The Electoral System is Broken, Time for Something Radical – Part II

Last week’s piece focused on the sorry state of electoral politics in the United States. It finished with the observation that all the obvious pathways to electoral reform are dead ends – if anything meaningful is going to happen, it needs to happen in a new way. That way, I suggested, might be an effort to try something that hasn’t been tried since 1787: call a constitutional convention.

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy via Wikimedia Commons

“Scene at the Signing of the Constitution of the United States” by Howard Chandler Christy via Wikimedia Commons

For those who may be less than fully acquainted with the obscure details of the Constitution, the country’s founding charter provides two methods of amendment. The first is the one that has been successfully invoked twenty seven times. It begins with a supermajority vote in both houses of Congress in favor of a constitutional change, and proceeds to a vote in each of the states. In order to be adopted, an amendment must receive approval from three fourths of the states.

As I explained last week, any hope for a constitutional amendment that improves the electoral process to be adopted in this way is doomed; no Congress is going to overwhelmingly vote in favor of changing the same system that has put it in power.

But there is another way to amend the Constitution. This alternative pathway, found in Article V, begins in the states rather than Congress. If two thirds of the states petition Congress to do so, Congress is constitutionally instructed to call a national convention, and such a convention would have the power to submit amendments directly to the states for ratification.

There is a lot of political will in the US to see something done to fix our electoral system, but experience has taught Americans to be wary: the process of political change is controlled by politicians who seem unwilling or unable to solve problems. The convention system found in the Constitution is designed precisely to allow for fundamental reform that doesn’t require the involvement of federal officers. If Washington can’t fix itself, the Constitution provides a peaceful way for the country to fix it.

I’ll admit that the fact that this has never been attempted makes it look like a long shot, which it is. But it also allows for unique opportunities. Americans have become dispirited about the prospect of change. They have seen the same process fail over and over. A national convention might not have a track record of success, but it also doesn’t have a track record of failure. It’s something new. It’s the kind of idea that could potentially bring a lot of people off the sidelines.

A convention is also, by definition, broad in scope. Even if the animating spirit of such an effort were electoral reform, a national convention could tackle a broad sweep of issues. In the fight to call a convention, organizers would have an opportunity to build broad coalitions. Issues like Presidential war powers and the scope of the interstate commerce clause could be on the table. So could abortion, the Second Amendment, and privacy rights. That’s a collection of topics that could interest a lot of otherwise apathetic voters.

Finally, the political effort would take place state by state, where populist forces are often strongest. There would be no need to have and win a national conversation, or to keep the momentum going nationally. A directed effort could get the ball rolling in a few small states, and as the movement picks up momentum, the fight could move on to wherever the ground seems most fertile. Slowly, as more and more states join, an idea that at first seems far-fetched could come to seem more and more mainstream.

This is a major benefit of a federal system, one which we’ve seen play out time and time again in the policy arena. Charter schools, gay marriage, no-fault divorce, and other important changes all started as niche projects in a few states and spread from there.

The major headwinds would come from establishment politicians, especially members of the federal government who wouldn’t welcome what would be, in effect, a temporary super-legislature with a remit much broader than their own. ‘Very serious politicians’ would decry such a plan as irresponsible and dangerous, and depict its proponents as radical extremists. The fact that a national convention could tackle a broad array of issues would be used by opponents to paint creative apocalyptic scenarios.

A national convention that bypasses Congress would strike at the heart of Washington’s self delusion that only it can save us. Whether it’s small-government types or tax-and-spend types, politicians of all stripes are deeply committed to the notion that the levers of power to change things or safeguard them must run through Washington, DC. But self-government is about much more than voters assenting to the rule of others. Self-government is about the principle that people should be deeply and intimately involved in the institutions that govern them.

No matter what party they belong to or what political ideology they espouse, politicians generally don’t favor that. It would be an ugly fight.

I have been consistently critical of rhetoric that reflexively vilifies politicians as a class. In the main, people who enter public life are probably motivated by admirable principles. But even if they’re not, it’s hard for me to imagine how broad cynicism about the character of politicians can help us attract talent to public office. Even so, any effort to call a national convention would have to have at it’s heart a rhetorical strategy that directly attacks the political establishment.

There are two reasons for this. The first is that an argument for an alternative legislative process must be premised on a recognition of the irredeemable corruption in the current system. The second is that if establishment politicians are not effectively sidelined in the lead up to a convention, they will have the inside track to convention membership. That obviously won’t do.

The dangers of this proposal, I readily admit, are real and serious, because the dangers of constitutional tinkering are immense. Last week, I made it clear that I do not favor a constitutional solution to our electoral mess, and so my proposal for a national convention might seem paradoxical.

Let me try to untangle that knot a bit. First, the supermajority of states required to adopt an amendment seems to me to be a sufficient safeguard against the risk that the country might, while caught up in a populist fervor, adopt poorly considered remedies. It seems that states could be pressured into support the idea of a convention, which is ultimately a call for dialogue, but would not be unduly pressured into adopting specific proposals.

In any event, the Constitution requires more states for ratification than it requires to actually call a convention, so supporters of any amendment language that came out of a convention would have their work cut out for them.

So what’s the benefit of calling for a convention to propose constitutional amendments if I don’t think those amendments are likely to be adopted, and if I don’t think that it would necessarily be such a good idea if they were?

The answer, in a word, is fear.

Politicians are naturally risk-averse and have a keen sense of self-preservation. A legislative process that they couldn’t control or participate in would represent an existential threat to members of Congress. A convention movement wouldn’t have to succeed to be successful; it would just have to credibly threaten that it might succeed at getting off the ground. At that point, all political observers would know they were entering uncharted waters with unknown risks. That might be enough to scare Congress into doing the right thing. After all, if Congress wanted to definitively derail a convention movement, all it would have to do is pass meaningful electoral reform. They don’t need a constitutional amendment to do that – just the proper motivation.

Is it a long shot? Sure, but isn’t it time to admit that that’s what we’re down to?

Follow Pedro on Twitter @IamPedroA.

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