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
PETA Lampoons Duggars In Billboard
http://www.4029tv.com/news/22542850/detail.html
I guess this is truly the other side of the coin……
What no satellite uplink for the Turley blog? A fund raiser seems in order.
Cutting a cable is a treasonable offense in your area. I am betting it was some other blawg that set this up to keep you off of the air. Where is that O’Keefe kid?
Hurry back.
Political reform… only companies seem able to get anything done.
Certainly nothing happens in favor of the people, are you crazy… that can wait at least another 300 years
Sorry, folks. Cox appears to have gone down in our area cutting off our cable and computers. I cannot use anything but my iPhone. I will post as soon as Cox fixes the outage. Do not panic or run to another site. Re-read old postings and pretend they are new postings. After all, most of it has not changed. Better yet, get a bucket truck and fix the probl!
Americans seem quite ignorant about the Article V convention option that the Founders gave us because they anticipated the future loss of confidence in the federal government. Seriously examine the many materials at foavc.org the site of the nonpartisan Friends of the Article V Convention; this is where you can also examine some 750 state applications for a convention. Corrupt Congress refuses to obey the Constitution and give us the first convention because they fear serious reforms obtained through constitutional amendments. The only thing to fear is the status quo and the corrupt, dysfunctional two-party plutocracy.
“The Dumbing Down of America
By Manuel Valenzuela
10/12/06 “Information Clearing House” — — Something is amiss in the great nation called America. Ominous sirens warning this reality can be heard emanating loudly through invisible winds of change circulating our towns and cities. The American people are being strangulated; unbeknownst to the masses they are being transformed and conditioned, becoming the entity the elite have long sought, the culmination of decades of social engineering designed to make of hundreds of millions the slaves of times past and the automatons of the future.
Yet in this present day we find ourselves in, struggling to comprehend a world gone mad, unable to discern neither the direction we are headed nor the inevitable course time is guiding us on. It is because of what has been done to us, and is presently being done to our children, that we fail to comprehend the severity of the road that lies ahead. Quite successful have the elite become in shifting the balance of power from the masses to themselves. How, one might wonder, has this been accomplished, especially when we are the many and they the few?
It is through the dumbing down of America, the methodical destruction and purposeful elimination of the means by which a society educates and enlightens itself. The evisceration of a system that extols accountability and dialogue, opens up the gates of opportunity with the keys of ability, questions authority and seeks debate, creates a wealth of knowledge and illuminates talent and that births an informed citizenry and creates free thinking, analytical minds has been slowly implemented for the last several decades. The dumbing down of America continues into the present, unrelenting and unhindered, squashing the masses for the benefit of the elite.
A giant threat to the system is being disposed of, systematically and without remorse, making of America and its citizens yet one more cog in the engine called capitalistic exploitation of humanity.”
http://www.informationclearinghouse.info/article15280.htm
I support the Prof.’s list … without comment.
Vince Treacy,
I don’t think any of what kohler has been posting is kohler’s opinion. It appears to ALL be cut and paste from here:
http://www.nationalpopularvote.com/pages/answers/m6.php
The Court said “the prohibition is directed to the formation of any combination tending to the increase of political power in the states.…” This is a strong argument for Congressional consent, since the scheme will inevitably increase the power of the signatory states. It is just Kohlers’s opinion that Congressional consent is not needed. That is not binding. There is a powerful argument that an interstate compact as sweeping and extensive in its national impact as this one cannot be effective without Congressional approval. For crying out loud, the Washington-MD-VA interstate compact for subway and busses needed Congressional approval even though it had no impact whatsoever on the political power of any state!
It is just Kohler’s opinion that it will cause more campaigning in the small states. Most candidates will look for the big vote totals in the big states. The small states may be even more remote spectators. No one can predict that outcome.
In sum, it is a nice idea that will not solve any major problems. The election of a minority President has happened only twice. It has no provision for a runoff, so multiple candidates and many more plurality Presidents are likely, without any more success by third parties.
The proposal has no effect on the citizens in the territories and the District who are unrepresented in the national legislature, and its proponents seem unconcerned about that problem.
The proposal does not respond to Turley’s concern about barriers to third parties in state and federal elections. It does not respond to his proposal for changes in state and federal primary elections. It does not respond to gerrymandering.
And, most important, it does not, and cannot, provide for a runoff election for President.
It is just another well-meaning idea.
Under the current system of electing the President, no state requires that a presidential candidate receive anything more than a plurality of the popular votes in order to receive all of the state’s electoral votes.
Not a single legislative bill has been introduced in any state legislature in recent decades (among the more than 100,000 bills that are introduced in every two-year period by the nation’s 7,300 state legislators) proposing to change the existing universal practice of the states to award electoral votes to the candidate who receives a plurality (as opposed to absolute majority) of the votes (statewide or district-wide). There is no evidence of any public sentiment in favor of imposing such a requirement.
If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.
Based on historical evidence, there is far more fragmentation of the vote under the current state-by-state system of electing the President than in elections in which the winner is simply the candidate who receives the most popular votes in the jurisdiction involved.
Under the current state-by-state system of electing the President (in which the candidate who receives a plurality of the popular vote wins all of the state’s electoral votes), minor-party candidates have significantly affected the outcome in six (40%) of the 15 presidential elections in the past 60 years (namely the 1948, 1968, 1980, 1992, 1996, and 2000 presidential elections). The reason that the current system has encouraged so many minor-party candidates and so much fragmentation of the vote is that a presidential candidate with no hope of winning a plurality of the votes nationwide has 51 separate opportunities to shop around for particular states where he can affect electoral votes or where he might win outright. Thus, under the current system, segregationists such as Strom Thurmond (1948) or George Wallace (1968) won electoral votes in numerous Southern states, although they had no chance of receiving the most popular votes nationwide. In addition, candidates such as John Anderson (1980), Ross Perot (1992 and 1996), and Ralph Nader (2000) did not win a plurality of the popular vote in any state, but managed to affect the outcome by switching electoral votes in numerous particular states.
Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.
The U.S. Constitution provides:
“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”
Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.
“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”
Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:
“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”
The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power—much less federal supremacy—in the area of awarding of electoral votes in the first place.
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, 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.
In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.
As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states.
The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.
Under the current system of electing the President, presidential candidates concentrate their attention on a handful of closely divided “battleground” states. 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.
Bob Esq.,
“With the correct wording, Congress can overturn SCOTUS and limit its appellate jurisdiction to question same.”
I asked you the is same question at another thread, but you never answered.
Has this ever been done before? The idea scares the hell out of me. Wouldn’t it completely remove the checks and balances from our system of government?
I was under the impression that diversity jurisdiction was to prevent bias? In addition, if Congress was to create a statute that limited appeal to only the district court (assuming you’re not suggesting that the right of appeal be eliminated), wouldn’t that make the circuit court, or even the district court (depending on how the legislation you suggest was worded), the “supreme court”.
Article III, Section 1 “The judicial power of the United States, shall be vested in one Supreme Court, [AND] in such inferior courts as the Congress may from time to time ordain and establish.” If the word OR was there instead, I might be able to see it.
I see a significant problem with Congress thinking that they can eliminate SCOTUS from having either original or appelate jurisdiction. I think that sort of interpretation is a direct result of Marbury. The purpose of the exception clause of Article III, Section 2 was to permit Congress to assign the Supreme Court with original jurisdiction in some cases where expediency and nationwide controlling authority were deemed necessary. I disagree with the Marshall Court’s interpretation of that clause. (But I’m not tasked with also riding circuit)
Ah, yes, a constitutional amendment.
I seem to vaguely remember one such which was proposed and never passed. It was a quaint proposition – to wit:
“equal rights under any federal, state, or local law could not be denied on account of sex”
I believe it was called the Equal Rights Amendment. Anyone else here old enough to remember that fight?
The only way to get money, which seems to be the problem, out of politics is to ban all television campaign advertising as they do in some countries in Europe. We did without it for 200 plus years and I, for one, could do without it again.
http://www.epra.org/content/english/press/papers/Political_advertising_final-3.pdf
Kohler’ national popular vote idea is a response to the problem of a candidate’s winning of the electoral vote while losing the popular vote. This has happened only twice in over 200 years.
Kohler does not respond to JT’s request for a runoff election between the top two vote getters. The national popular vote bill may possibly work in a two-person election, but not in a three or four person race (like 1860), where no one gets 51 percent of the vote. What is to stop five, six or seven candidates from running and siphoning off votes?
The supporters are asking voters in a red State like Wyoming to agree in advance to assign all their electoral votes to a candidate who might have received a tiny minority of its votes, even though that candidate got only a plurality of the national popular vote.
Kohler admits that the 12 smallest states have only 11 million people, but, because of the two electoral-vote bonus that each state receives, they have 40 electoral votes. Ohio has 11 million people and has the same 20 electoral votes.
Kohler says this two-vote bonus is an entirely illusory advantage to the small states. But the small states think their advantage is important and are not likely to go for this change, and the big states are unlikely to give up winner-take-all.
Since the bill would have to be an interstate compact because of its direct impact on the federal governmental system, Congress would have to give its consent under the Constitution, Article I, section 10. That would give Congress, and the states acting through their representatives, a chance to kill it.
Candidates would never campaign in the small states. They would go where the votes are. An extensive campaign in a big state could yield hundreds of thousands, maybe millions, of votes. A similar effort in Wyoming would come up dry, with fewer than 10,000 votes.
The national popular vote idea is another nice idea, like Prohibition, but it is no panacea.
That all being said, I see our US Constitution as a fairly sacred document, and would rather state reform be pushed rather than amending the US Constitution.
Professor Turley,
Here in Indiana, our Secretary of State, Todd Rokita, is trying to end gerrymandering. He not only drew up two maps for much less than what the last re-districting cost, but set out guidelines such as:
Two state house districts equal one state senate district.
Borders of districts should follow natural boundaries and county borders as much as possible, rather than creating new borders.
Unfortunately, Democrats in the state have accused him of doing this for political gain. And it is true, that in a very Republican state such as Indiana, they’d gain some seats. But if that’s how the chips fall, than so be it. It confuses me to no end that the state Senate has a 33-17 GOP majority, and the state house has something like a 51-49 Democrat majority, from the same state. It just makes no sense.
Since when do you need a constitutional amendment to overturn the Supreme Court?
With the correct wording, Congress can overturn SCOTUS and limit its appellate jurisdiction to question same.