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A More Perfect Constitution
23 PROPOSALS TO REVITALIZE OUR CONSTITUTION AND MAKE AMERICA A FAIRER COUNTRY
By Larry J. Sabato WALKER & COMPANY
Copyright © 2007 Larry J. Sabato
All right reserved. ISBN: 978-0-8027-1621-7
Chapter One
CREATING A CAPITAL CONGRESS
IT'S NOT HARD to discern how most Americans look at Congress. Whether in public opinion polls or person-in-the-street interviews, citizens regard the national legislators the way they would disliked relatives: They know they have to live with them, but they hope to have as little contact as possible. Can Congress blame us for feeling this way? Year after year, the Congress seems hopelessly deadlocked on issues of immediate concern to the country. Global warming? It needs more evidence, maybe deep water in the streets of coastal cities. How about reform of our complicated, special interest-driven tax system that remains a national disgrace-arguably the worst in the industrialized world? This is never a priority. Health care for the millions of uninsured Americans? It always appears to be on the agenda for the next decade or the one after that. A balanced budget so that the nation could begin whittling down trillions of dollars of debt before it completely consumes our ability to meet the growing needs of an expanding population? But that would cost special interests their pet programs, corporate subsidies, and tax breaks-and they fund the congressional members' campaigns. It would also mean disappointing the legions of well-paid lobbyists who have developed close relationships with long-serving members of Congress. The lobbyists deliver lots of campaign cash, and whatever the ethics laws of the moment, they find ways to richly reward their legislative friends.
Instead of seeing positive action, Americans witness headline after headline of congressional corruption. Some is old-style sleaze-bribery, influence-peddling, and personal scandals reflecting ancient vices-that reeks of a sense of entitlement. Other congressional fraud reflects modern forms of dishonesty. The congressmen, in cahoots with their allies in the state legislatures, have cooked the redistricting books, using sophisticated computer programs to draw the district boundaries in such a way that they can almost never lose reelection. The campaign finance laws are deliberately tilted heavily in the incumbents' direction, too.
It's wrong and cynical to dismiss all of this as the inevitable consequence of the corrupting power of, well, power. What we have not focused on enough is the effect that the rules and structures of the American constitutional system have in encouraging the corruption. Some fraud is likely under any regime, and as I will explain, any legislature will probably be out of public favor most of the time. But the degree and depth of the corrupt practices can be reduced over time with sensible reforms. To the degree that Congress's unpopularity is due to unfairness and ineffectiveness, the proposals herein can make a difference.
In some ways, we can pity the poor Congress. It is not popular now, and it has never been popular save for brief periods during national crises. Right from the very beginning, Americans instinctively distrusted the legislative branch and made fun of it. One of the earliest ditties summed up the people's view well.
These hardy knaves and stupid fools, Some apish and pragmatic mules, Some servile acquiescing tools, These, these compose the Congress!
When Jove resolved to send a curse, And all the woes of life rehearse, Not plague, not famine, but much worse- He cursed us with a Congress.
These verses were directed against the Continental Congress of 1776! But nothing much has changed, save the colloquialisms, and modern Americans could easily be at home reciting similar lines.
The reasons for the public's semipermanent disaffection with Congress are all too clear. No committee of 535 can act with dispatch or appear especially organized; even with strong legislative leadership, Congress is composed of independently elected members, each of whom has a sizable ego. The division of the legislature into two separate bodies, House and Senate, creates more disunity and contributes to the chaotic image Congress frequently projects. The legislative branch is also elected from districts and states, not the nation as a whole, so its concerns often seem parochial, with the national interest lost in the welter of special interests clamoring to be heard. Moreover, with so many members of Congress, at least a couple dozen, at any given time, are bound to be involved in legal or ethical scrapes. Bad news being news, these delinquent legislators soak up much of the media coverage devoted to Congress, giving the public a distorted view of the branch's composition. And let's not forget that the best metaphor for any legislature is the sausage factory. People may like to eat the savory product, but only if they haven't watched it being made. Reporters don't cover sausage factories, but they follow every jot and tittle of the legislative process-and it's rarely a pretty sight. Add all these factors together, and it is easy to understand why Americans hate the Congress. The only brief exceptions are at times of national crisis, such as Watergate or 9/11, when the instinct to "rally 'round the flag" includes support for virtually all U.S. governing institutions, or moments of special optimism, such as the opening days of a new presidency or victory in war.
While acknowledging the justification for much of the criticism, we also ought to note that Congress works much as the founders intended. The legislative branch was and is designed to be the "inefficient" element of the federal government, slowing the "efficient" branch, the presidency. The chief executive by nature desires everything to be done immediately, and his way. The Congress slows down the president's policies, forcing them through the prism of the nation's diversity of opinions, groups, and interests. After all, Congress comes much closer than the president or the judiciary to mirroring the country's richness of talent-by gender, race, religion, background, occupation, and ideology. While much remains to be done, great progress has been made in diversifying Congress over the past half century. For example, just a handful of women and minorities served in both houses in the 1960s (an average of fifteen per Congress through that decade), but the Congress elected in 2006 had eighty-seven women (sixteen senators, seventy-one House members), forty-one African Americans (one senator, forty House members), six Asian Americans and Pacific Islanders (two senators, four House members), and one House member each for American Indians and Asian Indians. The cacophony of congressional voices is not harmonious and will never be smoothly orchestrated by anyone, yet how could it be otherwise in a nation that is so exceptionally decentralized and so decidedly diverse?
No one should ever tamper with these aspects of legislative representation, except to strengthen them. Toward this end, I propose to build upon the founders' congressional model in several ways. First, we need a larger, more representative U.S. Senate that better fits the massively increased population of twenty-first-century America, with a new category of senator whose job is to advocate for the national interest first, rather than the needs of individual states. Second, the House needs reforming, because extreme partisan redistricting has virtually drained the lifeblood of vigorous competition in elections. It is time for a new era of real choice in House campaigns, so that the House can resume its position as the federal body closest to the current thinking of the American people. Further, the founders' idea of expanding the House along with population growth should be renewed, so that each member of Congress can represent a smaller constituency and have personal ties to more citizens. Finally, the election schedules and term lengths for both the U.S. House of Representatives and the Senate need to be realigned, so that there is a better chance the diversity of Congress can be harnessed for constructive cooperation with the executive-in the interests of sound public policy to serve the people. (This last topic is explored in chapter 2.) Taken as a whole, this reform agenda can reinvigorate not just the Congress but American government and politics overall.
In addition, a couple of additional constitutional amendments can make Congress more responsible in fiscal matters (via a balanced budget mandate) and more secure in a dangerous era. The latter is an unnerving but necessary addition to the new Constitution: a Continuity of Government provision in case Congress should be the victim of a terrorist attack or other calamity. While the current Constitution includes a detailed plan for presidential succession, there is no such plan for the legislative branch. There ought to be; the frightening age in which we live demands it.
REFORMING THE SENATE
Toward a More Representative Senate
In a special Saturday session on February 17, 2007, the U.S. Senate took up a Democratic-sponsored resolution disapproving of President George W. Bush's so-called troop surge in Iraq-his controversial and unpopular decision to send 21,500 more U.S. troops to that war-torn country. The 2006 election was decided in the Democrats' favor essentially because of this issue, and the Democrats in the U.S. House of Representatives had earlier been able to secure a large (246 to 182) majority for the same resolution. At the end of the day, the Senate voted 56 to 34 to end debate and take up the resolution-the fifty-six senators comprising the majority that would have supported the resolution itself. But the Senate is not run simply by means of majority. This measure required 60 votes under Senate rules, and so the Senate took no position at all on the biggest issue on the national agenda. And the fifty-six senators represented 62 percent of the country's population-a large majority of the American people. Keep this day, and this vote, in mind as we think through the structure of the Senate.
Two principles embraced by the founders about the Senate are worth preserving. Fundamentally, the Senate represents semi-sovereign states, and despite all the changes wrought by time and technology over the centuries, most Americans still identify with and have great devotion to their individual state. Yes, we are all Americans, but we are also New Yorkers, Floridians, Iowans, Utahns, Oregonians, and all the rest. We're proud of our state, learn about its heritage throughout life, and even if we live in many states over the course of our lifetimes, we adopt each one as part of us-and hope they adopt us. Woe to the researcher or journalist who believes that all states are basically the same, or that a homogenization of state cultures has occurred as the world has shrunk. True enough, Holiday Inns and McDonald's restaurants are everywhere, but the cultures of Louisiana and Minnesota, or Kentucky and New Mexico, could not be more divergent. Cartographers often decry the crazy-quilt pattern of state boundaries and logically assert that they could draw the lines far more rationally if given the chance. They won't have the opportunity, because the land is spoken for in Americans' hearts and heads; change is out of the question. North and South Dakota, both lightly populated and essentially rural, could easily be combined into one mega-prairie state-but try telling that to the residents of those states. The Dakotas are less alike than outlanders think, and the people in each state, while outwardly pleasant to one another, regard each other a bit reservedly. The same is true with the Carolinas and the Virginias, the Pacific Coast states, and the Southwest states that may have similar topography on a map. The United States is still a federation of semi-independent entities, and the public is reasonably happy with the status quo.
The second principle was equally dear to the founders. They insisted that the structure of the Senate should protect minority rights from the "tyranny of the majority," or "mob-ocracy." The United States was to be a republic, a representative democracy, not a pure democracy run by 50 percent plus one of its residents. Among the institutions protecting the Republic is the Senate, originally appointed by the state legislatures rather than elected by the populace. The House of Representatives would be responsive to ever-shifting popular majorities, yet nothing would become law without the acquiescence of the Senate, meaning at least a majority of those representing the various states had to agree. (In some cases, such as treaties with foreign governments, an extraordinary majority of two thirds of the senators was required to concur.) Even after the passage of the Seventeenth Amendment to the Constitution in 1913, providing for popular election of senators, the Senate remained a bulwark against majority tyranny by virtue of the six-year term, the equal representation of states rather than proportional representation by population, and the upper house's internal rules (such as the filibuster) that gave extraordinary influence to a small minority of senators.
All of this is salutary to a degree. But a powerful case can be made that today's Senate has taken the founders' desires to an extreme. In the early years of the Republic, the population ratio of the most populated state, Virginia, and the least populated state, Delaware, was 12 to 1. In 2004 that ratio was an incredible 70 to 1 between California and tiny Wyoming. Therefore, the current Senate is absurdly skewed in the direction of the small states. Theoretically, if the twenty-six smallest states held together on all votes, they would control the U.S. Senate, with a total of just under 17 percent of the country's population!
And from time to time, something similar does indeed happen in a contemporary Senate vote, especially when government spending and benefits (such as transportation projects, homeland security monies, or agricultural price supports) are at stake. Some researchers have even convincingly claimed that the structure of the Senate has resulted in a fairly consistent, and dramatic, redistribution of wealth from the large states to the small states. Some redistribution is inevitable in order to meet the states' varying needs, but it is impossible to justify the massive inequity of the actual redeployment of billions of dollars away from some states with the greatest needs toward many lightly populated states.
The situation is actually worse than I am depicting here. On most crucial policy votes, such as the Iraq resolution example that opened this section, the arcane rules of the Senate permit 41 of the 100 senators to prevent a final vote on the floor by means of a filibuster-that is, continuous debate. Put another way, even if 59 of the 100 senators favor a particular bill, it will fail if the filibuster is employed, since 60 votes are needed to invoke cloture-the shutting off of the filibuster to permit a floor vote to proceed. Therefore, just 21 states can provide the 41 senators necessary to block action. The 21 most lightly populated states comprise a mere 11.2 percent of the nation's population as the Senate is currently constituted.
The key to keep in mind is that under the Constitution's bicameral system for the legislature, nothing passes without Senate assent. Therefore, the Congress has a one-house veto on legislation, and to control the Senate is to control the legislative outcome, and indeed much of what the federal government actually does. The small-state stranglehold on the Senate is not merely a bump in the road; it is a massive roadblock to fairness that can and often does stop all progressive traffic. James Madison foresaw this dilemma, and he vigorously argued, during the Constitutional Convention, for proportional representation by population in the Senate, not just the House. When his proposal was defeated by a coalition of the small states, the large states seriously considered withdrawing from the conclave. In desperation, Madison gave in, but he openly admitted he despised the compromise. Madison's fears have been validated as the gap between small and large states has grown to the point that California and Texas, with fifty-one times the population of Vermont and Wyoming, have the same representation. It is the height of absurdity for our gargantuan states to have the same representation as the lightly populated ones.
(Continues...)
Excerpted from A More Perfect Constitution by Larry J. Sabato Copyright © 2007 by Larry J. Sabato. Excerpted by permission.
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