political noodling

[twoeleven]

rebeccmeister linked to a John Oliver (JO) screed about a month ago, and I finally got some time to do a little reading and post something intelligent about it. Since the odds look good that Forces of Less Bad are going to win the election, and probably the trifecta, it seemed like a good time to post this.

JO rants and raves about three things: the Electoral College, the Senate, and the Supremes. (He also rails against the Senate Republicans, but I don't have anything to add about that.) I'm going to take the topics in that order, and correct a few misconceptions about the Senate along the way. And then I'm going to add some related comments about the presidency.


I don't have a strong feeling either way. The current system is odd, but demonstrably mostly-working; changing it will produce new dysfunctions. The issue does seem to have a bunch of subtexts though, the biggest is that by somehow changing to a popular vote, Democratic(? liberal? progressive?) candidates will win more. Nah: if you change the rules of the game, people change how they'll play. Changing to rules that would have worked in the past doesn't say anything about how well they'll work in the future. The sports leagues tinker with the rules of their games all the time, and teams adapt. Presidential candidates will do the same.

I think there's also an odd subtext about presidential legitimacy, and winning the popular vote being the key to that. (I may be wrong about this; it's what I think I'm reading, but perhaps it doesn't exist.) I'm not sure that's true.

Suppose Trump had won the 2016 popular vote; it doesn't matter how, just pretend he did. Would he suddenly seem more "legitimate" in your eyes? Would everything he's done suddenly be OK because he had a popular mandate? Let's be honest: no, no, hell no! He'd still be the same loathsome stain on the undies of American history he is. I think the real issue of popular legitimacy, if there is one, is just a repeat of the previous point: people want more presidents like them, and they think that a popular vote is the way to get them. It ain't necessarily so.

What I would like to happen if people want a popular vote is to do it the right way: amend the Constitution. JO mentions an attempt at a treaty between the states to evade the Constitution, and that it faces legal challenges. It would and it should: it's an attempt to "renegotiate" a done deal, an attempt to evade the Constitution's requirements to get something illegal, in short, the same sort of nonsense that the aforementioned undie-stain has been doing. Let's not.

Yes, amending the Constitution will take work, and trying to replace the current allocation of electoral votes with a popular vote is hard, because the small states enjoy the advantages the current system gives them. But I'd rather spend a while arguing about it than continue the tendency of whoever grabs control of the government to run roughshod over whoever isn't in control. Call me an idealist if you will; I'll happy accept that my ideals of democracy aren't what we've got.

I think the battle will be a lot easier with a fix-up rather than a replacement of the electoral college. Require the states to allocate their electoral votes – let's ditch the actual electors; it's clear from Chiafalo v. Washington that they're superfluous at this point – proportionally to the state's popular vote. This would have fixed the previous two cases of presidents being elected "against the will of the people" and in general, fixes the system all but perfectly relative to a popular vote: the distinction between "safe" and "battleground/swing" states goes away, since all the votes are awarded based on how well candidates do in each state, and properly makes larger states are more important without them being overwhelmingly so. (Right now, California is unimportant, since it's a "safe" Biden state. Nobody's campaigning there, nobody cares what the Californians think, because their presidential fate is sealed.)

JO did whine a little about the last attempt to elect the president by popular vote, 50 years ago. I was curious what happened back then, so I looked it up. Despite JO's ravings that the US is and has always been dominated by small-state conservatives, the reality is a bit different:

"The 36 Senators who refused to end debate today were evenly divided politically 18 Democrats and 18 Republicans. It was almost entirely a coalition of Southerners and Conservatives from small states who had protested that abolishing the Electoral College would reduce their states political influence."

Yup, evenly-split bipartisan opposition. Because that's the the US isn't "big states left, small states right". Which leads nicely into a discussion of the Senate.


JO really likes to screech about the Senate and how it "grants disproportionate power to less populous states which tend to be rural and more conservative". He has no clue what he's talking about.

Let's look at two blocs of states, the ten largest and the ten smallest:

The top ten, largest to smallest, with their Senate party affiliations:

CA	2D
TX	2R
FL	2R
NY	2D
PA	split
IL	2D
OH	split
GA	2R
NC	2R
MI	2D

It's precisely split between Republicans and Democrats; each gets 10 senators. The same is true at the bottom, this time listed from smallest to largest:

WY	2R
VT	2D*
AK	2R
ND	2R
SD	2R
DE	2D
RI	2D
MT 	split
ME	split*
NH	2D

Ten of each, including the independents who ally with the Dems (*). In the middle, there are more states with Republican senators than democratic ones, but you really have to cherry-pick the data to make any sweeping claims about "rural bias" or "conservative bias" in the Senate.¹

Nor is there anything to the idea that this is a permanent thing. As everybody who isn't JO doubtless remembers, the Senate was Democratic from 2006 to 2014. There's some nice Senate maps and data on Wakipedia. A little study will reveal that the Senate doesn't have a conservative bias – it's more frequently liberal – and the political allegiances of small-state Senators also changes frequently.

In fact, the Midwest used to be fairly Democratic, and more recently, each Midwestern state has sent a senator of each party to Congress. The current pro-Republican tendency dates back to only 2012.

I'd also like to point out the The Republican Revolution, which is to say, in 1994 the GOP got its act together, came up with a unified platform, and ran on it. That gave the GOP their previous run of Senate majorities (with a couple two-year periods without.) Maybe, just maybe, the American left could try the same thing, rather than whining about imaginary "built-in biases" the US government doesn't have.

1: Going into that sanity check, I expected to find both coming out 12-8, Dems on top in the big states, and GOP on top in the small states. It's hard to overlook Texas among the big states, and I can assure you that Delaware is very much Democratic. But I was surprised by the even split.


And now, the good part: what to do about the Supremes, more commonly known as SCOTUS.

Lemme get this out of the way: go ahead, stack the Supremes. Stack all the federal courts for all I care; in fact, I wish you would. Have fun; I have my own revenge fantasies about how to stack the courts and what to do to the Republicans in the Senate if the Democrats win there too.

But I think we need some Constitutional changes. the Framers of the Constitution recognized the general tendency of people in power to go bad, but utterly missed most of the specifics. So, it's time to breathe some new life into the living document.

Since NLRB v. Noel Canning, effectively allowing Congress to remain in session indefinitely, we've need a way of forcing votes on presidential appointees and/or allowing them to hold positions temporarily until the senate does vote. Previously, the Senate would recess occasionally, and the President could make temporary appointments that way. Off the top of my head, give the Senate six months to consider an appointee, and if they haven't voted by then, that person fills the position until they do. This may not be an ideal solution, but is just a starting point for discussion.

After we've had our fun with the federal courts, I'd like to fix those too. I prefer fixed terms for the Supremes; I wouldn't mind fixed terms for other courts too, but since they have so many judges, that gets difficult. The best I've come up with looks like this:

Supremes: shrink the court to seven justices, with 28 year terms. Few Justices have held the office so long. If a Justice dies or retires, the President can appoint a replacement to serve the rest of their term. So, a President gets to appoint one Justice per term, plus possible temporary Justices.

And since I'm very much aware of the problem of conflict of interest newly appointed Justices have about the President who appointed them, I want two conditions. First, Justices' terms are set to expire during Presidents' third year in office. So, all Justice appointments are election year appointments, with all that implies. Second, newly appointed Justices may not take part in any part in cases involving their appointer for two years after taking office.

For the other Federal courts, which have 11 members, expand them to 13 judges, with 26 year terms. That gives each President two appointments per term, with all of the provisos for the Justices.

I'm not saying these are perfect fixes, but they're at least good starts for talking about Constitutional reform.


As we've seen, it's too easy for the President to run amok. Gerry Ford first noted the problem with respect to Nixon: if the President's party controls one house of Congress, he can't be impeached. We need a better method of removing Presidents from office, ideally one that avoids party control of Congress, and perhaps even party control of the states. Recall elections for suitable cause might work, but this is really a case that needs a lot of consideration.

And we do need a way for Congress to keep control of the President. The Justice Department was a quick fix after Nixon, but that's clearly broken, because the President can meddle with it. Perhaps each house needs an independent way of chasing after the President; perhaps we need to make the Justice Department an independent part of the Executive, with the Secretary of Justice answering to Congress, not the President.

Perhaps we need a fourth branch of government concerned solely with the ethical behavior of the other three branches. I favor this approach, even though it requires extensive Constitutional surgery. It may not be politically possible, but I'd like to hope some other Constitutional fix is.

And there's just a small problem with the courts too. Remember those emoluments cases against the President? It's getting close to four years since they were filed, and justice delayed is justice denied. In general, the US court system moves far too slowly, but when dealing with the President, time is often of the essence, because of the office's powers and ability to be corrupted.

Fortunately, there's a quick fix for this one: right now, cases against the federal government itself are heard by the DC Circuit Court, and from there, there only appeal is the Supremes. This seems like a fine fix for cases against the President: start them in the DC Circuit, and that's something Congress can change with just a majority vote.

Comments

[juli]

I read and enjoyed this, thank you!

[twoeleven]

thanks! but i thought you fled this nonsense for civilization. :)

[juli]

Something something America sneezes, something something a cold?

[twoeleven]

Tru' 'nuf, though I think of the Great White North as always cold. :)

[juli]

Well, like a bunch of Canada out your way, we're south of the 49th, so not really very north at all ;)