaring that they’re against it, the opposition has made it more likely that it’ll happen.  Now if Patrick Manning wins the election he will — assuming his party gets enough votes — have a popular mandate to reform the country’s charter, something he never planned on until the opposition figured that it had an issue. 

The battle is between three parties:  the People’s National Movement (PNM), the opposition United National Congress (UNC), and the upstart Congress of the People (COP).  The big issue is crime, with taxes and constitutional reform coming up behind. 

Who are these parties?  Well, there’s the ruling PNM, created by Eric Williams in 1955.  Williams gathered a following based on a series of wildly-popular lectures he gave in downtown Port-of-Spain’s Woodford Square; his party united middle-class Afro-Trinidadians with the union movement.  Williams didn’t intend for the PNM to become the Afro-Trinidadian party, but considering as it was a group of Indo-Trinidadian politicians that he knocked out of power, that’s effectively what it became.  The PNM managed to survive the 1970 riots and strikes known as the Black Power Movement, and held on to power until 1986, by which point Eric Williams was five years dead. 

The Indo-Trinidadians, however, have had some trouble getting their act together.  Maybe not a million mutinies, but at least nine since 1956 — and that’s being conservative.  The first Indo-Trinidadian party, the Democratic Labour Party, suffered from continual internal splits.  It finally committed suicide by boycotting the 1971 election. 

Democratic Labour split into the Organisation for National Reconstruction (ONR) and the United Labour Front (ULF).  In 1981 the two managed to collectively win 37 percent of the vote — but because T&T uses first-past-the-post, the ONR managed to translate a 22% vote share into precisely zero seats.  (The ULF picked up 22% of the seats with only 15% of the votes.)  Realizing the problem, the two parties united as the National Alliance for Reconstruction (NAR) and won the 1986 election — helped by the fact that the economy was in free-fall by then, and it was clear to all that the PNM had clearly frittered away the fruits of the oil boom. 

You’d think that would be that, but the NAR government’s decision to pardon the organizers of the 1990 attempted putsch caused the Caucus for Love, Unity and Brotherhood to bolt the ruling party.  The CLUB renamed itself the United National Congress — I have expressed before and will again my admiration for the political brilliance of that name — and won the 1995 election. 

The new Prime Minister, Basdeo Panday, was many things, but a uniter was not one of them (I’m not sure he was all that much of a deciderer either) and widespread corruption caused the attorney-general to walk out of the party and  contest the next election under the Team Unity banner.  (I won’t.  I want to make the joke, but I won’t.  It’s too obvious.)  Team Unity won only 3% of the vote in the 2001 election, but that was enough to produce a hung parliament.  And so the PNM shimmied back into power in the 2002 election, just in time to enjoy the fruits of the second oil boom—which they do not, I must say, appear to be frittering away this time. 

You’d think that the Team Unity experience might have gotten the UNC to hang together, but you’d be underestimating Mr. Panday’s stubborness — and legal troubles.  Despite a series of corruption indictments, in Port-of-Spain and in London, Panday stuck with his party ... and that led William Dookeran (the former central bank head) to join the Team Unity mutineers and form the Congress of the People, which has tried to position itself as a cross-racial middle-class party. 

Except, of course, Team Unity’s leader, Ramesh Maharaj, has now decided to reunite with the UNC under Mr. Panday.  Why his corruption now is less intolerable than his corruption then is not clear to me.  You gotta love it.

So you’ve got a three-way election between the PNM, the UNC, and the COP.  There aren’t a whole lot of substantive differences between the parties.  The PNM’s platform is, basically, “Don’t mess with success.  Plus, we made higher education free.”  The UNC, conversely, is running under, “We made mistakes, but you really can’t trust the black people, and crime!”  The COP’s platform, meanwhile, seems to be, “In your heart, you know they both suck.” 

The COP would probably fritter away more oil revenues in other tax cuts (except for gasoline) while the PNM would build more stuff — Flyovers!  Railroads! Houses! — and the UNC would hire a lot of cops.  “The government is in league with the criminals,” says Panday, with ... ah ... not a whole lot of evidence to back that up.

Me, I suspect I’d vote for the PNM ... but that may be because pretty much everyone in Amma’s family intends to vote for the PNM.   

There’s been some violence—especially against COP candidates, one of whom was badly beaten in Laventille.  (“What was he doing in Laventille?” asks Amma.  “Uh, that was the constituency he was running in, baby,” I respond.  “I repeat,” says Amma, “What was he doing in Laventille?”)  There have also been some accusations of fraud, none of which are serious by American standards, but which the PNM government has taken seriously enough to invite in a 27-person Caricom observer team.  Caricom observation, in fact, seems to be becoming standard in the West Indies formerly known as British (plus Suriname), which underscores Doug Muir’s point that anyone who believes that international relations are anarchical is an idiot. 

I predict that the PNM will win Monday’s election.  While Trinidad’s poor performance in Transparency International’s corruption survey has become an issue, the government has done a pretty decent job of managing the oil boom and setting the country up for the post-petrochem future.  (Assuming, that is, that the Bolivarian Republic doesn’t make such a botch of things that there is no Venezuelan gas for Trinidad to use.)  Crime is a problem — watch this space — but the opposition has been pretty short on magic bullets, and the government has gained credit by making solid headway against the one violent crime that it’s actually fairly easy for an even quarterway competent government to fight:  kidnapping for ransom.    Finally, free higher education will get you a lot of middle-class votes who might have otherwise gone the other way.  Combine that play for the “agency brown” constituency with the PNM machine’s lock on poor Afro-Trinidadian votes and the UNC-COP split for Indo-Trinidadian ones, and you’ve got the potential for a landslide. 

The real problem is that a PNM victory, as mentioned above, will have the side-effect of making constitutional reform far more likely.  Trinidad gained independence under a 1961 Order-in-Council intended to give the “territory” self-government under the West Indies Federation.  Other than a few cosmetic changes in 1962 — changing “premier” to “prime minister” and the like — Trinidad remained under the 1961 order until 1976. 

The 1976 constitution replaced the Governor-General with an elected president, and created a wide range of executive officers independent of the Prime Minister.  The reason was the Black Power Revolution.  In the wake of the events of 1970, there was a widespread feeling that the executive’s power needed to be curbed.  A 1974 committee recommended that a President elected by a two-thirds majority of an electoral college consisting of Parliament and all local government councillors sitting together and voting by secret ballot replace the Governor-General.  The idea was that the President would both select the Prime Minister and appoint the heads of various independent organs, in order to reduce the prime minister’s overwhelming authority.  (Cutting ties with the Queen was a side-effect, but not the cause of the change.) 

It says something about Eric Williams, I think, that he pushed through reforms that limited his own powers.  Now, not all of them — the 1976 constitution created a presidency elected by a majority of both houses of parliament, not a separate electoral college.  And the new presidency proved to be more partisan than intended:  frex, the PNM president appointed a PNM government after the 2001 hung parliament.  But the new constitution successfully weakened the Trinidadian prime minister by quite a bit compared to his or her British counterpart without paralyzing the government.  (Lib Dems, y’all might wanna take a look at the Trini constitution, I think.) 

But now there’s the executive president proposal.  Two drafts are in circulation.  To be fair, I prefer Trinidad’s current system to a more American-style one.  (Canadian readers, feel free to express smug satisfaction, but note that we here in the great United States have better weather, better roads, and better hockey players.  Plus, your flag looks like a badly-designed corporate logo.  So go take your health care and your sane politics and your lower crime and all that and ... express smug satisfaction.)  That noted, the two drafts differ on whether the executive president would be elected by popular vote or by the parliament, and the government seems to favor the latter.  So regardless of your opinion about a fixed-term executive president, the idea of an executive president elected by the parliament seems like a disaster all around, the worst of all worlds, and I hope that it doesn’t come to that. 

In other words, the PNM deserves to win — but not by too much.