#291: Fixing Our Democratic System
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Vox's Ian Millhiser recently published an 11-point proposal for fixing American politics. I've whittled it down to a basic outline, in black. Click the link to read the full details. My grades and comments are in green:
1) First things first: Get rid of the filibuster
Should Democrats win a majority in both houses, eyes will turn to the Senate, which will have to choose between unraveling the filibuster — which typically prevents any legislation from becoming law unless it is supported by 60 senators — and unraveling hope that major voting rights legislation, or any other big progressive legislation, will become law.
B+ Vox's Ezra Klein has written out the full case for elimination, here. Unfortunately, he hasn't read this blog's suggestion to keep the filibuster (Lower the vote threshold from 60 to 50 for legislation that follows the best science--determined by top scientists empaneled by Congress; this would be similar to the CBO's economic analysis, but applied to science, rather than money). What would he think? He does discuss the Senate's built-in Republican edge--even given statehood for DC (another two Democratic senators)--which would likely mean deep regret once Republicans are again in the majority.
Klein and Millhiser would probably argue that voting rights must be addressed in 2021, and that requires the filibuster's elimination. But why not create a third congressional body (after the CBO and the Science Advisory Council) composed of ten representatives, one each to be chosen by ten minority organizations (NAACP, NOW, and so on). Any legislation impacting minority rights would be subject to a 60-vote filibuster, unless receiving thumbs up from any of the ten members (one less vote required, on a 60 - 50 sliding scale, per thumbs up from members).
And, of course, if the filibuster is kept--perhaps the Democrats don't have enough votes to eliminate it, Norm Ornstein's idea of requiring 41 'no' votes be present to stop a filibuster, rather than 60 'yes' votes, would mean effectively lowering the 60 threshold into the mid- to upper-50s (as older senators are unable to stay at their desks for days on end).
2) Stop voting rights violations before they happen
...[R]equire states and localities with a history of racial voter suppression to “preclear” any new voting rules with the Justice Department or with a federal court in Washington, DC. [using] a new formula: jurisdictions with “fifteen or more voting rights violations” in the previous 15 years, or states with “ten or more voting rights violations” if at least one was committed by the state itself, [would] be subject to preclearance.
A. Ideally, this wouldn't be necessary, but evidently some politicians can't help themselves.
3) Eliminate registration as an obstacle to voting
At least 21 states plus the District of Columbia permit voters to register to vote on the same day that they cast their ballot — eliminating the need to register in advance.
A+ There is close to zero double-voting, while disenfranchisement is all too common.
4) Make it as easy as possible to vote
Thirty-nine states plus the District of Columbia allow early voting — in-person prior to Election Day. All but nine states either automatically mail ballots to all registered voters, or allow any voter who wishes to vote absentee to request a ballot.
A+
5) Stop running elections on the cheap
A Democratic Congress [with] few constraints on its ability to borrow money during a period of low inflation and even lower interest rates, would be well-positioned to provide [sufficient] funds.
A This would include things like voting machines that can't be hacked.
6) A tax credit for all voters
Congress could provide a tax credit of $60 to everyone who casts a vote. As a bonus, Congress could make this a refundable tax credit — meaning it would be available to the poorest Americans who pay little or no income tax.
A- A bit costly (~250 million x $60 = $15 Billion), but probably worth it. Cheaper version: random drawing for US savings bonds (ten $1,000 winners in each congressional district = $4.35 billion).
7) Fix Senate malapportionment
The Senate...effectively gives additional representation to white [rural] Americans, and dilutes the voting power of people of color.
Democrats have rallied behind a partial solution to this problem — statehood for the District of Columbia. The Democratic House voted to make DC a state in June, and Congress has the power to make DC a state through ordinary legislation.
More radical solutions are possible, for example, breaking up larger states such as California into smaller [units]. Absent such solutions, the Senate will continue to over-represent white conservatives and potentially even become a permanent bastion of Republican Party power.
B+ A perfect solution is all but impossible. DC statehood is probably the least bad idea. And don't forget this blog's retirement-homes-for-Black-and-Native-Americans solution.
8) Allow states to neutralize the Electoral College
The popular vote loser has become president in two of the last five presidential elections.
A recent study by three University of Texas researchers found that a Democrat who wins the presidential popular vote by 3 percentage points still has about a one in six chance of losing the Electoral College. [And] there's a small chance that a Republican president will be elected even if the Democratic candidate wins the popular vote by as much as 6 points.
A proposal known as the National Popular Vote Compact would allow states to effectively neutralize the Electoral College. It works like this: A bloc of states that control a majority of electoral votes all agree to allocate those votes to the winner of the national popular vote.
Currently, 15 states plus the District of Columbia, which combined control 196 electoral votes, have signed onto the compact. The compact will take effect once a bloc of states that control at least 270 votes sign on.
A- Unfortunately, those last few states (totaling 74 or more electoral votes) will be almost impossible to round up. But no harm fighting the good fight.
9) Stop gerrymandering
States must redraw their legislative districts at least once every decade to ensure that each district has roughly the same number of people. That means the party that dominates the election prior to a redistricting cycle can often entrench its own power by drawing maps that neutralize many of the other party’s voters.
Unlike the problems of Senate malapportionment and the Electoral College, however, congressional Democrats have rallied behind a potent solution to gerrymandering, at least in federal elections: require nearly every state to use a 15-member redistricting commission to draw US House districts. This commission [would] include equal numbers of Democrats, Republicans, and independents, and, at least one member of each party and one independent [would have to] approve final maps.
A+
10) Public financing for candidates
Supreme Court decisions like Citizens United v. FEC (2010) have largely gutted our ability to keep wealthy donors from having a disproportionate impact on elections. The most commonly cited concern about money in politics is corruption, because the need to raise money forces politicians to ingratiate themselves to big donors if they wish to remain in office.
One way to mitigate this problem is public financing, which provides additional funds to candidates who agree to certain restrictions on their ability to raise money from large donors.
Under [proposed] legislation, qualified candidates receive six dollars for every one that they raise from donors who give $200 or less.
A+
11) Prevent Trump’s judges from sabotaging voting reforms
While the Constitution created the Supreme Court, it only provides for “such inferior courts as the Congress may from time to time ordain and establish.” Thus, because lower federal courts are entirely creations of Congress, Congress may determine the scope of any lower court’s jurisdiction.
It could, for example, strip courts that are known to be stacked with Republican partisans of jurisdiction to hear any lawsuit challenging new voting rights legislation. It could also require all such suits to be brought in the federal district court in DC..., where reactionary judges likely to toss out voting rights laws for partisan reasons can be outvoted by their more numerous colleagues.
Alternatively, Congress could create a new court — call it the “United States Court for Voting Rights Appeals” — and route any lower court decision challenging a voting rights law to that Court, which would be filled with new judges appointed by the sitting president.
In any event, a Democratic Congress will need to think hard about how to deal with partisan judges if it doesn’t want its laws to be quickly sabotaged by those judges.
B- This attempt at solving the problem of knuckle-draggers in judicial robes needs one more thing, a way around the arch-conservatives on the Supreme Court. Otherwise, legislation will be, time and again, nipped in the bud.
Addressing the problem by adding additional judges could take either of two directions:
* The maximalist approach (13 seats, instead of nine). The chance of passage would be smaller, but the result much more satisfying.
* The minimalist approach (11 seats, instead of nine). This would limit the worst of the damage, and have a good chance of passing.
If taking the minimalist approach, Merrick Garland, who should rightly have been confirmed in spring of 2016, could be the first of two new justices. The other would create the +1 margin that Garland would have brought with him. By limiting it to just two, Democrats appear fair, self-restrained, and are much more likely to accomplish their goal of balancing, since they wouldn't have the internal resistance within the party (and elsewhere) that could easily prevent something bolder.
If taking the maximalist approach, Democrats would need a large majority in the Senate, as there'd be conservative Democrats who would be reluctant or even hostile to "court packing" (though it should probably be referred to as "court balancing", or a "judicial fix").
Or, instead of adding judges, legislation could strip judges of authority over certain legislative areas, or impose super-majority thresholds.
