How to fix the American system without amending the Constitution

This piece will be short on analysis and long on proposals. If you need more explanation of why the American system of government is in need of repair, I think this piece will not be for you.

I will, however, spell out one overarching theory undergirding these proposals: the American system is suffering from a chronic mismatch between what people think they are doing when they are voting and what they are actually doing. The Constitution was not built as an instrument to facilitate mass democratic engagement with a nationalized, centralized, large, and heterogenous polity, but the latter is what in fact we currently have, and it’s not going away.

Unfortunately, the Constitution is extremely hard to amend, limiting ways to address this issue. Fortunately, the Constitution is brief and vague in many places, meaning there are ways to slip into its cracks and, with the right reforms in place, jujitsu its rigidities and divisions into a defense of a new order.

With that in mind, there are three goals to the following proposed reforms:

  • Reduce the relative power of the Senate.
  • Increase the relative power of the House.
  • Create a system much more amenable to multi-party democracy.

With substantial movement towards those three goals, American democracy under the current Constitution — and one that manages to square at least some of the Constitution’s key elements with the radically different environment it governns — still has a shot.

The first proposal here is the most complex, perhaps the hardest to swallow, but the most immediately important. The Senate is, as is widely acknowledged, the foremost obstacle to any reformation of the American system towards a better alignment with democratic ideals and outcomes, and also the most difficult. Most other proposals for disempowering the Senate without amending the Constitution involve the instrumental addition of states or division of existing states, a confuddling kludge that ultimately erodes legitimacy and weakens the system as a whole.

Instead, what is needed is a permanent solution agnostic to how the specific composition of any particular political moment relates to arbitrary state geography. Fortunately, such a solution is available to us. What should happen is this:

  • A law should be passed.
  • That law should have two major provisions.
  • The first provision shall contain the text of a resolution the Senate would pass within the first ten days of every seating of a new Senate.
  • That resolution would have the Senate automatically, without any further action, deem every piece of legislation passed by the House during that entire two-year Congress as passed by the Senate within five calendar days of its passage of the House.
  • That resolution (again, as specified by the law) would also specify that the Senate could, on a case-by-case basis, rescind such concurrence for an individual bill within that five day window — subject to a two-thirds vote in the Senate.
  • The second provision of the law would state that, notwithstanding any other legislation, appropriations, or Congressional action, if the Senate fails to pass that resolution within the first ten days, the government instantly and completely shuts down until it passes that resolution.

The key insight here is that this is a law. That means passing it might be hard, since it would require the Senate to consent in the first instance — but much less hard than amending the Constitution, or establishing a new state. But further, because it’s a law, undoing it would require the consent of both the House and the President.

What’s also nice about this solution is that it allows the Senate to continue performing its other Constitutional functions precisely as before — consenting to treaties, confirming appointees, sitting as the jury in impeachments, and general oversight of the government. These are all fine functions for an upper house of a legislature, even one that, like the Senate, is far-from-ideally constituted, and real enough that the smaller states that would lose out in their leverage over legislation would still have levers of disproportionate leverage over the government at their disposal — plus the ability to occasionally still shank a bill. But they couldn’t stop all business of governing through sheer inaction. That’s the key.

It is probable that passage of this law would result in, give or take, a single attempt by a future Senate to resist it, causing the shutdown, and that it would take some degree of willpower by the House and President to shift the blame firmly onto that Senate and refuse to pass piecemeal appropriations to lessen the pain. But if the House and President can stand strong that one time, it’s likely that they’ll win the fight, and that no future Senate will dare try it again. Indeed, over time, the ideal situation would be for this particular forcing mechanic to recede into the background, with the norm that the Senate is a supervisory upper house that performs several important legacy functions but only rarely intervenes in the legislative process becoming firmly enshrined. In fifty years, civics will be taught as ‘the House passes bills, the Senate does other stuff’ and only the insufferably nerdy kids will know exactly why.

Once you’ve done that first thing, the rest of these proposals fall in pretty easily. You don’t even have to spell them out in too much detail. There are three basic prongs, each a federal law (or a package of laws):

  1. Invert the 1967 Uniform Congressional District Act to require every state to become a single multi-member district for House elections.
  2. Strip funding from any state that does not pass a modified version of the National Popular Vote Interstate Compact that provides for a two-round presidential election.
  3. Unwind certain aspects of the administrative state, returning some of its delegation from the President to the Congress (effectively, to the House).

That a country as large and heterogenous as the U.S. has only two political parties is deeply entangled with its current woes, both cause and effect along the downward spiral. It is important to note, however, that the most common explanation for the bipolarity of U.S. politics — Duverger’s so-called law — is, if not simply wrong, plainly inadequate as an explanation for the extreme nature of the U.S.’ two-party hegemony. You would be hard pressed to find another remotely-comparable country that a) also relies on first-past-the-post single-member districts to elect its federal legislature and b) has a strict two-party lock on power at the national level — and that’s before accounting for regional variation. The Vermont Progressive Party, currently with two of 30 state senate seats and seven of 150 state house seats, is currently the most successful third party in U.S. politics. Two other parties have exactly one state legislative seat. In the entire country. The Republican and Democratic parties, or non-partisan or independent candidates who affiliate or caucus with them, control 7,308 state legislative seats. (There are 7,383 such seats in total; there are some vacancies in there; the point is made.)

But all that being said, the solution to America’s duopolistic politics may nonetheless require, or at least be easily facilitated by, measures to decrease the reliance on FPTP voting. And while there are a myriad of proposed systems to do that — and acknowledging that this next bit is the kind of thing that gets you in trouble on the internet — most of them stink. After you toss out the unconstitutional ones, you mostly find solutions that are too confusing to voters, create too many possibilities for weird edge cases, or simply don’t leave voters feeling like their votes connect to outcomes.

Making every state elect its delegation as a proportionally-allocated parliament in miniature is intuitive, simple, and effective enough for all the states large enough for this to matter. And for those that don’t, the possibility of several other parties flourishing in other states could, at the very least, change which of the two parties are competitive for the single at-large seat in the smallest states, or for the second of the two seats in the next smallest states. This doesn’t solve everything — it doesn’t even expand the House, which would be a good idea no matter what system governs its elections — but it’s good enough and more than doable.

The second measure also attacks the duopoly while also attacking the plainly idiotic Electoral College, but let’s be frank — it’s not at all clear that holding states hostage to passing electoral reforms of this nature is, in fact, constitutional. At the very least it certainly could come down to the specific composition of the bench. What’s important, however, is not whether this sticks; it’s the demonstration of political willpower that it represents.

The thing about doing the NPVIC as a movement for a two-stage election as opposed to a simple plurality popular vote is that the former is much, much better as a means to not just empower all voters but to allow for pluralistic democracy, but it also has a logistical snag: what if some states decline to participate in the second round? The trick is that they have to be shown that not only is this the way it’s going to be, but that painful measures can and will be exerted to force the issue.

Therein lies the magic of bullying: a movement that could get a bill through Congress that reaches this far to bully the states into electoral reform is also a movement that will get electoral reform. Indeed, other measures — like a law from the biggest states allowing voters from states who haven’t certified a formal runoff to participate in theirs — could also be used. There can certainly also be carrots — the federal government will pick up the tab on every state’s runoff and throw in some free highways to boot!

But this is important. The power and centrality of the Presidency is perhaps the single-biggest vector in America’s uniquely rigid and fierce duopolistic politics. As the head of state and government, and to increasing numbers the embodiment of the polity itself, the extreme importance of ‘who is the President’ is extremely discouraging to third-party voting at the Presidential level, which in turns discourages third-party voting at every level. Ultimately, if we want more than two parties to flourish in America, we need to seek an equilibrium in which at least three of them are going to have to have a serious crack at getting a President elected.

The last measure is the vaguest because it’s the least important in the short-to-medium run, but over the long term could be the most important for ensuring the stable health of America’s political system. The President, simply put, is just too powerful; there needs to be less at stake when electing a President, both in scope and scale. This was, in fact, what was intended when the Constitution was first designed, but they made the terrible error of creating a legislature prone nine-tenths of the time towards hopelessly immobilized muddle. That this has persisted for two-and-a-half centuries is, in the full light of history, no endorsement; without delving too much into ancillary matters, what really matters is the past century or so of advanced industrial society that requires a much greater density of active, detailed engagement from the regulatory state, and it’s only in the past few decades that strange and bespoke factors keeping our politics a surprisingly-productive gibberish melted away, leaving a system that requires the rarest of syzygies to produce anything like major legislative action. That Congress has, intentionally or by default, delegated huge swathes of essentially legislative power to the executive branch has been the only thing keeping the lights on even as it exacerbates the tensions pulling the system apart.

That has to change. And, with a declawed Senate and an elevated multi-party House, the President can and must be humbled. Not neutered, but reduced to performing the core executive functions of government. There are a million models of how this could be done — there exist many legislative agencies, and could easily exist many more — but the specifics hardly matter. If we’ve gotten to the point where we’re debating the details on this, we’ll have already won.

One conclusory note: nothing above addressed the courts as something needing fixing. The short version is that, as far as the above package of proposals go, they really don’t. The major structural reasons the courts have become a major vector for assertive veto power in our system is the build-up of ossified infirmities that have rendered the system so unworkable. Ideally, if something like the above were to occur, the courts could safely retreat to a more reactive exercise of a somewhat-narrower vision of judicial power, ending the arms race that has made the courts such a hot fulcrum in the system today. And the package leaving the courts alone protects their legitimacy, subjecting the more-democratic parts of the government to democratic modifications to improve their democratic nature, while subjecting the deliberately-less-democratic parts to benign neglect.

The exception to that being the possibility that the courts would shoot this whole business down. That seems unlikely (with the exception noted above), but it’s not impossible. In that case some vigorous signaling about court-packing may be necessary to instill the correct discipline and keep the courts in their place. The Constitution is a system of government; it is not a suicide pact. The courts require a Constitution to defend; if they cannot have one that works for the modern age, they may be left with nothing at all.