These are all great questions, Joe.

Here’s how a Mechanic of Statecraft who has worked at the state and local levels of government for +25 years would react to your questions.

Assumptions at the outset:

1. The problems of tomorrow are created to today. Refrain from the temptation of creating more than your fair share.

I will refer to Citizen’s United below as an example of this phenomenon.

2. Solutions must take into account potential secondary consequences, which should mitigate increasing the problems of tomorrow.

The concept of a fiscal note, as described below, will help elucidate means to reduce future problems.

3. Proposals must be incredibly concise and precise.

Less is more. When performing surgery on the body politic, you use a scalpel—not a chef’s knife.

Understandings:

Unlike the States’ constitutions that can micromanage matters, the U.S. Constitution is a framework that creates functions and refrains certain actions. That spirit must be honored and maintained. Congress has enumerated powers, unlike the fifty legislatures that have limited powers. Congress may only do that which is permitted.

I. The Bureaucratic State

The Constitution could be clarified that, indeed, the promulgation of an administrative rule is an inherit legislative power that Congress may delegate to an executive branch agency, so long as specific guidelines are provided. The Constitution could further stipulate that Congress will establish means of oversight in the promulgation process.

Practically, this would require Congress, by joint rule, to create a joint committee on administrative rules. It would review each agency’s new or revised rules, allowing for an additional set of hearings. It would ratify that the Administrative Procedures Act has been followed adequately. OMB (the Office of Management and Budget), which the federal government’s budget office under the president, should be required to submit to the joint committee an independent fiscal note that outlines the provisions of the proposal and estimates the cost both to the agency and the impact upon the national economy. The joint committee would have the power to direct an agency to take its rules proposal back to an earlier stage of the promulgation process and repeat the step(s). Congress, through its joint committee, should have the power to suspend an agency’s rule proposal for up to 12 months, allowing Congress time to address the policy matter through legislation. However, to entrench the separation of powers, Congress does not have the power to directly create or amend administrative rule.

Moreover, there are other means by which policy is created that should be addressed, specifically, executive orders by a president and directives by a department secretary or independent agency head. I would suggest by statute—and not by constitutional amendment—that all such edicts should be sunset after a specific period of time, say, 10 years. This would require existing “gray” policies to be brought fully into congressional light to be implemented either as statute or administrative rule. The law could be written so that if there is an attempt by a president or secretary to rescind a directive and reissue the policy on the following day, in an attempt to “restart” the clock, subordinate persons within the executive branch would have a legal duty to seek judicial judgment on whether this was a genuine “new” directive or a reiteration of the same. The Court would have power to void reiterations.

II. Corporate Influence

Wealth is in the hands of more than just corporations. I view this matter in terms of organizations, including not-for-profit organizations and trusts as well as for-profit corporations. The federal government is many things to different people. It is a clearing house for government contracts. Many of those service providers are in the not-for-profit realm.

I fail to see that a constitutional amendment on corporate influence is warranted. When you start affecting First Amendment rights, one really needs a scalpel and not chef’s knife. Ask yourself, what caused the chain of events that led up to Citizen’s United?

My suspicion (which is a belief and not fact, yet) is that McCain Feingold campaign finance reforms, enacted over 20 years, caused the situation that resulted in Citizens United. Those changes to federal campaign election law prohibited political campaigns, political parties, and PACs from coordinating their activities and sharing resources. As one electioneer told me, “We can’t so much as share a stapler with the others.” Everyone became siloed. That requires everyone to raise more money, which likely lead to businesses contributing more money.

To reduce corporate influence in campaigns, I would investigate and repeal certain provisions of McCain Feingold, especially those provisions that prohibit the sharing of money and resources. This should reduce inflation when raising campaign funds, and it could give political parties better control over candidates and PACs.

III. New Imagination

Indeed, it does require new imagination to create a new world that maintains the principles of the past.

State governments will likely need to play a more active role in the future. In Citizens United, the Supreme Court noted that corporations are charted by the states--not the federal government. The states can control what they can or cannot do. I suggest to you and your readers learn about the Montana Plan where residents in that state are proposing to prohibit corporations from spending money on campaigns.

States have other tools at their disposal too, such as economic development initiatives and procurement procedures, that can influence corporate involvement in politics.

(NOTE: The Mechanic of Statecraft is a digital textbook designed to educate readers about lawmaking processes and the development of public policy so that they may understand more, think deeper, and govern well.)