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
I have a completely different take than Professor Turley. Yes, we need an Article V Constitutional Convention of the States, but not to bolster democracy, but to restore the original principles which divided powers. The 17th Amendment was a huge mistake and needs to be repealed. It stripped the States of their power in Congress. The 16th Amendment also needs to be repealed. The federal government should get its funding from the States and not the other way around. There needs to be a new Amendment acknowledging God the way the Declaration of Independence does, which blocks atheists and secularists from forming a monopoly in government that ends up disenfranchising the religious in society. The electoral college does not need to be done away with. In fact, we need to strengthen it with a weighted voting system and get rid of the concept of universal and equal suffrage. Government should be done with the consent of the governed, but pure democracy never ends up achieving that because most people do not know how to run government, nor do they understand the principles that would make them happy in society. They cast votes that cancel out the votes of those who are wiser and really do know the better candidates. The further we move toward democracy, the more it will exacerbate the problems we are experiencing. We need to embrace a Constitutional Republic and the principles that make this form of representative government work better than a democracy.
“the need for an informed and engaged electorate.”
I hear this a lot, and I wonder about it. This is not the late 18th century. The country is complicated, and the federal government is involved in so many more things than it was 100 years ago, never mind 200 years ago. it takes a full-time job to become an expert on any one issue, and even the experts, when they agree on the cause of a problem, don’t often agree on it’s solution. So just how is the average Joe supposed to sufficiently inform himself? Perhaps after dad or mom come home from work they should forgo interacting with their kids so they can study the issues. This is not reality. Seems to me they could never be truly informed. So i ask, what do you mean by informed and engaged?
Paul – that’s a great idea. It would keep representatives more answerable to the people than their lobbyists.
It would be 82% of that 33% won reelection.
“Conservatives and liberals alike talk about their frustrations with a dysfunctional political system that is unresponsive to their needs and disconnected from their lives.”
Then stop voting for people you know are liars, cheats, and criminals because you just want to defeat your political opponent. Everyone who votes for Hillary Clinton and then complains about the Koch Brothers’ special interests, unaccountability in government, or lying politicians are complete hypocrites.
Great article, Professor Turley, I would add that, in addition to increasing the size of the Supreme Court and limiting how many appointments a President can make each term, we need to prevent the SC from legislating from the bench. Their job is to decide cases according to the Constitution and federal law as it stands. There is already a means to update the Constitution, and it’s not by the whimsical decree of a single swing judge or a coalition of judges. It’s the Amendment Process. If SC judges would stop legislating from the bench, then there wouldn’t be this mass hysteria on BOTH sides of the duopoly every time a seat needs to be filled. Republicans, Libertarians, Independents, and Democrats are all perfectly capable of coming to the same conclusion on Constitutionality if they would put their personal politics aside.
Democrats are currently howling about Republican efforts to block the latest appointment, but they have very short memories. They did the same thing under Bush.
A fuzzy detail in the Professor’s missive– he wrote
“Ninety-five percent of sitting congressmen and 82 percent of senators up for reelection won in 2014.”
Senators are elected for 6 yr terms. How can 82% of Senators elected in 2014 be up for reelection 2 yrs later?
Renegade – 1/3 of the Senate is up for election/re-election every 2 years.
Yes..but that is only 33% every two yrs….
Renegade – “Ninety-five percent of sitting congressmen and 82 percent of senators up for reelection won in 2014.”
The sentence is correct. He is only talking about the 1/3 up for re-election in 2014, not all Senators.
And how could 82% have been elected in 2014
All it takes is an Amendment.
All that takes is sufficient interest
All that takes is an initiative vote.
When a State voted to propose something and are joined by others…
There isn’t sufficient intereest. Nor peoplethat can read these words and understand them
I disagree with the idea of direct popular vote for Presidents. It should not be sufficient to dominate the vote in a few highly populated urban areas while demonstrating no support in other areas. A successful President should demonstrate an ability to appeal to a broad range of geographic regions. The problem is a question of granularity. The problems are the 3,000 pound gorillas. Some states are too big. California is obscene, and obliterates any semblance of regional representation. California probably has the largest Republican population in the country, but due to its size and party allocation, that large Republican population is represented by two Democrat Senators and they go into every election season knowing all their electors will go to the Democrat presidential nominee. The same problem to a lesser extent exists in reverse in Texas. States like California have many counties large enough to warrant their own statehood, along with 2 Senators and separately allocated electoral votes. If the states were realigned with the big ones broken up and the faux states that are given disproportionate representation merely due to historical accident absorbed, then the granularity of electoral representation would be back in line with what was originally envisioned by the framers.
tommylotto – one of the proposed amendments that was not passed in the Bill of Rights would have added 1 representative for every 50,000 people in a state. The Congress kept to the spirit of this until they got tired of adding new seats and building new Houses of Congress, so they stopped at 435. Think about going back to that.
If your representative represented 50,000 they would be much easier to get a hold of. In fact, they would probably be your neighbor. You don’t need near as much money to run for office for 50,000 votes as you do for 750,000 or 1 million votes. Also, lobbyists would go nuts trying to line up enough votes to get any project passed.
Arizona currently has 9 Congressional districts. Under the old/new plan Arizona would have 134 Congressional districts. That is roughly the number of Congressional districts that NYC would have by itself. There would be 6476 Congressional districts in the country right now, if my math is correct. Think of trying to lobby 6500 votes.
A constitutional convention would be a crap shoot. Just remember how the last one ended. Gerrymandering is the only way states who are under Federal guidelines can get their maps approved once every ten years. You have to have safe black districts, safe Latino districts, etc. You have to tick all the boxes.
Other than that I disagree with the rest of the article. More judges will not solve the problem. Term-limits would help, however only Congress can determine term-limits, not the states. There is also a problem with people who are term-limited at the end of their term. They do not have to care about the job anymore. Every know someone who was going to retire? They put themselves on auto-pilot at least 6 months before their retirement date. They no longer care.
I do think the national networks should be prevented from ‘calling’ a state for a candidate until the polls are closed in all the states. This is something the Federal Election Commission or the FCC could do or do in conjunction. In the Mountain States and the West the President has been ‘elected’ an hour or two hours before our polls close and poor Hawaii is just hanging out there with no reason to vote. It hurts our regular turnout.
I must really like the word “the”. Sorry folks.
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.
How can an unused, discarded document bind us together? The events of 31 Dec 15 that did away with the Bill of Rights made the rest moot. What that did do was make it mandatory and legal for the US Military to uphold it’s oath of office.
Part II of that oath is subject to Part I. No one is exempt including the Commander-In-Chief if they have acted against the Constitution.
The only protection from a required military counter-revolution at present, besides there refusal to obey that oath, that a President has is ‘to the best of my ability.’ The military has no such ‘out.’ Their line reads ‘I take this oath freely without purposes of evasion.’
I think it is much too late. A cancer does get cured through the cancerous structure. The problems of this country cannot be solved through the cancerous system. The bad bacteria are much too strong , resilient and adamant in overwhelming the good ones.
Gangrene has set in, folks, and only people in the streets would change anything, and the people are drugged, entertained to submission, distracted, ADDed, ADHDed, chemicalled, poisoned, misinformed, undereducated…
Worse yet, you see the violence we have been purveying worldwide even before the inception of this country? Yes, coming back to haunt us. We are turning against one another as the oligarch milk every little bit out of the system.
When the military serves as business expenditure for the corporations, when people vote NOT to know what goes into their food, when elected officials are bribed into voting against the interest of their own country, when the president is fearful to speak out against a foreign country for what it will cost him domestically, when most of the media reports on brain dead items or consciously lies to us, and when the supreme court is taking sides while being attached to the same oligarchs, this is the roman empire, the Ottoman empire, this is the halls of the Saud, this is the end of this history, and it will die a long, violent death if we allow it, or it will die a short, violent death if the people wake up.
I agree with Prof. Turley that voters left, right and center are all disgusted with our Government, but I think that all are disgusted for sharply different reasons. The left feels the government is not enacting sufficiently leftward policies, the right is disgusted with the government for not moving (or holding) sufficiently to the right. Moderates in the center are simply disgusted at the cronyism and general incompetence at all levels of government.
Right now, the only thing that binds us all together is the Constitution. I fear that opening a Constitutional Convention would begin a free-for-all that takes us into uncharted territory for an advanced society. If you think politics is divisive now, putting absolutely EVERYTHING on the line will make the current divisions look tame.
I failed to x the box
It’s not a revolution they want but a counter-revolution. All it takes is the military to uphold there oath of office and it’s legal too! Nothing difficult about it at all. Just wants a few military leaders who aren’t traitors to that oath.
It’s a requirement….
Olly writes, “The 17th amendment stripped the states of true representation in Congress which in turn accelerated the transfer of power from the states to the federal government.”
How so?
Americans already are what they want to be.
As a Nation we have and are yet again “flashing” the world with our most repulsive “anything for a buck” and our worshiping of the obscenely greedy plus unproductive entertainers making up our American Royal Family.
All the while the poverty wages enabling Wal-Mart and the like to have their working people be eligible for welfare, paid for by the middle class, and dupe T.M.C. complainers into blaming the poor, never catching on that the only one actually producing anything at their overpriced entertainment splurges is the kid bringing them hot dogs.
We have indicted the guilty……and it is US*!*
I don’t think that we are in the ” midst of an American revolution where citizens have arisen in collective disgust of the establishment and the status quo”
If fact most citizens are basically uninterested in and disengaged from the political process.
The Science Geek
http://www.thesciencegeek.org
The 17th amendment stripped the states of true representation in Congress which in turn accelerated the transfer of power from the states to the federal government. The idea that the original process was corrupt and therefore needed this radical change has done absolutely nothing for the corruption and it took whatever voice the states had when this great compromise was devised away.
JT, your post ignores the most important factor in our system of government and that is the need for an informed and engaged electorate. The fact that the general election at best will have a 65% voter turnout absolutely is reflective of an apathetic citizenry. Add on top of that the fact civics literacy is woefully inadequate only exacerbates the problem. Our system NEEDS the people to not only KNOW how a constitutional republic is supposed to work but they have to be engaged and willing to remove from office any politician that dishonors their oath of office.
Why do we require immigrants that want to become citizens take a citizenship exam? If the theory is that we want these new citizens to know how our government is supposed to function, then that should be a requirement for ANY citizen that enters the franchise. Either it is necessary knowledge or it is not; I believe it is. The people ARE our systems term limiters and with a civically illiterate electorate the only reasonable choice is to term limit them by constitutional amendment.