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January 18, 2007

What (should) unite us

Today’s Downsizer-Dispatch . . .

In response to our editorial earlier this week, “What Divides Us,” a reader suggested that we address OMB Watch, and their ilk, directly — explain where they are wrong about the grassroots lobbying provision of S.1.

Our opponents at groups like Public Citizen, Common Cause, and OMB Watch, want to make this a partisan/ideological issue — to divide and conquer. They want to regulate so-called “Astroturf” groups (a funny play on the word “grassroots”), which they maintain are “fake” groups.

The thesis of the recent OMB Watch report, as well as the central claim of an open letter from Joan Claybrook of Public Citizen, is that the new regulations they propose won’t _prohibit_ speech and political activity.

This is an instance of correct facts organized in a fashion that creates the wrong impression. These new regulations may not out-right prohibit, but they will definitely abridge and hurt small, upstart groups. They will chill political participation at the grassroots. AND YOU CAN VOICE YOUR OPPOSITION HERE.

Yet, as we’ll explain later in this piece, they won’t really do much to the so-called Astroturf class of groups.

On a more fundamental level, it doesn’t matter whether or not the regulations “prohibit.” We all agree that the Constitution excluded the ability to prohibit the rights in question. But the Constitution goes much farther than that.

And what should unite us is our Constitution and our desire for a healthy democracy where not only the rich and powerful can play, but where everyday Americans can petition their government without reservation.

And so today, I want to make the ultimate argument: I want to break this down to a fundamental level that every American should respect — a Constitutional argument. And we’ll conclude by offering a real solution to the problems these good government groups desire to address.

Let’s all turn in our hymnals to the First Amendment. When we said we were going to make a Constitutional argument, well, much of our case is really junior-high English.

1) The first rule of Constitutional jurisprudence is that every word is carefully selected and has meaning. And if you’ve ever been on a committee drafting a statement, or had to sign a contract, you know that this is true.

Well, in this case, the little, usually overlooked words have meaning too.

Four types of political activity are protected by the First Amendment. Let’s review the wording:
a) “the freedom of speech”
b) “or of the press”
c) “or the right of the people to peaceably assemble”
d) “and to petition the Government for a redress of grievances.”

We know that there are at least three distinct activities covered because the first three are preceded by a definite article (the, as in “the” freedom of) and all four are divided by conjunctions, with the first three divided by a conjunction that implicitly suggests difference (or).

Therefore, consistent with both the rules of English and the first rule of Constitutional jurisprudence, each of these are distinct rights, guaranteed to “We the People.”

And every day, groups like — as well as groups like Public Citizen, Common Cause, and OMB Watch — employ these very same rights.

We are peaceably assembling an army of grassroots, DC Downsizers to redress the grievance of an overgrown, over-intrusive, wasteful government that has disrespected its Constitutional limits. We speak out in media interviews on the issues near and dear to us, and this very message you’re reading right now is an example of press rights in action.

I establish this point as groundwork for the next . . .

2) According to the First Amendment, the rights listed above cannot be “abridged.” Look it up in your dictionary. Could the Framers have chosen a broader term? They didn’t say, “prohibiting.” If they had, lots of regulations would’ve been permissible under our charter as long as they didn’t outright prohibit speech, press, assembly, or the right to petition the government. But the Framers did not use the word “prohibiting.” They used the word “abridging.” It just doesn’t take much to abridge. Abridge means trim, delete by omission, reduce, diminish, lessen, curtail.

Now, if Congress imposes a burden, however minimal, on your right to organize the grassroots, are they not abridging your rights?

3) And here’s the frosting on this cake. “Congress shall make no law . . .” We wonder, “What part of Congress shall make no law is so hard to understand that so few in our government seem to grasp it?” NO LAW. Just plain NO. The Founders didn’t write, “In only these instances,” or “After meeting the following tests,” or “If there’s a compelling state interest.” They said, N-O. And that seems plain and obvious.

4) And as if that’s enough, the Founders explained what they meant. In Federalist No. 10, former President James Madison, often called the Father of the Constitution, said that “faction,” the 18th century word for “partisan,” was a real problem. It concerned many of the Founders, including notably, George Washington, who warned against it.

But Madison didn’t just identify the problem. He supplied a remedy. And do you know what that solution was? MORE FACTION.

Madison suggested that regulation wasn’t the answer and that groups would balance each other and the public’s interest would win in the end.

The grassroots lobbying provisions will chill the grassroots and reduce, or abridge the full flowering of balancing factions. Should it become law, some groups will never be born. Others will be unable to achieve any degree of success. They will not provide the factions we need to balance other factions.

But the major corporations and the unions, which are virtually exempt for all practical purposes, they will continue, nearly unimpeded. Their “factions” will triumph over the rest of us because we couldn’t employ Madison’s remedy.

So to Public Citizen, Common Cause, and OMB Watch, I say, indeed, you don’t seek to _prohibit_ grassroots activity and, further, I’ll concede that not all grassroots activity is regulated under this bill. But the very activity of groups organized like, and groups the size of, will be far more regulated, by proportion, than any Astroturf organization ever will . . .

. . . that is, if those Astroturf groups are regulated at all. Yes, we’re suspicious that this Utopian legislation regulates the “big boys” even one iota. To begin with, communications with “members” is exempt. That alone confers a special advantage.

Surely this is not what you meant to do, is it Public Citizen, Common Cause, and OMB Watch? Please, please, please, join us in opposing your own proposal, lest you do damage to the very ends you claim to seek. We beg this with the utmost in honest love, respect, and concern.

But at an even more fundamental level, there’s an economics lesson being missed here that’s as basic as supply and demand. Government funding, contracts, and the like, are incredibly lucrative. The dollars in question, the special favors, are profitable enough that they are in high demand. Yet we are told that the real problem is the culture of corruption — the abuse of power. Well, as my friend Michael Cloud says, “It’s not the abuse of power; it’s the power to abuse.”

In other words, the federal government is way too big. If anyone really wanted so solve the problem, they’d do one more thing that Declaration of Independence author and former President Thomas Jefferson suggested, bind down the government with the chains of the Constitution.

A pie as big as the Big Government pie is going to attract a lot of folks looking for a slice. So long as we, as Americans, treat government like a savior to all our problems, both great and small, there will be enterprising people lining up to provide those savior services at a high rate of pay.

And it is contrary to the very principles of these reform groups, to pretend otherwise. And on this final point, we will remind them of their own rhetoric.

In 2002 and 2003, we organized a group of plaintiffs and helped fund a lawsuit all the way to the U.S. Supreme Court. Our lawsuit challenged the Bipartisan Campaign Reform Act of 2002 (a.k.a., McCain-Feingold). One of the arguments advanced by our opponents, and that appeared to hold great sway with members of the Court’s majority in the decision, was the Hydraulic Principle.

The fluid in a hydraulic cylinder will find any cracks in the cylinder and seep out. Similarly, our opponents argued, money will find any cracks in the system, and clever lawyers, accountants, and political consultants will find ways around the law. They were right. Jack Abramoff, and possibly Tom DeLay, did just that. But what this really means is that . . .

The entire campaign finance regime is a dog chasing its own tail. The faster it runs, the faster the tail gets away. The deeper the cracks. The bigger the scandals. And the greater will be the abridgements imposed on “We the People” in a vain attempt to repeal reality.

There really is only one way to slow down the tail — dare I say to catch it. Downsize DC — reduce the size, the scope, the power, the clumsiness, the intrusiveness, the wastefulness, the debt, and the expense of Big Government.

And turn back to the Constitution. Instead of restricting the First Amendment rights of the American people, honor their Ninth and Tenth Amendment rights. Interpret the people’s rights broadly, return powers to the various states, or better yet, to the American people.

That solution would be good government. It would be less corruptible government. It would both abide by the law of the land and honor Americans’ rights.

We invite all groups to unite under the principles set forth under the First, the Ninth, and the Tenth Amendments and to adopt Madison’s Remedy.


So please, take AGGRESSIVE ACTION now. Here’s what you can do. Go HERE

1) Log-in to send a message using our system.
2) Read the message to send to Congress and put it in your own simple words, so that you can . . .
3) Call both of your Senators. The phone numbers you need are at the site once you’re logged-in.
4) Leave a message with both of your Senators.
5) Please ask, before you finish the call, where your Senator stands on the Bennett Amendment 20 to S. 1.
6) Then, since you’re already at the website, go ahead and send a message using our system.
7) When you’re done, please send a message to and tell my team what these offices said. I will share your information with other members of our coalition and provide a report tomorrow.

A vote could occur this afternoon or tomorrow, so please act quickly. The members of the two boards of Downsize DC and our staff have already made these calls too.

And there is one more big step you can take to improve the odds of success. We hope you appreciate the plain-spoken words of today’s message. If so, forward it to everyone else you know whom you think cares about the rule of law and the rights of the people.

Thank you for being a DC Downsizer,

Jim Babka
President, Inc.

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