Tuesday, November 04, 2008

The Constitutional Change We Need

Here are a few election-related constitutional changes we need:

1) Replace the Electoral College with a national popular vote

The arguments against the Electoral College are well known. I'll only rehearse two of them here:

a) Voters in non-swing states like California, New York and Texas would have a reason to turn out to vote in the Presidential election if we eliminated the Electoral College;

b) With the Electoral College, relatively small numbers of irregularities are much more likely to affect the outcome in a state race than in a national race.

The biggest practical obstacle to this change would likely be the fact that the Electoral College currently gives a boost to small states, which disproportionately vote Republican. The boost is based on the fact that a state's electoral votes equals the number of Senators plus the number of Representatives, and Senators are not based on population. That's enough of a boost to make a difference. In 2000, if each state had electoral votes solely in proportion to population, Gore would have won, even counting Florida for Bush.

2) Move up Inauguration Day

The original Constitution provided for Inauguration in March. In an era of horse-and-buggy transportation that may have made some sense, but even in the early Republic, it permitted a great deal of lame-duck mischief, such as the packing of the courts by the defeated Federalists between the 1800 election and Jefferson's inauguration. The 20th Amendment, ratified in 1933, fixed the current inauguration schedule: January 3 for Congress; January 20 for the President. That's still too long a lame-duck period. As this Editorial in today's NY Times shows, it permits a lame duck President to accomplish quite a bit that he could not otherwise get away with if he were accountable.

The post-election rush to count votes that an earlier election day would spawn is potentially problematic in the event of a close election. In 2000, the early-December deadline set by the Electoral Count Act was the justification (or more properly, the excuse) for the Supreme Court's stopping of the recount. If Inauguration Day had been a day or two after the election, there wouldn't have been time for any of the post-election wrangling, so this proposed amendment could be seen as making it harder to counte every vote. However, coupled with change number 1, this problem would largely go away, and contingencies could be made for the rare very close election. (Credit Sandy Levinson for making this point in a colloquy with me at the GW Law Review conference a couple of weeks ago and more generally, for proposing numerous changes to Our Undemocratic Constitution.)

One advantage to the current system is that it gives Senators and their staff an opportunity to consider the credentials of Cabinet nominees before holding confirmation hearings. But conversely, an earlier Inauguration Day would provide candidates with an incentive to name potential Cabinet members before the election. That in turn would be good for accountability, although potentially troubling for getting people to serve. For example, the Chairman of Goldman Sachs may be willing to accept the nomination for Treasury Secretary if offered by the actual President-elect, but unwilling to accept the possibility of a nomination from a Presidential candidate, because if that candidate loses, he may then be placed in an awkward position at Goldman. Of course, given recent events, perhaps a system that discourages a President from picking the Chairman of Goldman Sachs as Treasury Secretary isn't such a bad idea.

3) Forbid any Primary or Caucus from Occurring Before May

The Presidential race is way too long. This is exhausting for the candidates and more importantly, increases the length of time during which the country is distracted from current policy choices by the Presidential race. Some people propose a national primary day, which has its pluses and minuses. I'd be happy with that but also with a system of successive primaries, in which states rotate as to who goes first. Would such rules infringe the First Amendment rights of political parties? Perhaps, but a constitutional amendment would solve any such difficulties.

Needless to say, there's more that could be done, especially with regard to making it easier for people to vote and our clearly outdated system of campaign finance. I welcome further proposals.

Posted by Mike Dorf