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.
Executive branch
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.
Legislative branch
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.
Judicial branch
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.
Twitter: @JonathanTurley
Washington Post March 6, 2016
Abandon the Republic? NO!!!! I do not want to see a tyranny of the majority situation. A candidate could ignore the least populous states. We would be ruled by California, New York, Ohio, Illinois, Texas, Florida, Pennsylvania, Michigan, Georgia, North Carolina,, [54% of the population] The top fifteen have 2/3 of the population. Forget about the heart of America. Flyover country might as well be a desert.
Isn’t that the same as winner take all where votes against are counted for? The present system is fascist enough without making it worse. To make EC work you would have to open up the ballot to all candidates and an open ballot including write in’s and an open ballot does not exist. EC without the accompanying changes sounds more than suspiciously like a sugar coated version of fascist economics applied to voting. Furthermore there is no None of the Above selection so you are still disenfranchising what now is 46% of the voters who have turned their backs on a rigged and there fore meaningless waste of time
I vote no to left wing fascism ….
Great points! Are you aware of the National Popular Vote Interstate Compact? It’s already happening!
https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact
If enough US states cast their electoral college votes to the winner of the US national popular vote, and those states who join the pact to cast EC votes this way total more than 270 votes, then any candidate that wins the national popular vote will win those states, and therefore will be elected president.
This gives every American a reason to vote — even Republicans in blue states and Democrats in red states. It’ll be an end to the “swing states” effect.
We don’t need a Constitutional amendment to make this happen. We don’t need every state to pass it. We just need enough states to exceed 50% of the EC votes. This is already the law in states totaling 165 EC votes, and it’s pending in the current legislative session in states totaling another 104 EC votes. A potential total of 269 EC votes, if they all pass it.
Once the total EC votes of states who have joined the compact reaches 270, all those states who have joined the compact have already agreed to cast EC votes according to the winner of the national popular vote.
@David2575
Thank you, David!!! Nice to see you commenting again!
Squeeky Fromm
Girl Reporter
There is no two party system. There is a single party coalition of left wing advocates ranging from their right wing the Republicans to their left wing the Secular Progressives and worse. Using their center as if it were THE center. Only left is invited to the party,. 46% of the nation is disenfranchised. Time for a counter revolution. Military are you listening. When will you up hold your oath of office?
Olly writes, “Steve, The people’s voice in government is the House of Representatives; the state’s voice in government is the Senate. The state legislatures selected the 2 senators to represent their state’s interests in the federal government. The The 10th amendment states: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’
The 17th amendment effectively created one house in Congress with 535 members selected by the people thus leaving the states without the the choice of selecting who will look out for the interests of the state. The people no longer look to the state governments but rather the federal government to look after their needs. The power will flow to whatever entity the people ignorantly support and that is the federal government.
The 17th amendment disenfranchised the states from the federal government by removing their power of selecting Senators and the consequence has been to centralize power in the federal government. The corruption this amendment was supposed eliminate actually made it easier for those wanting to buy government. Not only has power been centralized in Washington D.C., so has the corrupting influence. We decry the oligarchy but the 17th amendment and an ignorant electorate keep feeding it.”
This is a fascinating argument you make, giving me pause to look (albeit briefly) at the reasoning behind Article 1, section 3, clauses 1 and 2, to find why state legislatures were authorized to elect US Senators. Having done so, I don’t see the 17th Amendment’s effects quite the way you do, and here’s why:
Wikipedia (yeah, I know, but time’s short) gives the following bases for senatorial elections by state legislatures in Article 1: 1) “the election of senators by the states reassured Anti-federalists that there would be some protection against the swallowing up of states and their powers by the federal government, providing a check on the power of the federal government . . .”; and, 2) “the longer terms and avoidance of popular election turned the Senate into a body that could “temper” the populism of the House. . . .”
Even before the 17th Amendment’s mandate that the two US Senators from each state be elected directly by the people of that state rather than by the state’s legislature, it was the people through their elected state representative that elected the US Senators from that state.
How anti-federalists (nowadays, states’ rights advocates of varying degrees (I think Thomas Jefferson would have been a mellow agrerian liberal were he alive today) could believe there is less “protection against swallowing up of states and their powers by the federal government” with a direct vote on the state’s two US Senators by the people of each state rather than by state congressional representatives who may have ulterior motives, e.g., political and pecuniary aspirations, doesn’t strike me as reasonable.
Likewise, I believe the temperament of the House of Representatives’ populism in the so-called collegiate atmosphere in the Senate hasn’t been altered by the 17th Amendment at all because the Constitution inherently gives the US Senate the last word on many influential decisions, including, most importantly, impeachment trials, consent to US Ambassadors, ratification of treaties, of Supreme Court nominees, and Executive officers, that are denied the Animal House next door.
If one believes in a direct vote as always better than a vote by career politicians influenced by lobbyists’ bribes of a long-term post in some bank or corporation after office, it seems to me that the 17th Amendment is a useful change to our foundational law.
Sidebar: I think the Commerce Clause’s use in federal legislation is more the culprit of federal overreach. I’d guess that nearly every law we see beings used to infiltrate 10th Amendment territory was enacted under the Commerce Clause. This is due to what I consider the Supreme Court’s radical view that nearly anything that substantially affects interstate commerce gives Congress authority to legislate through the Commerce Commerce Clause.
There are some good federal laws using the Commerce Clause, e.g., the Environmental Protection Act, which substantially affects interstate commerce, I suppose, and some bad ones, e.g., regulating a pot plant in my back yard somehow substantially affects interstate commerce if everyone grew a pot plant in his or her back yard (the aggregation principle). There’s your overreach, swallowing the 10th Amendment and rolling over Jefferson in his grave.
Like Ian Shoales, I gotta go.
Gee Squeeky, I could post the EXACT same translation of your last post. Do you get irony?
Thanks for playing. See you on the next one.
@PhillyT
Let me translate what you just said,
“I don’t like what you said because it makes me feel bad about me, sooo, I am going to impugn you and your sources! That way, I can keep on feeling really good about myself while all those feral blacks are killing each other! Because there ain’t no way in hell that I am going to take any responsibility for enabling this stuff!”
In the meantime, I bet you, and other white liberals avoid those black neighborhoods like the plague.
Squeeky Fromm
Girl Reporter
Oh Squeeky, Your “facts” about black women and marriage are wrong, disproven, and just plain racist.
You seem like a smart and clever person but you have a terrible blind spot here.
Please go read some actual history. I’m not talking about the cr*p you get off brietbart, redstate, or a bircher website, or wherever you’re gathering this horrible nonsense.
Like most regressives you seem to be missing most of your empathy gene. That song about “’til it happens to you” is one you should go listen to. Try Bill Maher’s funny take on the empathy gap. It might help. I doubt it, but it might.
https://youtu.be/BVwFmdipfZg
@PhillyT
You said, “So interesting what you project onto Democrats, liberals and progressives. I don’t know a single one who believes any of the things you say.”
Well, of course you don’t. Because you can’t get the Type2 Liberals above to look at reality, and take responsibility for enabling the crap that goes on in the black community. Liberals and progressives are too darn busy making up excuses for what is unexcusable.
Let’s see, if the little feral blacks don’t want to learn anything in school, it is because the school building isn’t painted. Or, the teachers aren’t being paid enough. Or, it’s a residual of Jim Crow, or post traumatic slavery syndrome, or they are starving and can’t concentrate. It’s every excuse in the world except that they are being raised by black welfare ho’s that only had them to get some benefits, and couldn’t give a hoot about the kids, so that the kids run wild like little animals. No matter what happens, you guys just can’t seem to blame the blacks themselves for the crap they do.
If some black welfare ho pops out illegitimate kids #2, #3, and #4 with different baby daddies— what do liberals and progressives say? Zip, nada, nothing. (Because that is more potential Democratic Party voters!) Maybe we get some silly pablum about “Oh, we need some more sex education!” BeeEss again If a black chick has one kid out of wedlock, the idiot knows where babies come from. And the welfare benefits!
That’s just one example. Notice how in your comment above you blame racism??? Absurd. Back in the 1940’s, which had a whole lot more institutionalized racism, about 86% of blacks were getting married. In spite of unpainted school buildings, and no school breakfasts, White Privilege, or post traumatic slavery syndrome. What changed in the intervening years???
DEMOCRATS STARTED PAYING BLACK WELFARE HO’S TO HAVE ILLEGITIMATE KIDS IN EXCHANGE FOR VOTES!!!. (I made it ALLCAPS and BOLD so you could hear it better.)
You guys destroyed the black community, and chased the fathers out of their kids lives, and while some conservatives say your mistake was “well-intentioned,” I say BeeEss! The Democratic Party leadership knew exactly what it was doing. It was buying votes. And the rank and file Democrats are too darn busy stroking themselves to give a hoot, All you guys know how to do is call anybody who points the crap out, “Racisss!”
Go watch you a couple of days worth of Tommy Sotomayor youtube videos and get a clearer picture of what you accomplished. If you have any conscience at all, you ought to be ashamed of yourself for supporting that crap! IMHO. If you really have a breakthrough, you might realize that you have met the “Racists”, and it is you guys.
Squeeky Fromm
Girl Reporter
Very well said, Squeeky. You are a very well informed person.
Jonathan and others, what do you think of Sanford Levinson’s proposal for a people’s constitutional assembly outside of Article 5, with ratification in a national referendum, as a pathway to get changes which enhance the system?
http://www.thenationalreferendum.org/sanford-levinsons-proposal-for-a-peoples-constitutional-convention/
The Constitution gives the states the right to administer elections. There is no guarantee of success if a national referendum were held because there is no consensus on which aspects of the electoral process should be changed or how to do it. In order to be successful we must develop that consensus around the problems and solutions. We are far more likely to succeed at reforming the system at the state level than at the federal level. That is the path that the NRA took and you can’t find a greater (if evil) success story than theirs. We are trying to get this discussion and organization going. You can find us at unrigging america on wordpress and Facebook. We hope you will lend your talents to our effort.
The recent ruling of the US Supreme Court shows how critical it is for the securing of the right of individuals to petition government for the redress of a grievance. There is no constitutional law which restricts such petitioning to state legislatures. Searching redress through courts is allowed hence a petition may end up on the docket of the Supreme Court. That must never be changed.
With regards to the continuous shift of power from states to the Federal Government. That is overwhelmingly due to the numerous wars directed by the Federal Government throughout our history.
Dieter writes, “With regards to the continuous shift of power from states to the Federal Government. That is overwhelmingly due to the numerous wars directed by the Federal Government throughout our history.”
Radical judicial opinions of congressional power emanating from the Commerce Clause, which in turn has reduced the 10th Amendment to a vestigial appendage, hasn’t been of much help either.