Proposing Constitutional Change

In his new book A More Perfect Constitution (Walker & Company, 2007) Larry Sabato, the founder and director of the University of Virginia’s Center for Politics lays out a series of twenty-three proposals for constitutional revision. These amendments would, he argues, bring the Constitution into the twenty-first century by making the structures of our government more fair, more representative, and more effective.

Most of us are instinctively leery of major structural changes to the Constitution, and with good reason – it’s lasted for more than two centuries, and has served the United States well. At first glance, some if not many of Sabato’s proposals seem unnecessary, unpalatable, or both. But after reading his justifications for them, I was convinced by both the desirability and the necessity of nearly all of them.

Since Sabato’s stated purpose with his book is to promote a great debate over these ideas, and to prompt what he terms a “generational process of moderate, well-considered change,” I’d like to begin a discussion here of his proposals by outlining them in brief and adding my own views as they currently stand (I will admit that some of them changed just in the course of reading this book). I will attempt as much as possible to keep Sabato’s proposals separate from my own opinions so as not to influence others’ perceptions of his ideas, but I do encourage everyone interested in this discussion to read his book, where he makes his case in much greater and persuasive detail.

The proposals, after the jump.

The Proposals:

Congress
1. Increase the size of the Senate by adding two additional senators for each of the ten most populous states and one extra senator for each of the fifteen next most populous (to be determined by each census). Sabato makes the point that in 1788, the population ratio of the most to least populous states was 12:1; in 2004 it was 70:1. “Theoretically, if the twenty-six smallest states held together on all votes, they would control the U.S. Senate, with a total of just under 17 percent of the country’s population!” (pg. 24-25). By adding a population-based element to the makeup of the Senate, that potential situation could be corrected, and the increased membership of the Electoral College would make a “misfire” there significantly less likely.

2. Allow former presidents and vice presidents to hold the position of ‘national senator’, participating and voting in the Senate but not holding seats in the Electoral College. This is one of the few proposals where Sabato’s discussion didn’t convince me. While I like the idea of senators focused solely on national issues rather than state concerns, I am uneasy with giving former executives a permanent Senate seat. I do, however, like the idea of making them abide by Senate ethics rules and getting some benefit out of the hefty pension we provide them during their post-White House years). I’m certainly willing to be convinced on this proposal, but I’m not won over yet.

3. Mandate nonpartisan decennial redistricting for the House of Representatives based on the guiding principles of compact districts, increased partisan competition, and the needs of voters. My views on this question are probably well known enough that I don’t have to say again how important I think this reform is.

4. Expand membership in the House of Representatives to approximately 1,000 members (keeping staff resource allocations steady to level the playing field). I was disinclined toward this one at first (who wants more Congresspeople?) but admit that it doesn’t make a whole lot of sense to have one representative per 690,000 people in the chamber designed to best represent the views of the populace (in the first House, each member represented about 60,000). With 1,000 members, as proposed by George Will, each congressperson would represent a district containing about 300,000 citizens. As with Proposal 1, this increase would translate into a larger Electoral College as well, further limiting the chances of an unanticipated result there.

5. Establish “generous” term limits for representatives and senators. Sabato ends up largely punting on this question, offering an excellent discussion of the longstanding debate over the term limits issue at the national and state levels and suggesting that popular support for term limits should be understood and heeded, with specific plans to be determined. Personally, I think that redistricting reform would solve most of the problem (if districts are competitive, bad representatives are going to get booted while good ones will be rewarded with reelection if they seek it).

6. Pass a Balanced Budget Amendment, with necessary escape valves. One glance at the nation’s fiscal situation today should be enough to convince almost anyone that we need to get our budgetary house in order. Sabato ably dissects the many difficult issues which surround putting fiscal policy into the Constitution (enforcement, differing economic policy views, &c.), but in the end argues that such an amendment, “whatever the details … will be a powerful symbol that the nation values fiscal responsibility” (pg. 69). I’d prefer that the government simply do a better job of managing our money without putting such a mandate into the Constitution, but seeing how well that’s worked in recent years, I think this proposal is at least worthy of some very serious discussion.

7. Adopt a Continuity of Government procedure for reconstituting the national government in the event of a catastrophic event. Sadly necessary in this day and age. Sabato rightly suggests that a provision must be added to the Constitution which would provide for the passage of laws governing the replacement of dead or incapacitated legislators. This one shouldn’t require a constitutional amendment, but as Sabato argues that the Continuity of Government procedures should allow for the temporary appointment (rather than the election) of House members, constitutional imprimatur becomes necessary.

Presidency
8. Increase the presidential term to six years, “including a fifth-year extension referendum – that is, an up-or-down confirmation election – which could result in an additional two years in office for the president.” If the nation did not approve the extension, a regular election would be held the following year. Since this is intimately connected with the next proposal (which Sabato lumps with the Congress section but discusses with this one), I’ll consider them both together.

9. Lengthen House terms to three years (with a two-year term in the event of a presidential term-extension), and have all Senators elected whenever there is a presidential election (i.e. every six or eight years). This would mean that the entire House and Senate would be elected at the same time as the president. Sabato argues that adding a parliamentary-like cohesion to our electoral process is necessary; I do not agree. I like certain elements of these twinned proposals and not others: lengthened terms would allow legislators and the president more time to govern as compared to preparing their reelection campaigns, but I very much dislike the increased partisanship that would result from tying all elections together so closely. I would propose an alternative: increase House terms to three years as suggested, and the president’s term to six years, as suggested; for the Senate, switch from three ‘classes’ (one third of the total membership elected every two years) to two (one half elected every three years). I do like Sabato’s idea of an issues-oriented referendum on the president in the fifth year, but would add a year to the extension if granted in order to keep on the three-year schedule (and eliminating the weirdness of having occasional two-year House terms and eight-year Senate terms).

10. Add provisions to the Constitution governing presidential war-making powers and expanding congressional oversight. Sabato leaves most of the specifics of this idea up in the air, but suggests “there should be a time limit on unilateral presidential war making – ninety days appears reasonable – at which time Congress would need to either give its assent or, through a resolution of disapproval [an up-or-down vote in both chambers], cause the orderly withdrawal of American forces” (pg. 100). Sabato’s concluding statement on this question (”It is long past time to rethink the inadequate constitutional arrangement that was well suited to the eighteenth century but is out of step in the twenty-first”) seems on target to me.

11. Enact a line-item veto for appropriations bills. As with the sixth proposal above, it’s clear that something must be done to combat the rampant spending spree long perpetrated by Congress and permitted by overly-acquiescent presidents. Since the Supreme Court ruled against a legislatively-enacted line-item veto in 1998, achievement of this proposal by constitutional means is necessary. Sabato’s proposal includes an override provision (two-thirds of the House and Senate within thirty days), and the savings achieved through such vetoes would be used to reduce the national deficit or debt.

12. Eliminate the requirement that presidents be natural-born citizens, replacing it with a twenty-year citizenship floor. There are few places in the book where Sabato’s personal views show through so clearly as this proposal; he calls the constitutional provision mandating natural-born citizenship as a prerequisite for presidents and vice presidents as “archaic,” “unfair” and “a stain on our democracy.” This is another one where I’m willing to listen to more debate, but am not entirely convinced of its necessity.

Judiciary
13. Abolish life tenure for federal judges in favor of a fifteen-year term. Given the tremendous increases in life expectancy since 1787, this seems entirely reasonable and necessary. An important benefit of this would be to “encourage presidents to choose the best qualified of the available candidates, even if he or she was older” (pg. 115).

14. Allow Congress to set a mandatory retirement age for all federal judges. Sabato suggests that giving Congress the power to set a retirement age for judges (75 or 80 are the ‘logical’ ages, he says) is appropriate. I think this opens an unpleasant can of worms (fussing with the retirement age could easily become a partisan football), and frankly it seems as though this would eliminate the major benefit obtained through the former proposal (I can’t imagine that a president would appoint a 65-year old justice to the Court if he/she knew that the justice’s term would be limited by the mandatory retirement age).

15. Increase the membership of the Supreme Court to twelve. At first glance I didn’t think this made much sense (particularly making the number of members even), but Sabato makes the excellent point that having the potential for an often-evenly-divided court would actually be a good thing: in the case of a tie, the lower court’s ruling would be upheld and no precedent would be set. “Since fewer national precedents would mean less judicial intervention, a larger Supreme Court would take a somewhat smaller role in national life – which is probably a good thing for it and the country” (pg. 118). Fair enough.

16. Guarantee regular cost-of-living adjustments for judicial salaries. A highly-necessary reform that will end the unfortunate need for judges to beg Congress for pay increases.

Politics
17. Write political parties into the constitutional framework by adding an article governing partisan presidential elections. The following proposals expand on this one, but in short Sabato argues here that the election process should be guided by the concept that “every state and region ought to have essentially an equal chance, over time, to influence the outcome of the parties’ presidential nominations, and thus the selection of presidents” (pg. 130).

18. Enact a four-region primary system, with the order selected by lottery at the beginning of the election year. Primaries would occur in the four months preceding the August conventions (one region per month, with states choosing the specific day within their region’s month to hold their primary or caucus). Given the looming train wreck that is the 2008 primary process, I’m very favorably inclined toward Sabato’s scheme as laid out here. It would help to limit the length of the presidential campaign to a terrific degree, and would end the dangerous front-loading trend we’re currently seeing. To preserve the “retail politics” dynamic now evident in Iowa and New Hampshire, Sabato suggests that two small states be selected by lottery to hold their contests several weeks prior to the beginning of the regional elections.

19. Mend the Electoral College by increasing its membership, making the assignment of electoral votes automatic, and ending the ‘unit voting’ rule in the event of an election being thrown into the House. Sabato’s discussion (pg. 134-153) of the Electoral College is one of the best I’ve read (and as I wrote my undergrad thesis on it, I’ve read more than a few). He examines the various reform proposals (nationwide popular vote, assignment of electors by proportion of popular vote or by congressional district), but argues that instead of abolition or major change, several small tweaks can preserve the College’s benefits while greatly diminishing the likelihood that the winner of the popular vote would be denied the presidency.

20. Reform campaign financing by allowing Congress to limit “spending by the wealthy from their family fortunes, and mandate partial public financing for general election House and Senate campaigns.” Personally I would go further with this proposal than Sabato does and propose an amendment mandating partial public financing of federal campaigns as well as giving Congress the explicit power to limit self-donations, but his suggestions are certainly a good start.

21. Enact an automatic voter-registration system. Seems, at this point, like this should be a fairly easy thing to manage and not a bad idea at all.

National Service
22. Require two years of service from all young Americans, offering a wide range of civilian and military options. I’ve long been a proponent of this idea, and Sabato’s plan for a universal, flexible framework for national service with a number of different options for young people to choose from is a good one. He lays out various cost-benefit analyses of this sort of program, arguing that the investment returns alone would provide great economic benefits to the nation – not to mention the important benefits reaped by the young people engaged in service and those they help directly. Sabato offers a long list of potential organizations through which Americans could satisfy their service requirement (pg. 170), even suggesting the creation or revival of several additional options (Civilian Conservation Corps, an Urban Environmental Corps, or a National Service Disaster Strike Force). While this plan could easily be achieved through regular legislation, I think making it a constitutional-level commitment is worth considering.

Constitutional Convention
23. Call a Second Constitutional Convention using the state-based mechanism in Article V. Sabato makes the excellent point that Congress is simply unlikely to adopt a wide-ranging package of reforms as outlined here, and argues that the states should call for a convention to propose amendments instead (two-thirds of the states would have to submit a request to Congress for a convention). He spends much of the last chapter discussing how the convention might function.

Final Thoughts
I don’t agree with all of Sabato’s proposals; I doubt anyone will. I certainly don’t expect everyone to agree with my views either. But I do think these points are all worth debating, and I agree with Sabato that we shouldn’t simply accept the Constitution as it stands, but should examine how it works and what, if anything, we can do to make it better for the nation. Some of the changes Sabato suggests would, I submit, make our government work better, and I applaud him for putting out this plan for us all to discuss and consider. Whether anything will come of it remains to be seen, but certainly nothing will happen if we just ignore the proposals.