This month, members of Congress have introduced an amendment to the Constitution to reverse a recent ruling by the Supreme Court to allow Congress to regulate corporation engaged in political speech. Constitutional reform is no simple task. However, if we are finally ready to amend the Constitution to achieve political reform, why not make some real changes to our system? The proposed amendment would do little but return us to the status quo before the decision in Citizens United which (in case you have a short memory) was hardly a period of celebrated good government. To paraphrase the Beatles’ song, if “you say you want a revolution,” this is not it but there is a way.
Before we can change the system, we have to change our attitude passivity and collectively declare “enough.” While our leaders control the political branches, they do not control the political process itself. That is controlled by the Constitution, which remains in control of the people, in our control. It is not too much speech or too much money that is draining the life from this Republic. It is a lack of faith in ourselves to force change without the approval or support of our leaders. If we are going to go through the constitutional amendment process, then let’s make it worth our while and achieve real political change in this country.
Below is today’s column on fundamental reforms that could change not just Congress but our political system. I discussed the column on this segment on National Public Radio.
Real political reform should go beyond campaign finance
For decades, political reform in the United States has largely meant campaign finance reform. It is a focus the political mainstream prefers, despite the fact that it is akin to addressing an engine with a design defect by regulating the fuel.
Many of our current problems are either caused or magnified by the stranglehold the two parties have on our political system. Democrats and Republicans, despite their uniformly low popularity with voters, continue to exercise a virtual monopoly, and they have no intention of relinquishing control. The result is that “change” is often limited to one party handing power over to the other party. Like Henry Ford’s customers, who were promised any color car so long as it was black, voters are effectively allowed to pick any candidate they want, so long as he or she is a Democrat or Republican.
Both parties (and the media) reinforce this pathetic notion by continually emphasizing the blue state/red state divide. The fact is that the placement of members on the blue or red team is often arbitrary, with neither side showing consistent principles or values.
The Supreme Court’s recent decision to strike down restrictions on corporate campaign giving has prompted some members of Congress to call for a constitutional amendment to reinstate the restrictions. But that would merely return us to the same status (and corrupted process) of a month ago.
We can reform our flawed system, but we have to think more broadly about the current political failure. Here are a few ideas for change that would matter:
Remove barriers to third parties. Independent and third-party candidates currently face an array of barriers, including registration rules and petition requirements, that should be removed. Moreover, we should require a federally funded electronic forum for qualified federal candidates to post their positions and material for voters. And in races for national office, all candidates on the ballot in the general election should submit to a minimum of three (for Congress) or five (for the presidency) debates that would be funded and made publicly available by the government.
End the practice of gerrymandering. We need a constitutional amendment requiring uniformity in districts to end gerrymandering, in which politicians distort the shape of districts to link pockets of Democratic or Republican voters. Districts should have geographic continuity, and should be established by a standard formula applied by an independent federal agency.
Change the primary system. The principal reason incumbents are returned to power is that voters have little choice in the general election. Incumbents tend to control their primaries, and in many districts electing the candidate of the opposing party is not an option. Under one alternative system that could be mandated in a constitutional amendment for all states, the two top vote-getters would go into the general election regardless of their party. If both of the top candidates are Republican or Democratic, so be it. All primaries would be open to allow voters to cast their ballots for any candidate appearing in the primary.
Abolish the electoral college. The college’s current role in our system is uniformly negative and dysfunctional. It allows someone to be elected president even if his or her opponent gets more popular votes, as happened with George W. Bush in the 2000 election. This leads to serious questions of legitimacy. More important, it helps the two parties control entire states, because in states that are solidly red or blue, the opposing parties and candidates rarely invest much time or money campaigning given that they are clearly not going to get the electoral votes in the end. If there were direct voting for presidents, candidates would have good reason to campaign hard to grab pockets of, say, Democrats in Salt Lake City or Republicans in downstate New York.
Require a majority for presidents to be elected. If no candidate receives more than 50% of the vote, there should be a runoff of the two top vote-getters — as is the custom in most other nations. This would tend to force candidates to reach out to third parties and break up monopoly control of the two parties.
It is unlikely that members of Congress would implement such sweeping changes. But Article V of the Constitution allows citizens to circumvent Congress and call for their own convention “on the application of the legislatures of two-thirds of the several states.” To be successful, a convention would have to be limited to addressing political reforms and not get sidetracked by divisive issues such as same-sex marriage or abortion. Individual states could also lead the way in enacting some of these reforms, such as requiring electoral votes to be divided among candidates according to the popular vote.
The current anger and outcry will mean nothing unless we can harness and channel it toward serious reform. Simply seeking a constitutional amendment on campaign finance reform would do little to truly reform the system. Though it may require a third party to seek such changes, it can be done. We have to accept that the leaders of both parties are unlikely to solve this problem. They are much of the problem. The framers gave us the tools to achieve real change in our system.
Jonathan Turley is a professor of law at George Washington University.
L.A. Times: February 11, 2010