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17 USC 102

Flawed Democracy, Part 4: A New “Bill of Rights”

April 17, 2017

 

 

Editor’s note: This article is the fourth and final part of a series by Alex de Ramon looking at the current state of our government and suggesting needed structural reforms to solve the many issues plaguing our current democracy. See parts  I, II, and III.

 

In Part III of this series, I proposed a modern Constitutional Convention that would reformulate our system of government and adapt its methods for our new reality of a far more interconnected world, new conceptions of what government should provide, and decreasing norms of civility due to a frightening increase in partisanship and fearmongering. However, this would be a radical step that would realistically require a much further breakdown of the government’s ability to legislate efficiently (or even at all) to be considered by our political leaders and a majority of “we the people”.

 

In order for us to not reach that kind of crisis point, another possible road to travel down would be a well-organized, grassroots push for a new set of Amendments. Make no mistake, this would also be a difficult proposition that would require support from established political groups, massive organizational action and persuasion, and a huge effort to get our elected leaders to actually recognize the need for change. To be fair, some of them do realize the need for certain changes: many Democrats support overturning the Citizens United decision through an amendment, while some Republicans have come out in favor of congressional term limits. But getting both parties to support all of these changes would require unprecedented levels of pressure. Given how opposition to Trump has (to an extent) reinvigorated citizens’ attention to politics and civil society organizations, this may not be as much of a stretch as it has seemed in the last few years. Nevertheless, it would be an uphill battle.

 

But let’s get into what these Amendments would be. In short, I believe a new “Bill of Rights” would establish the right to one person, one vote; the right to a truly representative democracy that considers people before special interests and corporations; the right to a cooperative government that focuses on issues rather than scoring political points; and the right to limit limit “career politicians” and their grasp on power through term limits. Without further ado, here are the Amendments that I think would get our government back on the right track. (Note: I will try to mirror the typical language of Amendments, but the exact language of the Amendments could always be fine-tuned so that they have the desired legal implications.)

 

Amendment XXVIII: Gerrymandering

 

Section 1. Representatives shall be apportioned among the several States according to their respective numbers excluding American Indians not taxed. The district creation process shall be entrusted to politically neutral, independent commissions. Districts shall not be created or changed so as to enhance personal or political gain.

 

Section 2. The Congress shall have the power to enforce this article through appropriate legislation.

 

My Rationale: Yes, gerrymandering is something of a typical target for government reform, and simply fixing it alone will not directly solve how partisan our Congress has become. But it is still a blatantly corrupt form of drawing districts, and I believe we as citizens deserve better. Ending gerrymandering is a long-overdue reform, and if nothing else, it may be a step towards restoring public faith in government institutions, along with the rest of these reforms. Once public faith is restored, this will lead to greater efficiency and satisfaction with how our government works, if not what it is accomplishing.

 

Amendment XXVIX: Advice and Consent

 

Section 1. When the President appoints Officers of the United States pursuant to Article II, Section 2, the Senate shall give its advice and consent, if it so chooses, within two months of the President's respective appointment, after which time, the appointed Officer shall be either accepted or rejected in a full vote by the Senate. 

 

Section 2. If the Senate fails to conduct such a vote within two weeks after the two-month deliberation period described in Section 1 of this Article, the President may assume the consent of the Senate and elevate the Officer to their appointed position. 

 

My Rationale: Stonewalling is an incredible abdication of constitutional duty. This doesn’t just apply to Merrick Garland and the later, related fight over Neil Gorsuch, as Loretta Lynch and many other nominees from both Republican and Democratic administrations have had to wait ridiculous amounts of time to get through the process. Usually, these kinds of fights are not about qualifications or other legitimate concerns: they are simply partisan ploys. Because it does not make sense for Congress to enforce rules on itself, I included the second clause that establishes a presidential “check” to enforce it. To be short, it is pretty clear to me that Congress often has a quite lax schedule. The least they can do is confirm nominees, and I do not think it is appropriate for Congress to shirk this most basic of duties. While crafting legislation on big issues like health care and the budget takes time, confirmation hearings should be relatively straightforward. We should not have to tolerate petty partisan fights over simple appointments.

 

Amendment XXX: Congressional Term Limits

 

Terms for both Senators and Representatives will now be four years. No person can be elected as a Representative more than twice, and no person can be elected as a Senator more than three times. No person who has held either office, or acted as either Senator or Representative, for more than two years of a term to which some other person was elected as Congressperson shall be elected to that office more than once.

 

My Rationale: Term limits themselves are an understandable concept, and I tried to mirror my language off Amendment XXII which does the same thing for the office of the President. Passing term limits was actually a campaign promise by President Trump, and almost 75% of voters support the concept. That being said, there has to be a balance between limiting reelection and having government suffer from constant inexperience of new legislators. For example, Mexico repealed a law that banned lawmakers from running for re-election entirely, which clearly had problems as they were then unaccountable and had no incentives to keep promises. While there is room for debate here, I think my numbers are a solid middle ground. For Senators, 12 years is the equivalent of two terms, and for Representatives, 8 years is the equivalent of 4 terms. As to why I adjusted the length of terms themselves, I think there are tangible benefits to doing so. Representatives are almost constantly in campaign mode due to being reelected every two years: part of this has to do with the inane length of our campaigns (which will be addressed later), but another way to ratify this is to simply give them longer terms. If we give both Senators and Representatives equal length of terms, there will be no more midterm elections. Midterm elections are bad for many reasons: they are decided with fewer voters, they have come to reflect a basic and knee-jerk reaction against whoever is in office, and they heavily favor incumbents. Eliminating midterms will give politicians more time to deliver on their promises and actually govern rather than campaigning. It will also help keep American citizens sane by giving them a break from the constant electoral cycle.

 

Side note: on this amendment, I must acknowledge the compelling book American Democracy in Peril: Eight Challenges to America’s Future by William Hudson for influencing my thinking on this topic. Hudson proposes similar ideas about term limits and has many other interesting ideas on government reform. (I would recommend the work for anyone interested in the kinds of ideas I propose here, or government reform in general.)

 

Amendment XXXI: Citizens United

 

Section 1: The Congress shall have the power to regulate, by appropriate legislation. the spending of money intended to influence election campaigns to avoid the corruption of public officials.

 

Section 2: Nothing in this article shall be construed to abridge freedom of speech or freedom of the press.

 

My Rationale: Overturning one specific Supreme Court case seems like a narrow way to attack this issue. Rather, this wording gets at the resulting political implications of the case. While this Amendment essentially reverses the Court’s ruling, I believe it is most important for the future. I think the interpretation of the First Amendment given by the Court’s ruling on this issue is fundamentally flawed, but simply overturning the ruling does not protect the underlying concepts in possible future cases. Precedent is important in the Supreme Court, but this issue is so contested that I believe this protection is necessary.

 

However, campaign finance law is complex and I do not believe that the Constitution is an appropriate place to get into the practical details and rules behind it. This kind of fundamental basis is all that is needed.

 

Amendment XXXII: Electoral Reform

 

Section 1. The Electoral College as described in Article II, Section 1, Clause 4 shall no longer exist. The 12th Amendment is hereby repealed.

 

Section 2. Presidents are to be elected on the basis of a nationwide direct popular vote by a ranked choice system. In elections for President, voters shall rank the candidates in order of their preference, with a ranking of first being most preferred. If a candidate receives a majority of first-ranked votes, they shall be elected. If no candidate immediately receives a majority of first-ranked votes, any candidate who receives less than 5% of the first ranked votes shall be eliminated from consideration, and the votes of those citizens who ranked these newly eliminated candidates first shall be awarded to the candidates whom these citizens ranked next. If no candidate then receives a majority of highest ranked votes, the candidate with the least number of highest ranked votes shall be eliminated from consideration, and the votes of those citizens who ranked this newly eliminated candidate highest shall be awarded to the candidates whom these citizens ranked next. If still no candidate receives a majority of highest ranked votes, the next lowest candidate shall be eliminated, and the votes of those citizens who ranked this newly eliminated candidate highest shall be awarded to the candidates whom these citizens ranked next. If after this third elimination no candidate receives a majority of highest rankings, the candidate with the greatest number of highest rankings shall be declared winner of that election.

 

Section 3. Senators and members of the House of Representatives shall be elected by a ranked choice voting system as described in Section 2 of this article.

 

Section 4. Primary elections are to be held nationwide, on the second Tuesday of May. Candidates will be expected to announce campaigns at no time before the calendar year in which the actual election is expected to take place. After the primary election, whichever candidate wins the most delegates will win the nomination, with the political parties free to establish other  rules as they see fit. However, delegates should only be permitted to be chosen on the basis of the people’s vote, not based on higher party members’ affiliations (i.e. “superdelegates”).

 

Section 5. Presidential elections will be held on the second Sunday of November. The several states shall register to vote all citizens aged 18 or older. The Congress shall have the power to mandate that eligible voters vote in presidential elections.

 

Section 6. The right of the people to vote shall not be infringed for any reason, including criminal conviction.

 

Section 7. The Congress shall have the power to enforce the provisions of this article through appropriate legislation.

 

My Rationale: In my opinion, this is the most important amendment. Having paid close attention to the 2016, many rules and processes seemed very outdated and arbitrary in my regard (superdelegates, ex-felons who are stripped of voting rights, the Electoral College, etc.). Section 2 takes a step towards smaller party representation: some more drastic options include switching to a PR system of elections. However, I think ranked choice voting is a reform that is significant enough to make change but not drastic enough to completely overhaul the existing system.

 

For Section 4, I included this because it would be a much simpler way of doing primaries. It would shorten election cycles and be a more equitable way of choosing candidates. Iowa and New Hampshire should not have the amount of influence that they do in the primary system, obviously. Similarly, Section 5 includes reforms to try and encourage an increase in turnout. Obviously, the dates that I picked are somewhat subject to debate, although I believe it is important that the general election date is placed either on the weekend, or it becomes a federal holiday, in order to incentivize as many people as possible to come out to the polls.

 

Amendment XXXIII: Amendment Reform

 

Section 1. The margins in Article V for proposing and ratifying amendments shall be lowered to sixty percent and two-thirds, respectively.

 

Section 2. The President or the Congress may propose Amendments to this constitution to be ratified by a national referendum to be held concurrent with the next presidential election. Such a referendum requires three-quarters approval to be ratified.

 

My Rationale: Amendments themselves are very hard to pass. In fact, this amendment may need to be passed first in this sequence in order to give the other amendments a more realistic chance of passing. In terms of Section 2, a nationwide referendum would be a more modern and more democratic way to ratify amendments. However, I am cognizant of the danger of making it too easy to pass amendments, which is why a put a relatively high threshold on this method as opposed to state ratification. In this way, only amendments that have overwhelming public support can pass by a direct nationwide vote, and it is unlikely that this number of people will want to make radical changes to the Constitution.

 

Amendment XXXIV: Abolishing the Legislative Filibuster

 

The legislative filibuster is hereby abolished. The respective houses of Congress shall impose limits on their members such that a singular member may not indefinitely halt a house’s business.

 

My Rationale: I realize that this one sounds a little scary. But consider the legislation that would have passed without a legislative filibuster under Obama: the DREAM Act and the public option under Obamacare would have become law, among others. For conservatives, consider the opposite end of the spectrum. Ending the filibuster will also result in less finger-pointing between the parties and more accountability. If parties or presidents fail to enact their agenda, they will not be able to quickly accuse the other party of obstructionism, and it will be easier for voters to make informed choices at the ballot box. And while passing certain laws will become easier, it will also be easier for the opposite party to repeal when it inevitably returns to power down the line. In this way, getting laws passed that have bipartisan support will still be incentivized and encouraged.

 

I think the most important reforms that our government needs are listed above. They begin the process of making our government both more responsive to the people and more directly democratic. In certain ways, the influence of parties and their donors are limited in favor of citizens. In this way, the playing field will be tilted more equitably, and the existing status quo will change in various ways.

 

If you read my entire series, thanks for sticking around! If not, I highly encourage you to read all four parts, as I think they will make up a cohesive whole. But given the nature of my series and this article in particular, I would be happy to hear what others think about the above amendments. Did I overlook anything, or are there other additional amendments that you think are of the same importance? In the ones that I did write, are any specific safeguards needed? Or do you dislike any of my suggestions? Feel free to leave a comment below and say what you think.

 

Photo credit National Archives

 

 

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