July 5, 2023
Are Political Reforms Possible in American Democracy?
Philip Kotler
In 2016, I published Democracy in Decline: Rebuilding its Future. My aim was to describe the unique American democracy created by our 1787 Constitution. I wanted to celebrate American democracy’s uniqueness and point out some of its main weaknesses. Since that time, over 11,000 amendments to our Constitution have been proposed according to the historian Jill Lepore’s research on the Amendments Project. Yet only 27 amendments have been passed by Congress and the states.
In spite of needed improvements, our constitution seems to be frozen in time. Even the proposed Equal Rights Amendment in 1972 was derailed. Although 148 of the world’s 196 national constitutions include a provision for environmental protection, the U.S. constitution has no such provision. Many think that the U.S. Constitution is likely to be unamendable.
After our framers passed the Constitution, Thomas Jefferson advised that the American Constitution should be reviewed every 20 years for needed changes. Such a review has never happened. So many changes have occurred in American history that call for new thinking. Today we need to think about abortion rights, gun policies, the debt ceiling, climate change, new technologies, term limits, presidential pardon power, filibusters, gerrymandered voting districts, and the like.
Some commentators have accepted the stalemate by saying that new thinking and practices still take place even without passing amendments. They point to the Supreme Court’s habit of coming up with new interpretations of the existing statutes. For example, the constitution permits the carrying of guns by members of militia units but this has been transformed by Congress and the Supreme Court into permitting the owning of guns by all citizens. Even though guns vary from simple revolvers to major assault weapons, there is no law banning major assault weapons.
Over time, new Supreme Court justices are appointed by successive Presidents. The Supreme court has been primarily liberal in recent times. But President Trump during his one term had the opportunity to appoint three new justices who made the court more conservative. As a result, quite notable changes have occurred in recent years. The Supreme Court ruled against women having the right to an abortion. The Supreme Court stopped the White House from reducing student college debt. The Supreme Court abandoned its long-time defense of affirmative action. And the Supreme Court allowed merchants to refuse service to LGBTQ customers if merchants did not want to transact with this group.
So, changes do take place in national policy even without Constitutional amendments being passed. But needed changes are very slow in taking place with the consequence that legislation fails to represent the real preferences and reforms desired by current citizens.
Why is it so hard to pass proposed amendments?
Why is it so difficult to pass a new amendment to the U.S. Constitution? The process is so clearly spelled out in the Constitution itself.
An amendment may be proposed by a two-thirds vote of both Houses of Congress.
Or, if two-thirds of the States request one, by a convention called for that purpose.
The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.
Clearly, our framers of the Constitution strongly favored restraining the citizenry from changing any provision of the Constitution.
What are the 27 Amendments added to the U.S. Constitution?
1st 1791. Rights to Religion, Speech, Press, Assembly, Petition
2nd 1791. Right to Bear Arms
3rd 1791. Quartering of Soldiers
4th 1791. Search and Seizure
5th 1791. Grand Jury, Double Jeopardy, Self-Incrimination, Due Process
6th 1791. Rights of Accused in Criminal Prosecutions: Rights to Jury Trial, to Confront Opposing Witnesses and to Counsel
7th. 1791. Jury Trial
8th. 1791. Protections against Excessive Bail, Cruel and Unusual Punishment
9th. 1791. Non-Enumerated Rights
10th. 1791. Rights Reserved to States
11th. 1795. Suits Against a State
12th. 1804. Election of President and Vice-President
13th. 1865. Abolition of Slavery and Involuntary Servitude
14th. 1868. Protects rights against state infringements, defines citizenship, prohibits states from interfering with privileges and immunities, requires due process and equal protection, punishes states for denying vote, and disqualifies Confederate officials and debts
15th. 1870. Voting Rights
16thl 1913. Federal Income Tax
17th. 1913. Popular Election of Senators
18th. 1919. Prohibition
19th. 1920. Women’s Right to Vote
20th. 1933. Commencement of Presidential Term and Succession
21st. 1933. Repeal of 18th Amendment (Prohibition)
22nd. 1951. Two-Term Limitation on President
23rd. 1961. District of Columbia Presidential Vote
24th. 1964. Abolition of Poll Tax Requirement in Federal Elections
25th. 1967. Presidential Vacancy, Disability and Inability
26thl 1971. Right to Vote at Age 18
27th. 1992. Congressional Compensation
What Are the Six Most Important Changes Needed in the American Constitution?
Even given the likelihood that few Constitutional reforms are likely to occur in the American Constitution, we should consider six in the hope that enough citizens, businesses, and professional associations will start embracing and promoting them.
1. Reapportion more Congressional power to the larger states
The 50 American States vary vastly in population size (as of 2020). California, the largest state, has 39,538,223 people. Wyoming, the smallest state, has 576,851persons. Thus, California has 68 times as many people as Wyoming. This means that if the people of California favor a certain amendment, it can be blocked by Wyoming. Why? Because each state has two senators. The smallest states in the Union can act together to block the interests of the largest states.
One solution is to give the four largest states — California, Texas, Florida, New York — each of which have more than 20 million people — 4 senators instead of two senators. Give the next five states that have at least 10 million people — Pennsylvania, Illinois, Ohio, Georgia, North Carolina, and Michigan — three senators each. All the remaining states will have 2 senators. This arrangement will increase the power of the largest states to have more impact on national legislation.
2. Pass Term Limits on Congress and the Supreme Court justices
The U.S. was wise to set a two-terms limit on holding the U.S. Presidency. It was common practice for presidents to step down after eight years, in deference to George Washington’s decision to retire after his two terms. The idea to pass a two-term limit on the presidency occurred in the 1940s after Franklin D. Roosevelt won a third and fourth term. His fourth term was marked by his reduced energy and illness. The 22nd amendment was adopted on February 27, 1951 to limit the president to two terms.
The idea of setting term limits on Congressional members is also worth considering. When the Constitution was written, life expectancy was about 45 years. There was no need for term limits. Today, with life expectancy is 80 years, term limits make sense. The framers never considered that membership in Congress would be a ‘career.’ Many members of Congress achieve continuous reelection in highly gerrymandered districts. An existing Congress member is more likely to die in office than lose an election. Several senators lasted in Congress for over 48 years — Senator Robert Byrd (D-WV) 51 years, Sen. Daniel Inouye (D-HI) 49 years, and Sen. Strom Thurmond (D-SC and R-SC) 48 years. There is concern that unlimited terms might lead to corruption or too much power.
In a 2013 Gallup poll, 75 percent of Americans supported congressional term limits. I would favor holding House Representatives to six terms — in other words, to 12 years in office. Senators would be limited to two terms or 12 years in office. In both cases, reelected Congress members can outlast the current President who is limited to two terms, or eight years. Eliminating long-serving members would reduce power advantages gained through seniority and lead to more appointments based on merit. By more Congress members going in and out of office will remind them of what “real” life is like. By rotating Congressional leaders, lobbyists would have to groom new supporters rather than rely on “highly invested” supporters. There would be less chance of power leading to corruption.
The same case can be made for putting term limits on Supreme Court Justices. In a 2015 Reuters/Ipsos poll, 66 percent of Americans expressed support for Supreme Court term limits. Supreme Court term limits drew strong majorities from both parties and from independents. Leading scholars have proposed a single 18-year term for Supreme Court justices. This would give a one-term President two appointments to the Court and two-term President four appointments. Under this system, a controversial justice such as Clarence Thomas would leave the court in 18 years rather than being in court 32 years. Justice John Roberts, who has been Chief Justice for 17 years will leave the court next year. This will allow Supreme Court justices to be more current with the latest issues arising in a rapidly changing technological, economic, political and social world.
By establishing term limits on members of Congress and the Supreme Court, Americans might start regaining more trust in the in government and its elected officials.
3. Abolish Gerrymandering
There are 435 voting districts in the U.S. Only about 15 of the 435 Houses seats will be truly contested in 2024. What accounts for the high retention rate of incumbents? Incumbents benefit from having redesigned their voting district (called gerrymandering), with the help of their legislature, to contain most of their supporters. President Obama said gerrymandering is one of the fundamental problems in American politics:
“I think we’ve got to end the practice of drawing our congressional districts so that politicians can pick their voters, and not the other way around…Let a bipartisan group do it.”
Gerrymandering is the redrawing of political districts in order to give a party or candidate a numeric advantage over an opposing party or candidate. The original voting district might be fairly circular or square. But the dominant political party in the legislature may redraw the districts to look more like a salamander than a circle or square. In a 5-to-2 decision in 2015, the Florida Supreme Court ruled that a 2012 redistricting map drawn by the Republican-led legislature had been tainted by ‘unconstitutional intent to favor the Republican Party and incumbent lawmakers,’ and that Republican ‘operatives and political consultants‘ did in fact conspire to manipulate and influence the redistricting process.”
Gerrymandering is a political game played by different parties at different times. Normally the leading party politicians will redraw the map to favor their incumbents. The incumbents will have less incentive to compromise. They can please the most extreme elements in their party. The result: the two parties become more polarized.
Increasingly, citizens are calling for an independent redistricting commission to redraw the map. There are now 14 states that allow initiative referendums introduced by citizens through a petition process either to the legislature or directly to the voters with an additional eight states that allow indirect initiatives. Commissions in Arizona, Florida, and California now invite citizens instead of self-interested politicians in the legislature to draw alternative maps. But legislators in Arizona sued to be put back in charge and this case went before the Supreme Court. The Supreme Court, in a 5 to 4 vote, ruled in favor of independent commissions and other means of drawing up voting districts instead of leaving it only to Congress or state legislatures. The decision says that partisan gerrymandering is incompatible with democratic principles and that the people should be the originating source of all the powers of government.
4. Pass a new Voting Rights Act to end Voter Suppression Laws
President Lyndon Johnson signed the Voting Rights Act of 1965 to prohibit racial discrimination in voting. Before this act, voting rights were guaranteed by the 14th and 15th Amendments but racial discrimination had persisted. Section 2 of the 1965 Voting Rights Act prohibits state and local government from imposing any voting law that discriminates against racial or language minorities. The Act specifically rules out literacy tests and other devices that historically disenfranchised racial minorities. The 1965 Voting Rights Act was a major piece of civil rights legislation to correct this practice and it led to a mass enfranchisement of black voters. It also led the Democrats to lose the South.
Congress had repeatedly reaffirmed the act with additional protections. In 2006, Congress overwhelmingly extended the Act for another 25 years. But in 2013, the Supreme Court concluded in a 5–4 decision in Shelby County v. Holder that federal oversight of states and localities with a history of racial discrimination was no longer needed. They concluded that the Voting Rights Act had done its job and was no longer required.
True, literacy tests and poll taxes had been eliminated. But a determined group of conservatives in many states started to introduce other measures to keep black citizens, who typically vote Democratic, from voting. State and local areas in North Carolina, Texas, and five other states tightened up laws against voting. They introduced requirements for voter identification (a birth certificate, proof of address, and possibly an auto license) and they cut back early voting and same-day registration. Their legislators claimed that these measures were necessary because of extensive voter fraud and to increase efficiency in polling. Yet there was no evidence of voter fraud.
This voting suppression activity continued into 2015 with Wisconsin Governor Scott Walker reducing early voting and making it more difficult for college students to vote. Ex-Governor Jeb Bush trying to purge Florida voter rolls. And New Jersey Governor Chris Christie vetoed a bill to expand early voting in New Jersey. In the last case, New Jersey had one of the lowest voter turnouts in elections, something like 20–30%. Christie opposed automatic voter registration because he worries that it would lead to more vote fraud.
State actions to limit voting by citizens have already come to the attention of the Supreme Court. The Court refused to let states require evidence of citizenship when people register to vote for federal elections. We need a new Voters Right Act that more effectively prevents states from disenfranchising minority voters.
5. Eliminate the Electoral College
We think that in a democracy, the candidate with the most popular votes nationally would become the President. Yet in five of our 57 presidential elections, the candidate with the most popular votes did not win:
· In 1824, Andrew Jackson won the popular vote but got less than 50% of the electoral votes. John Quincy Adams became the next president when he was picked by the House of Representatives.
· In 1876, Samuel Tilden won the popular vote but lost the election when Rutherford B. Hayes got 185 electoral votes to Tilden’s 184.
· In 1888, Grover Cleveland won the popular vote but lost the election when Benjamin Harrison got 233 electoral votes to Cleveland’s 168.
· In 2000, Al Gore won the popular vote but lost the election to George Bush. The U.S. Supreme Court stopped the Florida recount of ballots, giving Bush the state’s 25 electoral votes for a total of 271 to Gore’s 255. In 2016,
· Hillary Clinton won the popular vote but lost the election to Donald Trump who got 306 to Hillary’s 232.
Under the U.S. Constitution, the President is elected by the Electoral College, not by who wins the most popular votes. The U.S. President is chosen by the 538 members of the Electoral College. 48 states use the “winner-take-all” votes rule. The candidate who wins the most votes gets all of that state’s electors, whether the margin is 100 votes or 100,000. Thus, so many popular votes are disregarded in the election process.
Electoral College is the result of a compromise to prevent mob rule. It leaves power in the hands of the states, not the citizens, to determine the new president. It leads the candidates to know which states to concentrate on rather than on needing to appeal to all states.
In contrast, in a truly national popular vote system, Republican candidates would compete for the votes of Latinos, African Americans, LGBTQ voters and suburban women. And Democratic candidates would have to plan to win the votes of rural and working class Americans.
Senator Elizabeth Warren and others seek an amendment to the Constitution that eliminates the Electoral College. A proposed bill called the presidential candidate who received the most popular votes in all 50 states (and the District of Columbia). This bill has already been enacted by 11 jurisdictions possessing 165 electoral votes — 61% of the 270 electoral votes necessary to activate it. The bill would take effect when enacted by states possessing a majority of the electoral votes — that is, enough electoral votes to elect a President (270 of 538).
Votes in the largest states would have a major influence on the presidential outcome. Political candidates will spend most of their money and time promoting themselves in our four largest states — California, Texas, New York, and Florida. This bill would correct today’s situation where candidates run most of their political campaigns in four states (Ohio, Florida, Virginia, and Iowa). Meanwhile they can relatively ignore the 38 states that make much less of a difference in the outcome. The bill has passed in 33 legislative chambers in 22 states. Once it passes in a sufficient number of states, citizens can expect the new President to always be the candidate who wins the most popular votes.
6. Eliminate Citizen’s United and Dark Money
Much of the high cost of federal elections in the U.S. is due to the Supreme Court’s 5 to 4 Citizens United v. Federal Election Commission decision in 2010. The Supreme Court defined corporations as “persons” that have the right to free speech. It allowed the formation of Super Pacs that could raise unlimited sums of money from corporations, unions, and associations and to spend unlimited sums for or against political candidates.
Prior to this 2010 Supreme Court decision, political parties operated PACS (Political Action Committees). Individuals could contribute $2,800 per election cycle to candidates and traditional candidate committees each election cycle. Since there was a primary and a general election during the year, an individual could contribute $5,600 a year split equally between the primary and general election. However, candidates and candidate political action committees were prohibited from accepting money from corporations, unions, and associations.
This all changed with the Supreme Court decision of 2010. The rise of the super PAC marked the beginning of a new era in politics in which the outcome of elections would be determined by the vast sums of money flowing into them. This puts more power into the hands of the wealthy and leaves average voters with little to no influence.
The most important restriction on super PACs prohibits them from working in conjunction with a candidate they’re supporting. According to the Federal Election Commission, super PACs cannot spend money “in concert or cooperation with, or at the request or suggestion of, a candidate, the candidate’s campaign or a political party.
Another difference is that some of the money that flows into super PACs is untraceable. This is often referred to as dark money. Individuals can mask their identities and their contributions to super PACs by giving funds to outside groups which then give the money to a super PAC, a process that is essentially laundering. These groups include nonprofit 501[c] groups and social welfare organizations.
The activist group Move to Amend, intent on overturning the Supreme Court’s Citizens United decision, made the following observation:
‘Corporations are not merely exercising political power today — they have become de facto ruling institutions. Ultra-wealthy individuals and unelected, 50 unaccountable corporate CEOs make the fundamental public policy decisions in this country.”
Move to Amend has gathered support for a constitutional amendment overturning the two main concepts: (1) Corporations are not persons with inalienable rights, and (2) the spending of money to influence elections is not speech under the 1st Amendment.
Conclusion
All democracies are imperfect. Yet hopefully procedures exist to highlight and amend deficiencies and improve our living institutions. The good news is that the U.S. Constitution provides the procedures for amending the Constitution. The bad news is that the procedures take a great amount of organized effort to implement. The fact that amendments are difficult to pass is evidenced by the fact that only 27 amendments have passed out of 11,000 past proposed amendments.
Still, it is important to remind citizens that they have the right to speak and organize to make democracy work better. I selected six critically important areas that handicap our democracy. By organizing stimulating discussions and debates, new ideas and perspectives can hopefully bring positive influence and action to our political candidates, elected officials, and our leaders in business and nonprofit organizations.
