WHAT IS ACT 2? THE NAME: We can think of U.S. history, from colonial times to the modern era, as the first act of our political drama. Once we have implemented needed reforms, we will embark on Act 2 and enjoy another 200+ years as the world’s beacon of freedom. Experience teaches us that we must continually monitor our government, applying corrections when warranted, to protect personal freedom and enhance the general welfare. THE MISSION: Act 2 presents a non-partisan blueprint for reorganizing and reforming the federal government. It offers creative solutions for long-standing problems—solutions that emphasize integrity, transparency, and accountability in all public discourse. Act 2’s goals are to achieve an effective government and an informed electorate—critical elements of a successful democracy. We will accomplish these goals through constitutional amendments. THE REWARD: If we implement the Act 2 reforms, we will soon enjoy a federal government that protects our personal liberty and individual rights—one that respects the Rule of Law! For an overview of this new and improved government, see the back cover. Act 2 Inc., a Colorado non-profit corporation, is the sponsor of the Act 2 movement and website: act2blueprint.org. ©2016 FRANK W. KEENEY 2 CONTENTS What is Act 2? ................................................................................................................ 2 Contents ......................................................................................................................... 3 On the Brink .................................................................................................................. 5 How Do We Save the American Experiment? ................................................................................ 6 Facing the Issues ........................................................................................................... 8 Problem #1: Who Is Enforcing the Law? ......................................................................................... 8 Problem #2: The King George Wannabes ............................................................................ 8 Problem #3: Leaders Hamstring Congress ............................................................................ 9 Problem #4: Bureaucracy Runs Amok .................................................................................. 9 Problem #5: The Budget End Run ...................................................................................... 10 Problem #6: Money Buys Power ......................................................................................... 10 Fighting Back ............................................................................................................... 12 The Amendment Process...................................................................................................................... 13 Proposed Amendment #1: For an Independent Branch of Government ........................ 13 Proposed Amendment #2: For Executive Branch Restraint ............................................. 15 Proposed Amendment #3: For Term Limits ...................................................................... 15 Proposed Amendment #4: For Ensuring Honest Finances .............................................. 16 Proposed Amendment #5: For Governing Campaign Finance......................................... 17 Reforms by Administrative Action ....................................................................................... 17 About the Act 2 Author ................................................................................................ 20 Acknowledgements ..................................................................................................... 22 A Glorious Day in America! ......................................................................................... 23 IN ACT 2 LITERATURE: Our use of the term democracy follows contemporary general usage: 1. A government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system; 2. A state having such a form of government. The alternative to a democracy would be some form of authoritarian government. 4 ON THE BRINK Our form of government has been called the American Experiment because it broke new ground in preserving sovereignty in the people, and its success was far from assured. But the experiment has survived for 225 years and can claim some notable achievements: Rapid development of economic power that dramatically improved the standard of living and reduced poverty levels. Startling advances in technology that positively impacted society. Development of a safety net for the disadvantaged. Is our society perfect? Of course not. But we can take pride in what we have accomplished. The sound base we have established has put us in position to continue improving our society. However, as important as these achievements have been, of even greater import are America’s international accomplishments in the 20th century: We played a pivotal role in saving Western civilization in two horrendous world wars. We gave critical support to rebuilding our former adversaries in those wars. We defended Western nations from the threat of world conquest by communist nations whose leaders killed nearly 100 million of their own people in an attempt to restructure society. Having enjoyed improvements in our well-being, and having survived grave threats to our way of life, it seems incredible that we now face an existential threat from within! As we mastered the skills of sophisticated mass marketing, alert political operatives saw an opportunity: they could use those techniques to manipulate the public, gaining political power for special interests. At the same time, aggressive political figures found they could subvert our 5 constitutional checks and balances to promote their personal agendas while ignoring the will of the people. The result? Our government has evolved into an arrogant, self-serving bureaucratic monster that impinges on our personal freedoms while special interest groups move aggressively to claim more of the national wealth. These developments have pushed us to the brink of chaos—and looking into the abyss, we can see our damaged republic collapsing. Our current trajectory spells doom for the American Experiment. How Do We Save the American Experiment? A basic principle of our republic is that each individual has worth and has the ability to participate in our system of governance. For this principle to work well, we must provide an environment that allows each person to develop his or her talents; contribute to a healthy, vibrant society; and enjoy a satisfying life. Today, this environment does not exist. Instead, we have a dysfunctional government dominated by greedy special interest groups and arrogant officials. We must undertake serious reform to save the American Experiment for our children and future generations to enjoy. The need to restrain executive and bureaucratic overreach has been a growing concern in recent years, and the unpredictable 2016 presidential race has only made that need more urgent. To create an effective government and protect ourselves from governmental excesses, We must enact non-partisan federal government reforms that will repair the republic and transform the culture in Washington. A program of reform designed precisely for this purpose is now available; we call it the Act 2 Reform Blueprint. Enactment of the reforms suggested by Act 2 will pull us back from the brink of collapse and repair our damaged republic, putting us on a new trajectory of hope and faith in the human spirit. The Act 2 Reform Blueprint is introduced in a 12-page booklet entitled Our Tipping Point, and the reforms are outlined in this booklet. When you read this material, please give yourself ample time to contemplate it—in fact, I recommend reading it through twice. Once you have absorbed the message, we believe you will agree the Act 2 reforms are compelling and could dramatically transform Washington for the better. The Act 2 booklets are available on our website, act2blueprint.org. We urge you to bring them to the attention of your family, friends, and work associates. 6 We are pleased that reform-minded members of the Senate and House introduced legislation in 2016 touching on some of the issues addressed in Act 2, and we wish them well in their efforts. However, These issues are so important that they should receive permanent fixes through constitutional amendments. If amendments are simple in concept, they can avoid the complications, controversy, constitutional challenges, and unintended consequences that often follow major legislation. This is the goal of Act 2, and its proposed amendments are simple in concept yet profound in impact. They are statements of principle that will guide future legislative programs, keeping us on the right track. 7 FACING THE ISSUES In the booklet A Catalog of Problems, we compiled a broad array of governmental problems. All of the problems merit concern, but if our reform effort is to succeed, we must narrow our focus to the central issues. Following are the six issues primarily responsible for the dismantling of our democratic institutions. Once these are fixed, we will have the necessary structure for working our way through other problems. Problem #1: Who Is Enforcing the Law? Answer: Nobody. The Constitution requires “. . . the President to . . . take Care that the Laws be faithfully executed.” This requires execution against the government itself as well as against the citizenry at large, and has an inherent conflict of interest: the president is duty-bound to enforce the law against his own office as well as the executive branch departments under his supervision. Our history is replete with examples (in both parties) of presidents failing to fulfill this duty; in fact, examples where they did fulfil this obligation are difficult to find. Investigations by the attorney general, when they do occur, are typically partisan witch hunts rather than searches for truth. As a result, discipline of the executive branch has been lacking throughout the history of our republic. Rigorous enforcement of the law is not possible with our current structure. For this purpose, we need an independent organizational unit outside the federal government that is controlled by the states. Problem #2: The King George Wannabes In recent years, presidents of both major parties have extended their assumed authority far beyond the scope intended by the authors of the Constitution, and there is no mechanism to effectively 8 block this expansion. The available remedies (lawsuits, budget defunding, and impeachment) are clumsy tools that are protracted and problematic and require considerable time and effort by Congress to pursue . . . and are often fruitless. Because the executive branch often bypasses our elected officials in Congress when acting on national issues, We the People are disenfranchised. A primary objective of our Constitution was to prevent the rise to power of a tyrant monarch such as King George III of England . . . But today, we see the ghost of King George roaming in Washington. Problem #3: Leaders Hamstring Congress The leaders of Congress have great latitude to change legislative procedures, and can limit debate on an issue to railroad a bill into law. The poster child for this conduct is the Affordable Care Act of 2010. Putting aside the merits of the need for an improved national health care system, the procedures followed by the leadership were problematic because they prevented free debate and resulted in a deeply flawed law that was clumsily implemented—after five years it is still not working well, and it certainly has not delivered on the promises made to secure its enactment. This behavior by the congressional leadership prevents our best collective thinking from being applied to national problems. Basically, it encourages bad lawmaking. Problem #4: Bureaucracy Runs Amok The executive branch has grown into a leviathan of 2.7 million employees (excluding uniformed services), and has taken on a life of its own, defying attempts to manage or control it. It produces new regulations at a mind-boggling pace, with an annual output of 80,000 pages and growing. This torrent of new mandates puts a huge burden on businesses, other organizations, and citizens. The mandates stifle the innovative creativity that has produced the highest standard of living in the world, and are slowing our nation’s ability to respond to its urgent needs. Today, there is no direct, effective means of controlling this bureaucratic monster. 9 Problem #5: The Budget End Run For decades, we have been granting promises of generous future retirement benefits to public employees and operating the Social Security, Medicare, and Medicaid programs without regard for the solvency of the country—and our moment of reckoning is fast approaching. Through these actions, the federal government has accumulated off-budget unfunded liabilities estimated at more than $100 trillion, and we have no reasonable hope of having the resources to satisfy these obligations as they come due. Our federal officials refuse to acknowledge and resolve this huge financial burden, leaving it to our children and future generations to cope with. This has been called the greatest intergenerational wealth transfer in the history of the world. Our children will call it grand theft. Congress uses another magic trick to grant financial favors to favored groups without funding them in the budget: it grants subsidies as credits and deductions under the tax code. This allows Congress to dispense these favors without prioritizing them with the many other issues competing for federal funding. The process of setting priorities is one of the most difficult tasks of government, but it is a key to effective governance. To do it successfully, all requests for benefits from the government must be submitted to the discipline of the annual budget. Problem #6: Money Buys Power One of our thorniest problems is the way special interests can channel large sums of money to candidates in federal election campaigns. Political parties and political action groups collect large sums from organizations and wealthy individuals and direct them to campaigns that will enhance their power in Washington. Billions of dollars move around the country to targeted races during every federal election, often drowning out the messages of the candidates. With this torrent of cash, voters may have difficulty assessing each individual candidate’s abilities. But the lonely candidate has no choice: if he or she is to run a competitive campaign, he or she must seek these funds—and thereby provide access for special interest groups that want to advance their agendas through federal laws and regulations. Because of the pervasive influence of money on elections, our federal officials must spend an inordinate amount of time raising funds for their next election. In his latest book, By the People, Charles Murray reports that one of the major parties recommends that members of Congress spend four hours a day in telephone fund raising and one hour on constituent service. This allocation of time may help explain why Congress has failed in recent years to assert its rightful legislative role: 10 members simply do not have enough time to perform the duties we elected them to do. This leaves a power void that the executive branch has been only too eager to fill. Recognizing the corrosive nature of this practice on our democracy, reformers in Congress have worked hard to control it with a series of campaign finance laws, including the offer of federal money to candidates. But despite their best efforts, the laws have only succeeded in rearranging the deck chairs on the Titanic. Special interests continue to wield a strong influence on national policies through election campaign contributions. Murray refers to this as the “systemic corruption of Washington.” 11 FIGHTING BACK The non-partisan Act 2 Reform Blueprint offers solutions for these critical issues. It proposes five constitutional amendments, but even the first two alone will deliver a game-changing 1-2 punch to revive our moribund federalism. The amendments will: 1. Empower the states to enforce the law against the federal government through a new organizational unit that we are calling the Independent Branch. This new unit will be supervised by a board appointed by the states, rendering it independent of the federal government. It will also be a safe haven for federal departments such as the IRS that need to be protected from partisan meddling by the president and/or Congress. Among its other functions, it will include: a. A Citizen’s Ombudsman Office to defend the public from aggressive acts by the government. b. A unit to improve transparency in government by managing responses to requests for information. c. An audit function to attack waste, fraud, and inefficiencies throughout the federal government. 2. Enable Congress to restrain the executive branch and independent agencies by giving it the power to block new regulations—a power reciprocal to the president’s veto over congressional acts. This will curtail executive and bureaucratic overreach, but will leave the president and agencies with an option to challenge the congressional act in a legal action. Since the legal option can be ponderous and costly, a proposed action would be stayed while the legal challenge is played out—rather than the current system, which allows the intended action (which may be unconstitutional) to be put into effect while a judicial remedy is pursued. This will correct the current bias, which favors questionable action. 12 3. Impose term limits on congressmen, Senators, and the judiciary in order to break up oldboy networks, bring in fresh thinking, reduce the influence of special interests, and prevent age-related infirmities from degrading performances. 4. Require annual funding of all future obligations (now estimated at more than $100 trillion) that are destined to fall on future generations to satisfy, and require annual budgeting of tax credits, tax deductions, and other subsidies. 5. Modify campaign finance laws to sharply curtail the power of special interests, giving voters in each election district the right to quiet enjoyment of their elections without outside interference. Taken together, the five amendments will start us on a path to effective government and an informed electorate. If we can exhibit the collective wisdom and courage to implement these reforms, we will soon have a government that people around the world will seek to emulate. The Amendment Process The writers of the Constitution gave us tools to repair the government when needed and had the foresight to give us two methods of amending the Constitution: First, Congress may approve amendments for submission to the states for ratification. Second, state legislatures may call for a convention to consider amendments. In either case, a proposed amendment would become effective only when ratified by 75% of the states (38). This high bar for ratification is our protection against attempts to subvert the process. Act 2’s first appeal for reform will be to Congress. If Congress does not take action, we will take our case to the state legislatures. Amending the Constitution is not an insurmountable obstacle—we have already done it 27 times! Proposed Amendment #1: For an Independent Branch of Government Tentative name of new organizational unit: Independent Branch. Purpose: To render the federal government more effective in implementing constitutionallydetermined public policy. 13 Governance: The Independent Branch will be governed by a Board consisting of one member chosen by each state legislature, for a term to be determined. The Board may provide for selection of committees, including an executive committee, consisting of fewer than all members. Funding: The budget of the Independent Branch will be funded by the federal budget and determined by procedures (to be established) designed to reconcile independence with traditional legislative control over appropriations. Setting it as a percentage of the federal budget is one possible approach. If these procedures prove inadequate, the Board may request that the states provide supplementary funding. Composition: The primary responsibility of the Independent Branch shall be the enforcement of the law against the federal government, so it will have a mini-Justice Department for this purpose. In addition, the Branch will include a) those executive branch groups now charged with monitoring procedures within the government, and b) a few additional groups. Examples of groups that will be part of the Branch are the General Accountability Office, Federal Election Commission, Freedom of Information Act Enforcement Agency, Federal Compensation Agency, Citizen Ombudsman Office, and Office of Government Ethics. Means of accomplishing purpose: The Independent Branch will develop improved procedures for operation, popular participation, and punishment and cure of abuses for the federal government. The Independent Branch will essentially be a specialized executive branch. The Constitution requires the President to “take Care that the Laws be faithfully executed.” However, execution of the laws requires execution against the government itself as well as against the citizenry at large. Inherent in the former duty is a conflict of interest that promotes, or at least permits, unacceptable levels of waste and illegality within the government. Establishment of the Independent Branch will resolve most of that conflict of interest by empowering the new Branch with the following functions: Reviewing rules of each house of Congress for the sole purpose of ensuring adequate free and fair debate. Approving, and perhaps drafting, administrative rules for executive departments and independent agencies. Relocating government groups to parts of the country other than the Washington, D.C. area. Investigating and prosecuting crimes allegedly committed by government officials. Providing an administrative procedure for discipline (including potential removal) of any appointed government official for misconduct in, or neglect of, duties. 14 Periodically auditing and otherwise reviewing government programs to eliminate fraud, waste, and other abuse. Proposed Amendment #2: For Executive Branch Restraint Many people believe that the executive branch, under presidents of both parties, has overreached itself in recent years. However, current remedies for overreach—impeachment, lawsuits, and denials of funding—have not proved adequate to address the problem. We therefore support an amendment providing as follows: Whenever the President or any independent agency of the government of the United States proposes a regulation (or order) governing matters of domestic policy, the President or agency shall inform Congress of such proposed regulation at least sixty (60) days prior to its intended effective date. If either the Senate or the House of Representatives adopts a resolution stating that the subject matter of the regulation is properly the subject matter of legislation or is deemed to be unconstitutional, the regulation shall not take effect. This amendment would provide a direct way of remedying executive overreach. It would be speedier and less expensive than a lawsuit, less clumsy than defunding, and less drastic than impeachment. Proposed Amendment #3: For Term Limits We favor an amendment providing for term limits for members of Congress and for federal judges. Our proposal for congressional term limits would impose a lifetime limit, such as 16 years, for service by an individual in Congress. We propose that rather than fixing maximum terms for the House and Senate individually, the amendment provide for a maximum for both chambers combined. For example, a 16-year maximum would allow an individual to serve eight terms in the House of Representatives or five terms in the House of Representatives and one in the Senate or two in the House and two in the Senate. This would be more flexible and give voters more options than many other term limit proposals. When a term limit is reached, the member would finish out his current term before retiring. We also support limiting each federal judge to a single long term (perhaps 16 years) for any one position. 15 When the framers of the Constitution inserted life terms for judges, life expectancy was much shorter than it is today. The Supreme Court justices appointed in our first decade under the Constitution served for an average of eight years; today, the average is close to 25 years, and many judges remain in their positions for 30 years or more. A single long term would preserve judicial independence, while reminding judges that they must eventually return to private life. Because most judges are appointed when they are in their 40s or 50s, the single long term would help prevent judges from continuing after old age prevented them from acting effectively. Proposed Amendment #4: For Ensuring Honest Finances Congress bypasses the annual budget process with a variety of financial actions (e.g., pensions, insurance, earmarks, and tax benefits), relieving it of the responsibility of prioritizing all demands on the federal purse. A new, disciplined budget approach is necessary for us to gain control of our financial affairs. Consequently, we propose an amendment stating that all employee retirement plans of the government of the United States and all insurance-type programs of this government shall be operated on an actuarially sound basis. All future liabilities shall be fully funded in accordance with best accounting practices, similar to those required of private companies. This provision would force Congress to reform retirement and insurance-type programs so they are solvent. The amendment shall also require that targeted individual and corporate income tax credits and deductions be reauthorized annually in the federal budget. Targeted credits and deductions are those that benefit only special interests and are not freely available to members of the general public. This will force Congress to review and prioritize these subsidies annually with all federal expenditures, which is the proper forum for evaluating them. Lastly, the amendment shall require that all federal financial obligations be authorized in the annual budget, without exception. There has been a reform movement underway for many years for the single purpose of enacting a Balanced Budget Amendment. Act 2 supports this effort, and suggests that that our proposed Honest Finances amendment is compatible with a BBA and would likely enhance and improve its implementation. 16 Proposed Amendment #5: For Governing Campaign Finance When the voters in a federal election district are selecting a person to hold federal office, they must assess whether each candidate can capably represent their interests in Washington. However, outside groups often intrude by promoting a candidate to advance their own interests, which may not coincide with the interests of the voters of the district. Voters should be entitled to quiet enjoyment of their election without interference from outside parties, whether those parties are businesses, trade unions, political parties, other organizations, or individuals not resident in the district. Accordingly, we favor an amendment prohibiting the following actions by individuals not resident in the candidate’s district or by organizations regardless of their location: Financial contributions to the candidate. Expenditure of funds for the benefit of the candidate. Other actions promoting a candidacy, including attacks against the candidate’s adversary. The amendment will require that campaign contributions be made directly from a citizen’s personal assets to a candidate’s campaign fund. This will not preclude supplementary public financing on a fair basis from the federal treasury, should Congress determine that private funding is inadequate for a productive election campaign. All funds spent for the benefit of a candidate must come from that candidate’s campaign fund. The amendment shall also provide that the transfer of funds from an outside party to a district resident for the purpose of circumventing this law shall be a felony. Lawfully conducted, free elections are critical in a democracy, as this provision makes clear. Applicable districts shall include congressional districts for election of House members, and states for election of Senators and of Electors in a presidential election. Reforms by Administrative Action If the Independent Branch is created, it would be empowered to apply discipline to federal government activities through administrative actions. Following are a few examples of administrative reforms that might be implemented: 17 For an effective government: 1. Establish procedures to better control federal expenditures by reducing opportunities for improper payments, fraud, and waste; hold departments responsible for failure to observe the rules. 2. Ensure the independence of all federal forecasting activity, blocking any attempts by the president or Congress to influence or interfere with the projections. 3. Define a standard procedure for processing bills in Congress, including: a. A clear statement of the problem to be addressed. b. A definition of the objectives of the bill and its constitutional authority. c. A provision to evaluate the results if the bill is enacted, measuring results against objectives, paying particular attention to cost/benefit analysis. d. After such review, consider changes to or repeal of the act if warranted. 4. Define procedures in Congress to ensure that free and open debate is accorded to all bills. 5. Approve the calendar of Congress, including a standard work week. Require that any session called outside of the regular schedule be approved by the minority party leader. 6. Define performance standards for responses to Freedom of Information Act requests; assess penalties and/or reprimands for failure to meet the standards. For an informed electorate: 1. Establish a procedure allowing challenges of facts claimed in political ads and speeches, with investigation and resolution publicized; retain a public record of all such events. 2. Require that the originator of an ad or speech submit an analysis of its content in categories such as: a. b. c. d. New policy proposal Rebuttal of opponents policy statement Personal attack on opponent Attack on opponent group 18 3. After confirmation of the analysis, this data would be publicized and accumulated during a campaign. The objective of these measures would be to allow candidates to exercise their right to free speech while holding them accountable for statements made. The intent is to publicize the relevant information to allow the public to draw its own conclusions about the style and truthfulness of each candidate. 19 ABOUT THE ACT 2 AUTHOR The author of the Act 2 Reform Blueprint is Frank Keeney, a retired businessman. He attended the University of Washington on an NROTC scholarship, earned membership in Phi Beta Kappa and other academic honorary organizations, and graduated with honors. Before graduation, he passed all four parts of the state CPA examination in one sitting. Keeney’s career included three years on active duty with the US Navy Supply Corps; 22 years working in large companies (including auditing, consulting, sales, financial planning, CFO and Executive Committee roles); and 26 years in small business startups and turnaround situations (as CEO and CFO, including a successful Chapter 11 reorganization with 17 classes of creditors and investors, the sale of a turnaround to American Express and sale of a startup to Qualcomm). Carol and Frank Keeney After his retirement in 2002, Keeney developed a keen interest in government and read extensively on the subject. This ultimately led him to create the Act 2 Reform Blueprint. His broad business background uniquely prepared him to analyze the structural problems in our government and recommend common sense solutions for them. Throughout his career, Keeney sought professional consulting help as needed to supplement his own experience. In developing the Act 2 reform recommendations, he continued this practice, benefiting from the advice of a constitutional scholar and other knowledgeable parties. Keeney also relied on two strategic marketing companies for help in starting the Act 2 movement, developing its website, and market testing a number of public outreach programs. 20 Keeney and his wife Carol live in Colorado, where they enjoy reading, writing, volunteer work, and access to the beautiful Rocky Mountains. They cherish family time with their three children, eleven grandchildren, and two great-grandchildren. Their concern for the state of the nation they are bequeathing to these children motivated them to create Act 2, and they are passionate about it. 21 ACKNOWLEDGEMENTS Keeney gratefully acknowledges the strong support and guidance he received over the years from his wife, Carol, as the ideas in Act 2 evolved. It was truly a team effort. In developing these recommendations for government reform, he also gratefully acknowledges the advice of Robert G. Natelson, a nationally recognized constitutional scholar whose research has been cited repeatedly in Supreme Court opinions in recent years. Keeney also acknowledges the very capable editing and design contribution of Deborah Natelson. Her work brought clarification to the message. 22 A GLORIOUS DAY IN AMERICA! The Act 2 reforms will transform the culture of Washington and deliver a government that: Empowers Congress to block proposed orders and regulations from the executive branch and independent agencies Applies the Rule of Law to federal employees without exception Removes partisanship from law enforcement decisions Operates in an open and transparent manner Responds quickly and fully to requests for information under the Freedom of Information Act Ends the public theater of prolonged investigations that lack the power to uncover the truth Encourages whistle blowers to come forward by giving them increased confidence in the enforcement of the law Actively works to reduce waste, inefficiency, and fraud in government programs, and enforces accountability of officials Respects the rights of citizens and prevents executive and bureaucratic overreach from impinging on these rights Respects the sovereignty of We the People The key Act 2 constitutional amendments are simple in concept yet profound in impact. They preserve all that is right with the country and fix much of what is wrong. They are true to the founding principles of our republic, and we are confident that our founders would strongly endorse the reforms as proper midcourse corrections for the nation. act2blueprint.org
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