Below is my Sunday column yesterday in the Washington Post on reforming our political system. We are certainly, as the Chinese curse says, “living in interesting times.” We seem to be in the midst of an American revolution where citizens have arisen in collective disgust of the establishment and the status quo. For years, citizens have objected to a political system that is dysfunctional and detached. The two parties have largely ignored these objections and many have objected to this “doupoly” on power. For many, answer of the two parties to the American people seems to be the same as Henry Ford to customers of the Model T Ford: “you can have any color so long as it is black.” In the United States, you can have any party so long as it is red or blue; Republican or Democrat. Yet, in 2016, the public has responded with a deafening rejection of the establishment. The most obvious is Donald Trump who is the perfect personification of an angry electorate. On the democratic side, a 74-year-old Democratic Socialist has rocked the Democratic party, which overtly rigged a primary system to guarantee the selection of the ultimate establishment figure: Hillary Clinton. However, we seem to go this cathartic exercise every four years rather than seek some changes to break down the insularity of government. There is another way. Instead of just choosing some personality that matches our angry politics, we can really change the system . . . for the better. The Framers gave the public the power to solve our own problems, including the ability to circumvent Congress with a constitutional convention. We have the anger. The question is whether we have the answer.
Below is the column. There are a host of other changes that can be made to improve the system, including many that can be down without a constitutional amendment. However, there is a value in focusing on a few basics that could have a transformative effect on the respective branches of government.
Legal scholar says we need to change the system, not just who’s in charge
America is fuming. In Super Tuesday exit polls, as many as 95 percent of Republicans and 65 percent of Democrats said they were “angry” or “dissatisfied” with the federal government. I’ve heard the same when speaking to audiences across the country. Conservatives and liberals alike talk about their frustrations with a dysfunctional political system that is unresponsive to their needs and disconnected from their lives.
Voters say they want a revolution. But that’s going to take more than electing personalities that channel our angry politics. If we want real change, we need to look at fundamental reforms to all three branches of our government.
First, we need to join most of the rest of the world’s democracies in moving to direct, majority-based elections of our presidents. In a late-January Washington Post-ABC News poll, 69 percent of respondents said they were “very anxious” or “somewhat anxious” about the idea of a President Donald Trump, and 51 percent said the same about a President Hillary Clinton. Yet outside a handful of swing states, most voters don’t see themselves as having much influence on the outcome of the November election. And they’re right: It’s basically impossible for Democrats to lose deep-blue states such as California or for Republicans to lose deep-red ones such as Idaho. It doesn’t help that a president can win with less than 50 percent of the popular vote, as has happened with 15 previous presidents, or by losing the popular vote altogether, as has happened four times.
We wisely got rid of the election of senators by state legislators with the enactment of the 17th Amendment in 1913. We’re overdue to abolish the electoral college. The United States should be led by a president who can garner a simple majority of votes. And if no one reaches that threshold in the general election, we should require a runoff between the two leading candidates.
Despite the best efforts of the tea party and other insurgent movements, congressional incumbents maintain a death grip on their seats. Ninety-five percent of sitting congressmen and 82 percent of senators up for reelection won in 2014. They have an enormous fundraising advantage , but even more important, they are protected by how district lines are drawn.
To give voters real choices, we need a constitutional amendment barring gerrymandering of congressional districts and requiring that districts be based solely on population numbers and geographic continuity. Then we should alter our elections to allow the top two vote-getters in the primaries to run against each other in the general election, even if they’re from the same party, from a third party or are independent. While voters in Sugar Land, Tex., still might elect Republicans and voters in Chicago still might elect Democrats, they might elect different Republicans or Democrats. Moreover, in choosing between candidates of an opposing party, voters from the minority party in that district might favor a more moderate and ultimately more representative choice.
We need to finally end the absurd politics of the Supreme Court, which concentrates too much power in the hands of too few justices. With such a small court, one justice can have enormous influence on rulings. That’s why the arguments in so many cases, including the Texas abortion case heard this past week, are pitched to a single swing justice. It’s why confirmations have become so traumatic, as the deadlock over the replacement of Justice Antonin Scalia vividly shows.
A larger Supreme Court would diminish the power of individual justices and increase the chances that the best legal minds could get confirmed. I’ve advocated for the expansion of the court to 19 members. That’s about the average size of a U.S. circuit court and in line with other major democracies. (Germany’s high court has 16 members, Japan’s has 15, and Britain’s has 12.)
The current size of the U.S. Supreme Court is arbitrary, related to the number of federal circuits in the late 1800s. The Constitution leaves it to Congress to determine how many justices the court needs. So we could expand through legislation rather than constitutional amendment. I’d propose ramping up gradually, preventing any president from appointing more than two justices to the new seats. And while we’re at it, we should pass legislation that allows cameras in the Supreme Court, so citizens can watch how the justices address cases that affect their lives and monitor the justices’ competence. (Advancing incapacity due to age or illness is a recurring problem on the court.)
Americans are neither irrational nor apathetic. They’re alienated, because all the branches of the U.S. government have insulated themselves from the public to a dangerous degree. Rather than treating voters like barbarians at the gate, the government should let them in and allow them a more direct and meaningful role. Now that would be a revolution worth watching.
Washington Post March 6, 2016