How to fix the Constitution in a divided Washington
President Trump continues to contest the outcome of the presidential election, albeit with essentially no success and no real prospects for any. But his failure in the courts has not been matched by failure in the only court of public opinion that matters to him: that of his own base. An increasing proportion of both Republican voters and (more alarmingly) Republican officeholders seem to believe (or at least claim) that Biden's victory was not fairly won.
I remain resolutely confident that both the legal wrangling and the political noisemaking will have no impact on the final result, and that Joe Biden will be inaugurated the 46th president on Jan. 20. But it hardly feels like an auspicious time to think about reforming our democracy to make it stabler and more responsive — the subject of this column. As I said before the election, “Constitutional moments come at times of profound and hard-won consensus.” When we can't even seem to agree on whether the sky is blue without first checking whether Donald Trump said it's green, how on earth could we come together to make fundamental changes to our system of government?
But maybe I've got it backwards. Maybe now is just the right time to think big.
In the weeks and months prior to the election, numerous Democrats called for a suite of constitutional reforms (though Biden wisely never endorsed such plans). Abolishing the Electoral College, adding new states whose senators would tilt Democratic, and expanding the Supreme Court were all presented as justifiable payback for Republican constitutional hardball — but also as necessary fixes to a system that is increasingly minoritarian, and hence lacking basic democratic legitimacy.
Progressives made a powerful case, certainly, against aspects of our system. But their proposed remedies were closely tied to their own partisan interests, which made them captive to their electoral fortunes. Now, it's clear that mobilization begot counter-mobilization, and the majority they believed they had has proven far more equivocal. In a closely divided nation, any systemic reform only has a chance if it offers something to both sides.
So what would it look like if we took a different tack, and imagined a constitutional reform that could actually earn cross-partisan support?
The Electoral College
The founders themselves thought the Electoral College was a ridiculous kludge, and it has long since failed to serve the purposes it was intended for: preventing the election of a populist demagogue. Getting rid of it would instantly improve the democratic legitimacy of our presidential elections, and it could be eliminated without a constitutional amendment by means of the National Popular Vote interstate compact. Surely this is a no-brainer reform.
But while the Electoral College hasn't reliably benefitted one party through history, today it clearly benefits Republicans, who will therefore fight the NPV tooth and nail. Meanwhile, getting rid of it through the NPV might actually make our Constitution less stable, and maybe even less democratic, than it is right now.
For one thing, the NPV would award the presidency to the plurality winner. That sounds fairer than a system that sometimes delivers minority rule, as ours has — but what if there were four major candidates each earning less than 25 percent of the vote, as in the first round of the 2017 French presidential election? Without a runoff (which the NPV cannot provide for without amending the Constitution), such an election could yield truly perverse and dangerous results — and would be unlikely to be viewed as legitimate.
But plebiscitary elections for president are also risky in and of themselves. As the only officeholder elected by the whole people directly, the president would have every reason to claim more legitimacy than the legislature, and to press that point in any conflict between the branches. For those of us already worried about our hypertrophied presidency, this is not a pleasant prospect. The track record of presidential systems in avoiding constitutional crisis is poor in part because of this very dynamic.
What, then, if instead of eliminating the Electoral College, we reformed it in precisely the opposite direction — following Maine and Nebraska and dividing each state's electoral votes by congressional district?
One immediate result would be to lower the temperature on allegations of fraud of the kind that are being bandied about right now. It's implausible enough to believe that either party could rig the vote in a key state given the safeguards in place today; engineering fraud across multiple competitive congressional districts would be simply impossible. If such a reform were combined with the elimination of the gerrymander — as it would have to be — elections for both the presidency and for Congress would be highly competitive, including in states that are currently dominated by a single party, and winning the presidency would continue to require broad geographic support. Finally, tying the Electoral College to congressional districts would prevent the president from claiming priority over the legislature; both would have been elected by the same electorate. As such, a mid-term rebuke would more plainly represent a vote of no confidence, and would embolden the legislature accordingly, providing a greater check on presidential presumption in inter-branch conflict.
The decisive advantage such a reform would have in our current circumstances, however, is that it would not obviously advantage either party. In the short term, I suspect it would advantage Democrats, since gerrymandering has significantly padded the Republican position in much of the Midwest and South. But over a slightly longer horizon I'm less sure. Democrats failed to make the headway they wanted in Texas or Florida in this election, but they are far closer than Republicans are in California. A far-sighted Republican leadership would take that into account when deciding whether they'd rather live in a world where the playing field is more level, but fluid, or one where it tilts decidedly against them.
The most minoritarian aspect of our current electoral system is the United States Senate, where each state gets two senators regardless of size. For much of American history, that skew toward small states offered no distinct partisan advantage — but it does now. So an increasing chorus within the Democratic Party has called for adding states that they believe would tilt their way: the District of Columbia, Puerto Rico, maybe even the U.S. Virgin Islands, Guam, and American Samoa. It's what the Republicans did when they added North and South Dakota. Why isn't turnabout fair play?
Arguably it is — but it's also a perfect vehicle for counter-mobilization of the Republican electorate to preserve their Senate advantage. The larger problem, though, is that it's not actually a reform of the system at all. Adding additional small states wouldn't make the Senate more representative; it would make it less so. And Democrats should have no confidence that tiny states would remain reliably loyal to the party that created them — the Dakotas didn't, after all.
The problem with the Senate isn't primarily the small states — it's the big ones. Californians deserve far greater representation than they currently get; so do Texans. But Article V of the Constitution forbids any amendment to increase representation of the larger states. The only actual way to reform the Senate, then, is to break up the largest states into smaller components. (And breaking up the mega-states might have real benefits for those states' residents as well; California is already far too big to be governed effectively.)
The Democrats could do this unilaterally in states they control like California and New York. But they'd run the risk of enfranchising their partisan opponents; upstate New York would be very competitive between the parties if it were its own state, as would a state carved out of California's Central Valley or the Inland Empire. That's precisely the appeal to Republicans, though: that it would give them a chance to compete for power in areas where they are permanent minorities today. And since breaking up Texas would create similar opportunities for Democrats, this is a classic case where the only way reform might happen is if everyone jumps together. (The same thing is true for eliminating the gerrymander, which benefits the dominant party in any state.)
A neutral rule that required states larger than, say, three times the population of the median state to be broken up could potentially win the support of both parties. Add Puerto Rico — the only territory large enough to clearly merit statehood — to the list, and enfranchise residents of America's other territories by incorporating them into existing states (D.C. by retrocession into Maryland, the U.S. Virgin Islands into Florida, and the Pacific territories into Hawaii), and you'd have eliminated second-class citizenship while also removing the threat that a future majority would create new small states purely for partisan advantage.
The Democratic threat to “pack” the courts by adding judges and Supreme Court justices has never been especially credible because it is founded on an internal contradiction. Democrats want the courts to be powerful and respected, so they can protect individual rights and equal treatment, but packing the courts would erode their legitimacy, and hence their ability to play that desired role. But it's still a problem that the courts have become such a political football. In a very real sense, the rest of the Democratic agenda — and their hopes of regaining a majority — are being held hostage to Republican determination to hold onto the courts, since Republicans are better-mobilized by the issue than Democrats are.
Rationally, then, the Democrats should want a deal that reduces the political salience of the courts more than the GOP does. Establishing 18-year term limits would make future nominations highly predictable: every presidential term would get two Supreme Court appointments, one in the first year and one after the midterms. A similar schedule could be established for the lower courts to end the spectacle of vacancies being held open when the Senate is in the opposing party's hands. That wouldn't eliminate the political salience of the courts for presidential or senatorial elections, but much of the drama would drain out of the process.
What could induce Republicans to support such a reform, if it would deprive them of both a winning issue and the ability to shape the courts for an extended period of time? Perhaps it would be enough if the Trump-era nominations were locked in, preserved from erosion through court packing, which terms limits would legislatively take off the table. Meanwhile, the issues that Democrats have historically championed through the courts — whether it's abortion rights or anti-discrimination or voting rights — could still be pursued through state legislatures and through Congress. Those issues are likely more popular in general than proposals to pack the courts — and when they are deeply unpopular, even liberal Supreme Court rulings are unlikely to stick for long.
The above may sound like an unacceptable retreat. Or it may sound like starry-eyed optimism. In a sense, it's intended to be both. Constitutional reform requires overwhelming support. Had the Democrats won massive, Roosevelt-scale majorities, they could push through the kinds of dramatic changes that Roosevelt did — or that the Radical Republicans did after the Civil War. But majorities like those are simply not in prospect. The election results, which reinforced our divisions rather than resolving them, should have made it clear that if we do want to reform our Constitution, the process itself will have to create the consensus on which it depends. Which means it will have to speak to the hopes and fears of partisans on both sides of that yawning divide.