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Term limits for SCOTUS ... brilliant! How about lying to the public next? [1]

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Date: 2022-07-28

Come back Al Franken ... the nation needs you

Too often in these trying times we hear emotional pleas for big changes to the Constitution like scrapping the Electoral College or redoing the Senate. Wastes of time, energy and blood pressure.

History has shown that state/government only changes at the architectural scale from either (a) big violence … revolution or losing a war; or, (b) having enough cohesion/consensus across the ruling strata, in sync with the broader populace. (Or hybrids of the two, like the current situation in Chile … but that’s been rarer in our advanced nation peer group.)

Count me with those who wish the USA had implemented Jefferson’s idea of a new constitution for each generation, for the record. Not going to happen.

So, what might be do-able? I’m prompted to write this diary based on the bill introduced by the Democrats in both the House and Senate to change the tenure rules for SCOTUS.

The proposals for expanding/packing the court that have had the blue side all in a lather would just set off an incessant tit-for-tat whenever either party gets control of both Congress and the White House, making the problem of the politicization of the Article III branch worse, not better. This term limit idea, though, just might work.

I say that because it taps into a couple of the sensible purple/red core tenets that term limits are good things, broadly speaking, and that fairness is important, especially to avoid tit-for-tat. (And early polls show it’s got supermajority popular support, including 57% of Republicans.)

This diary isn’t to debate that aspect, I’m just pointing out that there’s a practical-tactical (I’ll just substitute ‘pragmatic’ from here on) systemic cleverness and political shrewdness to this proposed fix.

Time will tell, but I like it.

Got me wondering if there might be other similar patches/fixes that would be equally pragmatic in the sense that they could garner enough consensus across the blue-purple-red non-fringe wide band of the political spectrum, and also achieve an important strategic outcome ... like reducing politicization of the Judiciary.

With that long-ish setting of the context, let me dive in a bit to this first proposal, per the title of the diary. Let’s call it the Franken-Rauch Defense of Truth in Government Act. I trust in this forum no one needs reminding of the structural/architectural erosion of our entire system from the epistemic crisis that has reached a crescendo with Trump, his MAGA rabble, and his cynical Machiavellian enablers in high places like Murdoch and the McC twins.

The well-informed DK readership will roll its eyes at me, but I admit that until all the Trump/Mueller/Durham saga, it hadn’t really clicked for me that lying to law enforcement, not under oath, was a crime. Makes sense as it’s an act obstructing justice.

So why not stretch the principle a bit. If Justice itself as a larger (and granted fuzzier) philosophical principle depends on good government, and that depends both on the integrity of those in power and genuine, trust-based social cohesion, then let’s make it a crime for anyone running for or holding office to lie to the public.

The bill could be very short. Just extend all the relevant language of 18 US Code § 1001.

To the pragmatic aspects. We could anticipate at least a few failure modes.

abuse of the system — this would be a massive expansion of the way in which corrupt investigation can be used to harass and hamstring a political opponent (e.g. how Clinton and Trump each felt about their impeachments, and the basis for the OLC’s opinion on sitting POTUS immunity)

cost of implementation — just look at the time and $ taken up by Durham’s little nothing-burgers based on lying to the FBI

reducing the amount or communication from persons covered by the new law

(I’m sure there are others, but this is just a diary, not a full blown white paper proposal.)

The first two I think could be mitigated by leveraging the existing media fact-checking ecosystem. Think of it like the different models of VAR in sports: keep on playing until there’s compelling evidence there’s been a foul. The same way we have the concept of “newspapers of record”, I imagine that collectively the responsible media could come up with a system that could find a balance.

Dare I say it, could even be a progressive use for AI as long as it’s more like VAR than the new Chinese court system. Automated assistant rather than full authority decision maker.

For the cost side, maybe gradations of the severity. Sort of like all the different rules for driving, from parking tickets through moving violations to DUI and vehicular manslaughter, etc… Say the vast majority of daily fibs and spin distortions much more automated and small fine-like penalties and mandatory corrections, like we have with responsible journalism. But with a points system for the repeat offenders.

Bigger penalties for bigger lies. For the blue team, just think of GWB and WMD or Trump and bleach, or his perfect phone call, or having no business in Russia. (To be fair, WJC’s “I did not have sex with that woman”.) Bald faced lies that actually matter to the public, and that serve as instigating catalysts for partisan rancor, decohesion and polarization, thereby corroding and weakening the whole system.

On the risk of reducing communication, I think the right approach would be to experiment at the local or state level. That’s how term limits seem to have evolved (modulo the 22nd Amendment).

That’s enough for putting the idea out there. Vote on the poll or comment if you have thoughts. I’d be particularly interested in political science or constitutional law research pointers … maybe best practices from the countries with the least corruption.

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