The Democracy Crayon

In the transportation community, especially rail and transit enthusiasts, it is common for people to publish maps of imagined future routes and services that one believes would be interesting or worthwhile to build, if money were no object. These are (somewhat derisively) called “crayons”, on the theory that a serious planner or engineer who was actually charged with designing or building something would use “proper” tools and have a whole suite of institutional support behind them to create something that looks “professional” and has a 300-page regulatory filing full of statistics and model data to accompany it. (The derision may in some cases be justified, as hobbyists are prone to drawing lines on a map where they would like there to be service, and not so much where a route is either justified or physically feasible. Sometimes, “what if?” really is just for fun.) But there are many other arenas of public policy where a member of the public who is not already a government official (or an academic) can legitimately have opinions and perhaps even contribute to the public debate by raising ideas and options that are not receiving their due consideration. We might well have laws, or constitutional arrangements, that we’d like to see, that arguably would be an improvement over the status quo. There’s been a lot of talk over the past few months about the state of democracy in the United States, and some of the barriers (insularity and “American Exceptionalism”) that cause us to be bad at building trains also cause us to be bad a building a functioning twenty-first-century democracy. So here is my “What if the United States actually cared about democracy?” crayon. (It’s also a bit of wordplay on “the democracy canon”, the legal theory advanced by some scholars that when the law is unclear, courts ought to choose the interpretation that advances democratic participation — e.g., allowing more people to vote rather than restricting the franchise.)

1. Everyone votes

The law should make clear that everyone has the right, and indeed duty, to vote. There must be no barriers, such as registration requirements or felon disenfranchisement, that that restrict the voting rights of any adult citizen. (And there are arguments to be made for striking both “adult” and “citizen” from the requirements as well.) In Australia, “attendance at the polls” is mandatory, enforced by a civil fine: no one is required to vote, but every citizen is required to cast a ballot (even if it’s blank). Compulsory attendance would also provide some direct accountability for local election officials who fail to provide sufficient polling places or other resources that are necessary to ensure that voting is not burdensome.

2. Abolish the Senate

The United States Senate is a uniquely anti-majoritarian institution, born of an 18th-century compromise that has long since passed its expiration date. As a mechanism to convince small states that their interests would be respected by a national government in which they were outnumbered five-to-one, after two centuries it gives a tiny number of voters in mostly empty states inordinate veto power over the majority. While the Senate could be reformed, by “one man, one vote” as in the 49 state senates, or by limiting the upper chamber’s powers as in the German Bundesrat, any reform likely requires unanimous consent of the states, and if we’re going to presuppose that, we might as well just abolish it entirely. The Senate serves no useful purpose and it’s not worth reforming. (And before you say “but it represents the states!”, no, it does not. It represents rural white people, and rich rural white people at that.)

If we’re going to get rid of the Senate, we need to find a replacement for some of the things the Senate currently has exclusive power to do. To a first approximation, that is ratifying treaties and confirming presidential appointments. We’ll need a multi-pronged approach.

First off, repeal the Appointments Clause. How executive-branch offices get filled should not be set in the difficult-to-amend Constitution; it should be by whatever means the President and Congress (i.e., the House) can agree on. But there are overall far too many political appointments in the federal government: a new president has to appoint about 4,000 people, and all but a few hundred of these jobs should instead be filled by career civil servants. One sticking point may be judicial appointments; most countries have a non-political judicial appointments commission or similar body to do this job; simply requiring an appointments commission to propose a candidate acceptable to both Congress and the President would serve the purpose better than the system we have today (where interest groups and senators associated with the sitting president’s party do much of the work). I would use the same body to handle judicial promotions, ending the practice of appointing law professors and politicians directly to the courts of appeals.

One other thing that the Senate does is hear impeachment trials. I would replace this function in two different ways: first, I would require heads of executive departments to maintain constructive confidence of the House. (“Constructive” here refers to the specific sense that it’s not permitted to just throw someone out of office, a “vote of no confidence”, you actually have to get a majority vote for a replacement. This is how the German chancellor (equivalent to a prime minister) is chosen, and disciplined.) For other officials that are currently subject to impeachment, the trial should be held in a regular court in front of a panel of regular judges, chosen by lot for the assignment.

Obviously, treaties can be ratified by the House. In practice, this is often what happens already, because most treaties are not self-executing, and require ordinary legislation passed by Congress to implement their terms.

3. Campaign reform

The Constitution should be amended to explicitly allow Congress and the states to regulate spending in, and the conduct of, their respective elections, in a politically neutral way, and to place reasonable limits on the duration of election campaigns. Campaigns for federal office should be exclusively publicly financed.

4. National popular vote for president

Some would argue that we should just get rid of the office of president altogether, or limit it to a ceremonial role like Ireland’s. But the US federal government is a very large and disjointed institution, and I don’t believe it can be effectively administered in a parliamentary style. This implies having a head-of-government with independent political legitimacy, and that implies having a popular vote. By preference, such a vote should be held by instant-runoff voting, rather than by a two-phase system (whether primary/general or general/runoff); this reduces the participation tax on voters’ time and also limits the length of the campaign. (Yes, I know about Arrow’s theorem, and I don’t accept that all of his desired properties are in fact desirable, so it doesn’t bother me that there might be strategic voting in such a system.)

Note that one of the side benefits of a national popular vote is that it reduces incentives for restriction of the franchise. In the current electoral college system, states are represented in rough proportion to their entire population, regardless of how many people are either actively or passively disenfranchised. With a national popular vote, every state’s incentive is for the greatest number of its citizens to vote, because this maximizes the state’s say in the outcome of the election. A state where a million people are unable to vote is a state that casts a million fewer votes in the ultimate total that determines the presidency. And of course this makes IRV for the presidency conceivable.

In order to make nationwide IRV actually feasible, there must be national ballot access standards for the presidential election, one rule for all 50 states, with no special exceptions for favored political parties or candidates. Every voter would have the same set of presidential candidates to rank, and states would report the number of votes for each observed ranking. (As little as two decades ago this would have been infeasible in storage and communications resources, but it’s trivial by the standards of modern computing systems.) Special protocols will need to be developed to audit and authenticate the totals, since recounts will not be feasible at the national level.

5. Enlarge the House

Ever since the Permanent Apportionment Act, the size of the House of Representatives has been stuck at 435 — with a very short period of a slightly larger House after Alaska and Hawaii were admitted as states, which immediately snapped back two years later. Before the Permanent Apportionment Act, Congress would pass an explicit Apportionment Act after every decennial census, generally increasing the size of the House to ensure that no state would lose any seats even as other states grew much faster. That practice was unsustainable: a House in which Vermont had three seats would be unmanageably large, much larger even than the British parliament (650 seats) although still not approaching the size of the rubber-stamp National People’s Congress of China (nearly 3,000 seats). But the so-called “Wyoming Rule”, requiring that the House be large enough for each member to represent the same number of people as the member for the least-populous state, would result in a still manageable 580-seat House and reduce the malapportionment that is due specifically to the minimum-one-seat-per-state rule. That rule itself could in theory be thrown out, but that would require creating some national body with the authority to draw House districts across state lines, and it seems reasonable to have states be the minimum granularity if we’re going to keep states as political entities at all.

6. Eliminate districts

The system of “first past the post” plurality elections in single-member districts inherently underrepresents minorities and minority views. Even when a minority is geographically compact, there are more minorities than districts and few minorities are both compact and numerous enough to be guaranteed a “majority-minority district”. Even when specific protected minority groups do manage to get a district drawn in which they can “reasonably expect to elect the representative of their choice”, that group may comprise distinct populations with diverging political interests and thus be unable to have their views and their identities represented simultaneously.

There is a straightforward solution to this, which is practiced in most advanced democracies (the US, Canada, and the United Kingdom are notable exceptions): get rid of the districts and elect representatives by proportional representation. Under PR, minorities of a sufficient size are ensured the opportunity to elect candidates of their choice regardless of their geographic compactness or dispersal. There are a few different schemes for this, and I propose two different ones, depending on the number of seats each state has in the House.

For very small states with only a single at-large seat (after expansion, that’s Alaska, North Dakota, Vermont, and Wyoming), use instant-runoff voting as in the presidential election. This isn’t proportional, because you can’t elect fractional representatives. (Other countries solve this by not having small states or by allowing multi-state constituencies.)

For all other states, the default electoral scheme should be Open List. For those who are not familiar with Open List, it is the system used in much of northern Europe at all levels of government. All parties and independent groups nominate a list of candidates (usually but not necessarily one for each seat). Voters vote for the candidate of their choice. The available seats are apportioned among the lists in proportion to the total number of votes received by all candidates on each list. (There are a few different ways to do this, and I’m glossing over the technical details, but it’s similar in principle to the way House seats are apportioned among the states by population, using a rule known as the d’Hondt count.) If a list receives fewer seats than it has candidates, then the seats are assigned to candidates in order of the total number of votes each receives. (Note that this works well with the “fusion” party system seen in New York and a few other states, because the same candidate can appear on multiple lists, and the votes for the candidate are counted separately for the purposes of list apportionment but can be totaled for the purposes of assigning seats within a list.)

For very large states, I would allow legislatures to create compact districts of ten or more seats, allowing some differentiation of representation between disparate regions of the state (e.g., north/south/west Texas, or upstate/downstate New York, or northern/central/southern California) while still maintaining enough seats to provide for proportionality and minority representation. A medium-size state like Massachusetts (12 seats under the Wyoming Rule) would not have this option, being too small to create multiple ten-seat districts.

Small states that are large enough to have between two and five seats (Arkansas, Delaware, Hawaii, Idaho, Iowa, Kansas, Mississippi, Montana, Nevada, New Mexico, and South Dakota, again under the Wyoming Rule) would have the option of filling those seats via the Single Transferable Vote — the multi-member analogue to instant-runoff voting, and the system used to elect members of the Irish parliament, the Dáil Éireann. The option is offered for small states because preference-based systems like STV are better at reflecting public opinion than list systems when there are only a small number of seats to be elected and individual candidates are much better known to the electorate.

There’s nothing to require states to adopt these reforms, but the 49 states that aren’t Nebraska should in fact abolish their upper houses, and should adopt proportional representation in multi-member constituencies as well. Some states might well be able to do this by citizens’ initiative today, although some states’ initiative process for constitutional amendments allows a veto by the sitting legislature.

Those are my proposals; what about yours?

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