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
“They were mainly men until one of your favorites,Michelle Bachmann,came along.”
There you go painting with that broad brush again, SM.
Behind most of those pro-life men was a pro-life woman supporting them. I’m pro-life because I believe that life begins at conception. I have no problem with abortion in the case of rape or when the health of the mother is at risk. I believe in the natural right of self-defense. That’s what permits me to form that opinion. I have no problem with contraception. I think it is a responsible choice.
The Founding Fathers said in the U.S. Constitution (only after debating among 60 ballots for choosing a method): “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.
In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
In 1789, in the nation’s first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.
The people vote for President now in all 50 states and have done so in most states for 200 years.
The “mob” in a handful of closely divided battleground states, such as Florida, get disproportionate attention from presidential candidates, while the “mobs” of the vast majority of states are ignored. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided “battleground” states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 “battleground” states.
The current system does not provide some kind of check on the “mobs.” There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector’s own political party. The electors are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.
rcampbell:
“The thought process of the Founders in setting up the Electoral College seems consistent with the establishment of the Senate, with equal representation for each state versus population-related House seats.”
wasn’t it also a final road block for the possibility of a truly evil man (a Hitler or Stalin) from taking power? The electoral college could, in the event of the election of a very bad man, offer an escape.
I am glad to see your list.
I have had a lifelong hobby of studying our national institutions. I became interested in them when I listened to veterans returning from WWII. They talked endlessly about what they had seen and done, and they talked about the future. They talked about jobs, education, keeping us safe, etc. It was fascinating for me and I was hooked. As a consequence I have followed the perennial calls for change. Someone is always unhappy with one part of our system. But few people put forward ideas for really changing it. But that is a lesson of history. There are many more problem identifiers than problem solvers.
I have always enjoyed your appearances on television. I have always thought you were a clear thinker.
I agree with your proposals, but I think more changes are needed. And I think your apples of wisdom are still too close to the tree. Madison, Hamilton, and Washington warned us about evil men, or as Washington put it, “cunning, ambitious, and unprincipled,” men. I do not see how your changes would have prevented the problems we talk about every day, and I don’t think that your changes would have prevented George W. Bush from invading Iraq. Granted, your ideas might have kept him out of office.
So my observation is that we are far, far away from implementing the kind of government that the Framers wanted, and that they tried to implement, but failed. As I read the Federalist essays, the most important design principle of the Framers was to keep evil men from getting power, but if they should, to keep them from doing harm. They had the right idea, it is the only way a democracy can work, but their design didn’t work.
I have gone on too long, sorry.
I published a diary about this piece over at Dkos to, hopefully, get some more exposure for this. Political reform through amendment is something we should be seriously discussing. Fantastic post and great comments.
Duh You are right about that, but I worked in a legislature and most of the people who were anti choice and held fundmentalist views were outsate legislators. They were mainly men until one of your favorites,Michelle Bachmann,came along.
No SM. I wouldn’t choose to paint with such a broad brush. I don’t consider those whose political ideals I disagree with to be “kooks”. We all have varied backgrounds that shape our ideals. I think the opinion of the farmer is just as important as that of the lawyer when it comes to creating the laws.
There is no answer to repair our system. The current Supreme Court is so stacked with neoconservative ideologues that we are pretty much lost as their recent decision to allow corporations to decide elections demonstrates.
We will never get better representatives because corporations and big money pick them. The SCOTUS has proved itself to be a corrupt arm of the right wing, as we saw in the 2000 election fiasco. There is no more representative democracy in this country. Period.
Unless of course you happen to be a corporation.
Being an American now is like riding a really rickety roller coaster. All you can do is grab the sides, grit your teeth and hang on for dear life hoping the damn thing doesn’t derail.
The urban legislators tend to include women and minorities so to you ,duh, I guess they would be considered “kooks”.
Mike S
“Would you think about the problem the two party system causes by making parties into unwieldy coalitions of people whose beliefs are often antithetical and in doing so the voters ultimately become even more confused about what they’re voting for”?
Mike, I’m not suggesting the two-party system is great, just better than having to deal with fluid coalitions. It’s been painful to watch the manuveurings and pandering and ultimately the pay-offs to the coalitions of one (Nelson, Landieu, Lincoln) during the health care debate. Imagine the chaos of adding the narrow interests of a Right-to-Life Party member and/or a Green Party member and/or a Teabagger member, etc., makes me dizzy.
George Obama did not run on “hate and fear”. He ran on “hope and change”. That is what people were voting for. The ” hate and fear” people were Palin and McCain. The majority voted for what they thought was “hope and change”.
The congressional district method of awarding electoral votes (currently used in Maine and Nebraska) would not help make every vote matter. In NC, for example, there are only 4 of the 13 congressional districts that would be close enough to get any attention from presidential candidates. A smaller fraction of the country’s population lives in competitive congressional districts (about 12%) than in the current battleground states (about 30%) that now get overwhelming attention , while two-thirds of the states are ignored Also, a second-place candidate could still win the White House without winning the national popular vote.
When presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, under the state-by-state winner-take-all rules, the big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.
Likewise, under a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.
Another way to look at this is that there are approximately 300 million Americans. The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities is only 19% of the population of the United States. Even if one makes the far-fetched assumption that a candidate could win 100% of the votes in the nation’s top five cities, he would only have won 6% of the national vote.
Further evidence of the way a nationwide presidential campaign would be run comes from the way that national advertisers conduct nationwide sales campaigns. National advertisers seek out customers in small, medium, and large towns of every small, medium, and large state. National advertisers do not advertise only in big cities. Instead, they go after every single possible customer, regardless of where the customer is located. National advertisers do not write off Indiana or Illinois merely because their competitor has an 8% lead in sales in those states. And, a national advertiser with an 8%-edge over its competitor does not stop trying to make additional sales in Indiana or Illinois merely because they are in the lead.
The 11 most populous states contain 56% of the population of the United States and a candidate would win the Presidency if 100% of the voters in these 11 states voted for one candidate. However, if anyone is concerned about the this theoretical possibility, it should be pointed out that, under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in these same 11 states — that is, a mere 26% of the nation’s votes.
Of course, the political reality is that the 11 largest states rarely act in concert on any political question. In terms of recent presidential elections, the 11 largest states include five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.
Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched. Indeed, among the 11 most populous states, the highest levels of popular support were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic).
In addition, the margins generated by the nation’s largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas — 1,691,267 Republican
* New York — 1,192,436 Democratic
* Georgia — 544,634 Republican
* North Carolina — 426,778 Republican
* Illinois — 513,342 Democratic
* California — 1,023,560 Democratic
* New Jersey — 211,826 Democratic
To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 votes for Bush in 2004.
The small states are the most disadvantaged of all under the current system of electing the President. Political clout comes from being a closely divided battleground state, not the two-vote bonus.
Small states are almost invariably non-competitive, and ignored, in presidential elections. Only 1 of the 13 smallest states are battleground states (and only 5 of the 25 smallest states are battlegrounds).
Of the 13 smallest states, Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska regularly vote Republican, and Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC regularly vote Democratic. These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has “only” 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.
The concept of a national popular vote for President is far from being politically “radioactive” in small states, because the small states recognize they are the most disadvantaged group of states under the current system.
In small states, the National Popular Vote bill already has been approved by eight state legislative chambers, including one house in Delaware and Maine and both houses in Hawaii, Rhode Island, and Vermont. It has been enacted by Hawaii.
I think Vince has a good point. As long as the people want to be victims, they will. As long as they continue to gravitate towards candidates who espouse hate and fear, that is the government we’ll have.
Third parties would be (part of) a big improvement. Certianly the two party system has become little more than two sides of the same corporate coin.
I also agree with Buddha about legal reform. If corporations are going to enjoy free speech rights, their C.E.O.’s and corporate boards should be subject to the same criminal charges, prosecution, and sentences as anyone else. No special privileges, no plausable deniability, and no more corporate structure to hide behind. Personal accountability. No more cost benifit analysis before people are killed or the environment is raped without regard for the law — easier to pay the fine and deal with it later, right?
The Founding Fathers said in the U.S. Constitution (only after debating among 60 ballots for choosing a method): “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
The U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).
Every vote, everywhere, would be politically relevant and equal in presidential elections. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.
The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).
The Constitution gives every state the power to allocate its electoral votes for president, as well as to change state law on how those votes are awarded.
The bill is currently endorsed by over 1,707 state legislators (in 48 states) who have sponsored and/or cast recorded votes in favor of the bill.
In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado– 68%, Iowa –75%, Michigan– 73%, Missouri– 70%, New Hampshire– 69%, Nevada– 72%, New Mexico– 76%, North Carolina– 74%, Ohio– 70%, Pennsylvania — 78%, Virginia — 74%, and Wisconsin — 71%; in smaller states (3 to 5 electoral votes): Delaware –75%, Maine — 77%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Rhode Island — 74%, and Vermont — 75%; in Southern and border states: Arkansas –80%, Kentucky — 80%, Mississippi –77%, Missouri — 70%, North Carolina — 74%, and Virginia — 74%; and in other states polled: California — 70%, Connecticut — 74% , Massachusetts — 73%, Minnesota – 75%, New York — 79%, Washington — 77%, and West Virginia- 81%. Support is strong in every partisan and demographic group surveyed.
The National Popular Vote bill has passed 29 state legislative chambers, in 19 small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes — 23% of the 270 necessary to bring the law into effect.
See http://www.NationalPopularVote.com
Under the current system of electing the President, presidential candidates concentrate their attention on a handful of closely divided “battleground” states. New Hampshire has been the only small state among them. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided “battleground” states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 “battleground” states. Similarly, in 2004, candidates concentrated over two-thirds of their money and campaign visits in five states and over 99% of their money in 16 states.
Two-thirds of the states and people have been merely spectators to the presidential elections. Candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. The reason for this is the state-by-state winner-take-all rule enacted by 48 states, under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state.
Another shortcoming of the current system is that a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in one of every 14 presidential elections.
In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected (and, of course, in 2000, did elect) a presidential candidate who lost the popular vote nationwide.
I think the electoral college would work much better if there was uniformity as to how the votes were cast by each state. In some states, the electors can vote however they wish. In others, the electors vote with the majority of the state. I doubt the Framers had such disparity in mind.
I think the electors should be representative of their district. I don’t think the way a majority of the state votes should result in all the electors voting with the majority. That kind of eliminates the purpose of having all those electors.