Tuesday, December 1, 2009

Rewriting the Constitution, Introduction

I take it for granted that our political institutions need reforming, and I think I can summarize the reason for it in one word: plutocracy. None of our most important government offices can be attained without the expenditure of vast amounts of money. If you aspire to office, you either have to have a great deal of it yourself, or you have to go hat-in-hand to those who do.

We see it most blatantly in the non-stop fundraising done by presidents and presidential candidates. This year I was an enthusiastic supporter of Senator Obama, but I was taken aback by the enormous amounts of money he raised, and even more concerned at the apparent correlation between campaign financial strength and standing in the polls. Just as God is said to favor the side with the larger army, the electorate undoubtedly responds to the candidate with the fattest campaign chest. This year I thought the money was on the side of the angels. But what about next year?

This problem is so pervasive I don’t think we see it anymore. It’s not bribery in the criminal sense. It’s an accepted way of purchasing access, influence, a friendly ear. We allow it, at worst, as a necessary evil. But is it really necessary? I have wondered whether there may be a way to re-organize our political institutions to prevent their being more or less for sale. This is how I might do it.

Rewriting the Constitution, Part 1: The House of Representatives

What is a legislature for? To frame laws. Who should have that responsibility? Most of us accept that political sovereignty lies in the people as a whole, and that the people as a whole therefore has the primary right to legislate. How then are we to express our collective will?

There is first, democracy. We citizens sit in a room or assemble in a field and consider questions and vote on them and thereby promulgate laws. There is a practical problem with that. There are about three hundred million of us. We obviously can't fit in a hall or sit down on the side of a hill. Even with our cyber resources an assembly of the whole citizenry would be impracticably unwieldy. So we go next to the representative principle.

How do we choose representatives? Some few with time and influence and resources put themselves forward in one of two stereotyped parties, in oddly-shaped districts, spending most of the enormous amounts of money they must raise on advertising. We don't know them, and learn very little about them. Most of us don't vote. And, once in, our representatives develop a remarkable talent for re-election, based, not skill at framing laws, but in two primary areas: "bringing home the bacon" and constituent service. The first is the counterpart of the role of private money: here federal money is brought back into play in the district, to the benefit of those who invested in the candidate. The second seems innocent enough, helping citizens with the intricacies and occasional stupidities of the bureaucracy--but such help is obviously not equally available to all. And why, after all, should such help be such a major function of a legislator?

How might we set up a representative assembly differently? I would suggest using an ancient device now much neglected (except with jury service): the lottery. Why not simply choose at random our House of Representatives from the people at large? It seems to me that there would be many advantages to such a system.

First, the assembly would be a real demographic picture of the population as a whole, roughly half women and half men, reflecting our ethnic make-up, our social and economic classes, our regional differences and concentrations, our professions and problems.

At first I had thought that, well, of course, there must be conditions. Surely our representatives must understand English. But then I reflected, why should our non-English speaking population be unrepresented? We have translators at the UN; what's the big deal about having then in our House?

Then I thought, OK, but surely there must be some educational minimum, at least literacy. If X% of our population is illiterate, then X% of our assembly will be as well. But again, how better to raise our educational problems, and who better to demand that they be addressed, than a minority of our assembly who suffer the consequences of our neglect?

The assembly, in short, would be representative. It would contain the poor as well as the rich, the foreclosed-on as well as the bankers, the failures as well as the successes, the day-laborers as well as the lawyers

.Nevertheless, if the lottery is truly representative, there will undoubtedly be some incarcerated felons in our House. There we may perhaps make an exception to our demand for pure representation, not as a rule excluding all felons or all the incarcerated (guards can be supplied as well as translators and readers), but as a House committee constituted to determine on a case-by-case whether persons falling in such category should be passed over. Past felony convictions, for example, should not absolutely disquality; our drug laws have ensured that many more people than we imagine have such records, and I don't see why such persons should, for that reason alone, be disqualified--for they too are representative. Of course our population has its share of vicious, pathological souls who should certainly be excluded, and I don't think their being singled out and excluded should be too very controversial.

Once we choose and seat our representative House, there appear some interesting consequences. This House will of course need to be organized, and will, like the present one, elect a Speaker. But there will be no need of majority and minority leaders, as the process of choosing Representatives makes parties superfluous. Our first representatives under this scheme might indeed still think of themselves as Republicans or Democrats, but they will not be expected to adhere to any party line, or be subject to party discipline.

One of the great illusions of our current system is that all political ideas fall on either a "liberal" or "conservative" side, and that one who is "liberal" on, say, foreign policy, will also be liberal on the minimum wage, education, national defense, etc. Our current party platforms define reasonably accurately how one is to think on most issues, if one is to be a loyal Democrat or Republican, and, if our leading politicians seem to accept the stereotyped positions of their parties, it's easy enough to explain: they could not succeed without doing so.

An example: Suppose one opposes abortion and the death penalty. The first position would prevent going very far in the Democratic Party (the late Pennsylvania governor is perhaps the exception that proves the rule). Similarly, so far as I know, no ambitious Republican has ever dared breathe a word against capital punishment; it would be the kiss of death in any primary. In other words, on this issue, the "issue alignment" of the parties freezes out anyone holding opinions consistent with what has been called the "seamless garment." And why should that be?In an assembly put together by lot, each issue stands on its own. No representative has a platform to conform to, a "constituancy" to answer to, or a backer to repay. That's not to say that factions won't form--but they will be shorter term than our present parties. And that's not to say that needed, costly projects won't result in "horsetrading." But surely the distribution of federal largess can in this context be addressed more dispassionately than under the present system.

What about the chosen but unwilling? No one, I think, should serve in this capacity involuntarily. So the lottery would need to have alternatives in the wing. In order to encourage those of modest means to serve, there should be a decent, but not excessive salary, and free housing in Washington so that they may keep their current homes or apartments, to return to at the end of their term. Needless to say, there must be no trading on the position, no gifts, no speaking fees, no other income. Perhaps there can be some limited protection of existing jobs, like we do for state militias, to disrupt ordinary people's lives as little as possible.

But is this really possible? Can ordinary people really legislate? It's a fair question. And part of the answer is that some experience can be built in with staggered terms. Suppose each representative chosen served a single three year term. By staggering terms, one third of the House at the beginning of each term would be new to the job, one-third would have a year's experience, and one-third would have two year's experience.

But the larger answer to this question lies in the fact that our legislative branch, the Congress of the United States, consists, not in a single House, but in two. And it is in the Senate, I would suggest, that political experience counterweigh the popular and amateur character of our reconstituted House of Representatives.

Rewriting the Constitution, Part 2: The Senate

The Senate as now constituted is both redundant and unrepresentative. Insofar as its "districts" are the States, the cost of running makes pursuing a place in the House look almost a bargain. It is, as we should expect, largely a millionaire's club.

How could things be different? We can take our clue from the name given the upper house by the constitution: the senate. In ancient Rome the senate was the assembly of former magistrates, whose constitutional position unhappily remained ambiguous. That uncertainty became a constant source of political mischief, and the Roman senate's alignment with patricians, then optimates, then emperors, kept it always chained to the interest of the few. But its strength, and utility, always lay in its being the permanent repository of political experience in the state.

Despite its dangers, I don't think an "upper house" necessarily dangerous when, as in our Constitution, it is conceived as a partner with the representative assembly, with all legislation requiring the concurrence of both. The ancient Roman senate had too much dominance of affairs as they went before the popular assemblies, and the institution of the tribunate, as a stopgap way of redressing the balance, became a source of serious conflict for centuries.But I think the conception of the upper chamber as balancing the inexperience of the representative assembly has much merit. The trick is to define which former magistrates shall serve in the Senate, and under what conditions.

Our current tradition is to release our former presidents to play golf and increase their personal wealth with lucrative speaking fees to industry groups. We've grown used to the idea that it's somehow beneath the dignity of former presidents to continue to serve their country in lesser capacities. But in fact it's a terrible waste of experience.

So I would populate the Senate with former presidents, former vice-presidents (if we decide to keep that office), former Speakers of the House, former Supreme Court justices. These, I think, could be allowed to serve for life, with the most senior former president presiding. Who else?

I think it would also be a good idea to include former governors. That would allow the Senate to retain its current character as the unique national legislative locus of specifically State concerns. But because there are obviously so many of them, life terms for former governors would swell the Senate's size too greatly. So each governor would serve only until another former governor from his own particular State went out of office. Thus, for example, New Mexico would currently be represented in the Senate by Gary Johnson, who would serve until Bill Richardson gave up the governorship and moved into the Senate.

It might also be wise to allow certain former cabinet secretaries limited terms after their service--State, Treasury and Defense, for example.None of these magistrates could be compelled to serve. They would certainly be allowed to play golf and rake in the speaking fees if they so chose. But that choice would be irrevocable--if, after leaving a qualifying office, they refused service in the Senate, they would thereafter be ineligible to serve. And I think, given this structure in place, it would eventually become a firm social expectation that those to whom authority has been given should continue to serve in this capacity. As currently, all new legislation would therefore have to pass in both the House of Representatives and the Senate. We might have a legitimate concern that the ordinary citizens of the lower house might be a little overawed by the "names" in the upper. But as a co-equal partner in the framing of laws one would hope that their representative character would give them the courage to bring their distinctive perspective to the legislative process, tempered by the senators' experience of actually governing.

The Senate would also retain its current "advise and consent" function for ambassadors, cabinet officers, federal judges, and treaties. One would hope that this membership for the Senate might make it less likely to be overawed by the sitting executive, and perhaps less deferential.

And so on now to the selection of the chief magistrate of the nation.....

Rewriting the Constitution, Part 3: The Chief Executive

Our manner of picking a president suffers from all the problems associated with any elective office when the electorate is so enormous: the cost of being heard is incalculable, and only those who are extremely rich, or who can raise funds in the tens of millions of dollars, have any chance of even being considered. During campaigns there is as much fundraising as campaigning. And if the candidate is elected to office, it sometimes seems as if the officeholder spends as much time fundraising as governing. And the strange thing about all this is that we accept it as normal, that our candidates and presidents, who themselves are invariably wealthy, are nevertheless continually begging for money, and incurring the occult obligations that go with that.

So I would propose a radical reform to eliminate at least some of that. It is, I know, a new approach. But I even came up with a name for the body that would choose the president. I call it "the electoral college."

OK, I know, that's who now elects the president, and who is invariably the subject, every four years, of cries that the electoral college must be abolished, insofar as it can thwart the general will, as it did most recently in 2000. But over the years--actually, almost from the beginning--the electoral college has become (with a few exceptions) simply a conduit for tallying winner-take-all elections, state by state.

It is instructive to contrast this with what the Founders thought they were doing in setting up the electoral college in the first place:

"It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

"It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations."

This is Hamilton, from Federalist No. 68. The idea is that the people choose a body for the special purpose of choosing a president. That the electoral college never became a deliberative body is a consequence of the constitution's prohibition of its actually meeting; the electors now meet in their states, separately, and now only pass on, imperfectly, the results of the popular vote.

It seems to me that there is much to say about picking a president with a special elective assembly. For starters, the electors would not be constrained to pick only those who are running for office. Arguably, on only one occasion, did the electoral college function as intended by the founders: when it picked the reluctant George Washington for president.The electors would themselves be chosen in local elections. They themselves would be ineligible for the office. Once chosen they would be free to consider, not only the obvious candidates, those who put themselves forward, but other men and women of achievement, in government, business, education, the military, law, medicine--wherever--who might show promise. They could interview them, investigate them, hold hearings--in short, do whatever anyone else would do in considering anyone for an important position. And added advantage would be the consequence for party affiliation: it would become irrelevant.

Since the leadership of the Senate is in the hands of a former president, the question comes to mind of whether a vice-president is really needed. On reflection I think the office is a useful one--given the president's importance, it would be good to have someone in the wings in the event of a death, resignation, or removal. But the vice-president would be chosen in the same manner as the president, by the free selection of the electoral college. He would in no sense be a "running mate." Furthermore, he would not necessarily complete any unexpired term. On his taking office the first act of the vice-president should be to call for the election of a new electoral college, to choose a new president; he or she would merely be a caretaker until a new president was chosen. The electoral college could, of course, choose the vice-president for president. But it would be unconstrained in that choice.

One of the weaknesses of our current system is that there is no provision for removal of a president for incompetence or for political reasons. Currently only "high crimes and misdemeanors" will do it. But, as recent experience has surely suggested, there is a need in the American government for some equivalent of the "vote of no confidence" in the Congress. I would recommend that if two-thirds of each house votes for the removal of the president, removal should follow, and a new electoral college be chosen to pick a new president.

A president so removed would still have the right to serve in the Senate (as opposed to one convicted of crimes under the current impeachment procedure, which should continue in effect, unchanged). The current four years terms, with a possibility of one re-election, seem to strike a good balance between the need to have sufficient time to enact a president's plans and the need to limit the exercise of power by a single individual.

On a minor note, I would also get rid of that provision barring the foreign-born from the presidency. I am no great fan of Arnold Schwarzenegger, but I don't see why his foreign birth should disqualify him for office. Surely a reasonable terms of citizenship beforehand--twenty years, perhaps--should suffice. I wonder if our current provision had something to do with lingering resentment over the accession of the Hanoverians to the English monarchy.

Rewriting the Constitution, Part 4: The Supreme Court

With the judicial branch I honestly have must less to suggest. The Court is an appellate tribunal; even with those few matters falling within its original jurisdiction, such as suits between states, it really acts as an appellate court reviewing the conclusions of a Special Master.

I would retain the present method of appointing justices, though I would hope that the Senate as reconstituted would perhaps more aggressively exercise its prerogative of advice and consent.

The great issue with the justices is keeping the judicial function to the judicial function. Constitutional and statutory review necessarily implicate policy choices. All justices, in one way or another, eschew the notion that they are engaged as a sort of super-legislator. But all, at one time or another, give in to the temptation--even if we can't always agree when they have.I know of no way to solve that problem (not, I would hasten to add, a problem on the scale of money-talking that got me started, but, while I'm solving the nation's problem, why not?). But one approach is to give the justices a legislative future, i.e. limit their terms to, say, ten years, and then have them rotate into the Senate, like other magistrates.

This would not of course guarantee that they wouldn't stray into the legislative function. But it might give them a sharper sense of the distinction, in a personal way. And they would have a distinctive experience to bring to the Senate, both in crafting legislation with judicial review in mind, and in passing on presidential nominees.

One other point, perhaps not so minor. I would have at least a third of the Court positions filled by non-lawyers.I know, we typically no longer allow non-lawyers to preside over even municipal courts. But there is a narrowness to the legal profession (I'm a lawyer myself) that could use some tempering in the highest tribunal. It's a difficult point to make, exactly, but it's based on a recognition that if, as observed above, there is invariably a non-technical, political aspect to judging, then there is a place on the bench--in the minority, importantly--for judges guided by something else than professional expertise and the received traditions of the bar. It's not that they would be expected to ignore the law, but rather that their very amateurism might prompt fresh questions and novel approaches outside of the tunnel vision sometimes characteristic of certain types of professional experience and training.

Can non-lawyers make good judges? Of course they can. For about six years I practiced as a member of the Navajo Nation Bar Association. In the Navajo court system some, but not all, of the judges had law degrees. I could never really tell which did and which didn't. We argued to them, and briefed issues, as if they were lawyers, and the remarkable thing is, if a brief is done well, and clearly, it will be as intelligible to a layman as a lawyer. We are not dealing in matters arcane, like, say, quantum mechanics, but the everyday stuff of human interaction--the known and assumed rules of conduct, local custom, fairness, the need to restore harmony after certain balances are thrown off. Of course non-lawyers can make such judgments, and would give precedents and authorities the weight they deserve as a matter of fairness and respect for community standards. But they would also see things through their "lay eyes" that we with a particular type of training might miss. So, I would say, put 'em on (but no more than a third).

There is one other consideration. Maybe it's not so important that it goes in a re-written constitution, but there is something a little unseemly about Supreme Court judges hobnobbing with other high government officials whose actions they will undoubtedly have occasion to review. I don't think I'd cloister them, but I think it makes sense to to limit those kind of contacts, as we now forbid ex parte communications. The judges, after all, once were clerics, and a little more propriety, a little more independence, a few fewer duck hunting expeditions, would in all likelihood increase the respect for opinions rendered.

Conclusion: Dude, Where’s My Vote?

Yes, it is largely gone, because the lottery has taken over the job of finding representatives. It remains for choosing those with the job of electing the president, and presumably remains in State elections unless they too choose to overhaul the works.

It is a loss to be considered, but not without reflection on what a vote is for, and how often we cast it for less-than-creditable reasons, or in ignorance, or based on mere party enthusiasm, or in thrall to a carefully crafted advertising campaign.