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
Strong, reasoned, analysis. However, we need to REALLY shake things up. The comments show a lot of in the box thinking, rehashing old elections and voicing the petty agenda that myopic people possess. The citizens of this country can shake things up by voting out EVERY incumbent in all levels of govt. Then, when the next elections comes, do the same. We will have the UNDIVIDED attention of our elected officials and they will know who is boss.
Gerry mandering is a phrase employed in cathouses to describe guys named Gerry.
rigging data. watch this folks very serious business.
I am strongly opposed to a Constitutional Convention. The constitution we have is the result of a constitutional convention that was called to “tweak” the existing constitution, a confederation of states where the power was with the states. Instead, Alexander Hamilton and those wanting a very strong central government, totally rewrote the Constitution. That constitution originally had no rights for “the people”, all rights were for the government. The rights for the people, got winnowed down to ten based on the argument that some rights were so basic that surely they would be protected without being in the constitution. By what reason are we to believe that those who would make up a new constitution wouldn’t make up one that is worse than what we have? There is a mechanism for fixing what we don’t like. It’s called an amendment.
I agree that gerry-mandering is a serious problem. It’s why there are so many uncontested seats. Rules need to be set up and the maps drawn by non-partisans. As long as those in power have the right to fix to boundaries they will retain their power. There are many ways of assuring the outcome even when using population and geographic continuity so the rules need to be more specific. (It depends on how the area is “sliced”.)
The presidential election should eliminate the electoral college and should be on the basis of popular vote and a majority of 51%. In organizational election its usually 50%+1 but with so many voters, the extra full percent is best (discussion required?). Runoffs are expensive and in the scenario of the top two vote getters in the runoff, it just eliminates all who aren’t Democrats or Republicans. Moving to preferential voting (or instant runoff voting as it is called in the previously posted video) allows each voter to specify more than one candidate in preference order. Vote counting considers all first choice candidates. If there is no 51% winner, the candidate with the least number of votes is eliminated and those votes recast to the voter’s 2nd choice. This process continues until there is a winner. I see this readily working for all single district elections, i.e. within a congressional district or a state. Some discussion is required for how it would work for a multi-district election, i.e. the president. Since total voting population is considered, national coordination of the counting is needed. This is a fundamental change from the states being in charge of who the state supports. It can be seen as a corollary to getting rid of the electoral college.
I believe our low voter turnout is due to people being turned off by the choices. They can vote for one of the elitist candidates, or for someone who has no chance of winning. Those in power, the Democrats and Republicans, make up the rules so that others have no chance.
Media plays a part. When the fairness doctrine requiring all stations to give all candidates equal time was scrapped, the media determines who gets heard. Trump doesn’t have to pay for air time, he gets it for free. Jill Stein and others would love to get that kind of coverage. All stations need to be required to provide equal time for all candidates.
I agree that the Supreme Court needs to be expanded.
No woman, even Hillary Clinton, can be an “ultimate establishment figure” until the ultimate establishment glass ceiling – the Presidency – has been broken.
I would agree with some of these suggestions. Some of them. Therein lies the more fundamental problem.
Americans are seriously divided.
You currently have a third of the Democratic Party supporting an openly Socialist candidate and simultaneously a third of the Republican Party supporting an extreme Populist. I don’t think either of these two voting segments would agree on much of anything. Look at the regular visitors to this blog.
In order to avoid tyranny, the framers created a system explicitly designed to not move forward without broad consensus. There is little consensus. Changing the system they designed into a more democratic one will not remove these deep differences-it will accentuate them and that is assuming any changes could be agreed upon at all.
We are in the midst of a protracted battle for the soul of America.
Who do we want to be as a people?
I pray the answer to this question will, in due time, be resolved peacefully and not end in tyranny.
I fear it may.
Nice editorial. but the real power is money and this is a plutocracy. It probably was since day one in 1776, but, more so now than ever. So how do you make any of this happen. It’s virtually impossible since the billionaires can just hire a thousand fixers to ruin any serious effort.
Now if a billionaire changes his mind and turns on his class, well, that is an exceptional circumstance. And one worth supporting.
“…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.”
Please explain the difference between having less than fifty percent of the popular vote (15 times) and “losing the popular vote altogether” (four times).
Traveling the muddy road. Pine Ridge Indian wants to be a U.S. President.
This is an amazing article, and covers so much.
A first run reading of it gave me no red flags, and it looks like clean reform without kowtowing to some ideology or reservation of power concentrating.
One thing that came to mind is that we should institute Instant Run-off Voting.
This method of collective opinion representation is far superior than what we have now with a simple majority winner take all. With IRV, there still is a single winner, the resulting vote represents the nuanced opinion of all the voters and takes into consideration all the available choices they have to vote on.
It would improve representative quality control immensely.
Scott,
I have said for years that if I ran for president it would be under the “Do Nothing” party. I would promise to keep everything the same to allow people to just exist. We already have enough laws and a govt. that “does” stuff is only making more laws we do not need.
Many Americans don’t want “young idealists” in Congress. It’s important to note why people become more conservative as they get older. It’s because they realize that they have something to protect. They now have property that they have earned, and they want to keep control over it. But the idealists haven’t reached that point. They are still sensitive to the widest perspective that only shows how the “haves” keep on getting more, and the “have-nots” are locked out.
Living in a free society changes that. Once you have really achieved something – even it it doesn’t look like a lot – you see any radical government action as a threat. Moreover, you resent being lumped together with those other “have-nots” who never made the sacrifices you made to get the little that you have.
From that perspective, a government that does as little as possible may be in your comfort zone.
Where is it written that we have a two part system?
I have also thought that there should be a separation between law and state. That is, if you passed the bar exam, you can not run for a political position. Seems dumb to have people that interpret the law creating it too.
The point about the Supreme Court is a good one. However, it refers to the Supreme Court and not the process. The process is compromised due to the structure of the two party system coupled with the fact that the US is an oligarchy and not a democracy.
The point about gerrymandering is a good one. However, it is the result of the two party oligarchical system.
If it were not for the electoral college Al Gore would have been President and the pile of merde would not have risen as high as it did under the three stooges.
To adjust the many secondary problems Americans have to take a bolder leap. Americans must understand that there are two things that are very wrong with the American system of arriving at representatives. Firstly and most importantly there should be no private money at all involved in the funding of campaigns beyond a limited $10.00 per person and corporations, if some lunatic Supreme Court Judge determined they were people, would have to be limited to $10.00 each. Of course there would have to be a point in the rise of a politician where this came into effect. However the government can make available the media based on voter input. The present conditions have less to do with a democracy and much more to do with an oligarchy.
This would loosen up the constraints of the two party system and lead to the second most important change. Two parties is one more than a dictatorship. There should be at the very least four parties: center right and left and far right and left. This has been proven to represent the citizens of democracies better through statistics of voting turnout.
If the circus of superficial and disgusting performances could not take place because it simply could not be funded and the only available time for a candidate to present itself made the issues more important than the buffoonery seen recently, perhaps the issues would be the proper portion of the presentation or most of it. Who cares if the President is awkward or feisty. What is important is his or her positions of what makes the world turn. This has become a soap opera.
If there were four or more parties then more citizens would find representation in government for their perspectives, perspectives that just might be more enlightened if money did not dictate. This would lead to cooperation within the government.
A third and less obvious change would be the distancing of the President from any particular party. We should have either a parliamentary system where the party is elected and the Prime Minister or President is simply the head of that party and therefore of that party, or we should elect a President or King/Queen ,(call a spade a spade), and have he or she unfettered by party doctrine. The Parliamentary system has proven to be the more successful system among the Western Democracies.
Two realities are woefully present, however, we don’t have a democracy because the politicians are bought and sold like so many third world puppets and we don’t have a democracy because there is no real choice.
Of course, in order to change Americans must look forward to solutions to problems and not backwards to sacred documents that although they are presented as carved in stone are as malleable and explicit as mud.
You also forgot allowing only people who pay at least $1 in ncome taxes being allowed to vote. It is stupid letting children vote on family matters.
Good Morning. Mr. Turley, you missed one point – term limits. This would solve one of the problems you addressed – the advantage that incumbents have in elections. Additionally, if our senators and representatives could not perpetually run for re-election they might even have time to get things done. As this are now, they spend most of their time ensuring their re-election.
The Supreme Court is similar to a dog pack. If nine law dogs are not enough then why would 18 be better? There is no issue of work product requirements. These guys and dolls can take off weeks of time each year and the agenda does not suffer. Should they take on more cases? I think not.
A reform would be to limit the number who hail from Harvard and Yale to one. Require all nominees to have tried fifty jury trials in their career and at least ten of them on behalf of criminal defendants on felony cases. Not one of the present nine has defended a human in a criminal felony jury trial. One has tried cases as a judge. None of the nine has tried cases as just a lawyer status (not as a judge). Make them be geographically diverse. Now we have two from California, one from Georgia and the rest speak New Yorkie and hail from New York, Jersie and nearby. They are snots and know nuthin bout birthin babies.
The wealthy always have and always will be able to give rewards to decision makers who serve their needs, and decision makers will always serve the needs of those who provide them with the most support. That inevitably means that decision makers serve the interests of the wealthy and powerful, not the interests of the public. It’s far easier to serve the needs of the wealthy than to help the masses because the masses have widely diverse and complex needs. The wealthy mostly just need money and the freedom to commit scams. Maybe the most important thing we can do is to elect young idealists to Congress rather than old greed-driven codgers. Encourage your brightest kids and grandkids to run for Congress.
Well, I’m 67. All I can say is we need to alter the famous French adage: “Plus ca change, plus c’est la meme chose.” First let’s toughen it up with a touch of Quebecois: “Plus ca change, plus c’est la meme marde.” Then we need to change it to: “Plus ca change, pire ca devient.”