Constitutional daydreams

As one among many seeing a need (and opportunity) for big ideas to enable American reconstruction after this long, terrible moment, I have been daydreaming about what a new Constitutional order could look like. I don’t have any real expertise in comparative government, so I offer this as a playful-but-not-frivolous provocation.

If you do not like these ideas, I keep an index of thinking about Reconstruction which includes other comparable proposals.

A unicameral Congress

This proposal rests on an idea I have for replacing our first-past-the-post system with a novel system in which voters cast ranked ballots, producing a set of elected representatives each of whom holds different voting power in Congress, proportional to their voter support.

There are three distinct types of Congressional representatives.

County councilors

Each county elects five councilors. Though different counties have different populations, representation is equal because the counselors hold voting strength in Congress proportionate to the population who voted for them.

With 3000+ counties in the US, that would mean over 15,000 councilors. Best to have them cast votes electronically from their home county rather than send them to DC, making them available to their constituents.

Choose senators nationally

It is weird that the US has two geographically-determined sets of national representatives, so I propose choosing senators in a national election: everyone in the country votes, and the top ten candidates become senators.

These ten senators become the biggest movers in politics, as a group small enough to have an unstructured discussion in a room together. Each would present a policy package tentpole, creating a greater range of loci of power than just two (or a few) parties.

Having these Congressmembers elected nationally with proporational representation empowers significant but thinly-distributed minorities; if just 10% of the population shares interests but lack a majority in any particular area, they can still elect a senator.

Assemblors chosen by sortition

Have 50 Congressmembers chosen randomly from the citizenry, like a jury. Each would vote in Congress with the strength of ⅟50^th of the eligable voting population. Fifty is a big enough group to smooth out the bumps of weird individuals, but a enough that they could convene in a room together and build real relationships.

All three types of reps vote together

Rather than having the weird two-stage process of current American bicameralism, in this system all three types of reps would vote in Congress at the same time and have their proportionally-weighted votes tallied together. The numerous councilors would not overwhelm the few senators & assemblors because assemblors & senators vote with a strength of millions while each councilor has only the strength thousands of voters.

A measure supported by a strong majority of senators could pass if it was a bit short of a majorities of councilors & assemblors, et cetera.

A new type of supermajority

Parliamentary systems require various kinds of supermajority for particularly strong measures. F’rinstance, it currently takes a 2/3 majority in the Senate to ratify a treaty.

In this system, strong measures could require a majority among each of the three types of congressional representatives, harder to achieve than the normal single combined vote, but democratically powerful as it demonstrates majorities achieved through three structurally distinct representations of the polity.

Distinct powers for different classes of Congresspeople?

This system creates an implicit gauge of public support for assemblors. If assemblors do their job well, fewer people might bother to vote for senators & councilors, granting the assemblors more power in Congress. If assemblors do badly, citizens could respond with higher election turnout, outweighing assemblors’ power.

Some key particular functions may be assigned to one type of Congressional reps or another. I think it is probably wise if only senators can introduce new legislation. Judicial appointments might be approved by assemblors alone, since they most directly represent the citizenry.

Separating the classes Congresspeople for certain functions helps provide some intra-Congressional checks-and-balances. Perhaps senators do not vote on impeachment proceedings against other senators, with that determined by a supermajority of the body of councilors & assemblors, and so forth.

A parliamentary executive

Presidential systems have a host of problems. The US got lucky for a long time, but it seems our luck has run out.

Congress chooses a PM who serves as chief executive, much as the president serves now. Omit veto power over legislation and the pardon power. Give the PM a bit greater authority over foreign policy by doing stuff like lowering the threshold for Congress to approve treaties. Reduce (or maybe even eliminate) the process of Congressional approval of executive appointments, since the PM answers directly to Congress.

This makes the legislature stronger and the executive weaker; there are good reasons to want that.

I hope that the Congress as designed here would not be vulnerable to the deadlocks which prevent some parliamentary systems from forming a government. There is a lot of prior art in parliamentary systems to draw upon in preëmpting those problems in specific selection process Congress uses.

A ceremonial president

Constitutional monarchies have some advantages from having a ceremonial head-of-state distinct from the democratically-empowered chief executive. In the US the presidency awkwardly combines both functions, and we should not compromise the PM role that way. Given the poetry of the American presidency, it would be nice to also have a president to address this problem.

The president would deliver an annual State Of The Union address, award medals, et cetera. They would have full discretion over a constitutionally-fixed discretionary budget, pegged to maybe 0.1% of the national budget. I imagine a bouquet of ombudsman-like powers. The president would be able to compel Congress to vote on any question. I think the pardon power would present less conflict-of-interest trouble connected to this weaker role. I imagine that the president would continue to use the White House, but get cut off from all the extra business in the basement, which instead would be at the disposal of the PM with an office in the Old Executive Office Building.

I hate Ronald Reagan but he would have been great as this kind of ceremonial head-of-state. Even Donald Trump would have been relatively harmless in the role.

Choose the president with a national popular vote using ranked ballots where voters can list anyone they like, just as they do for senators and councilors. My electoral mechanism is not structured to produce a single victor, but there are a number of ways to determine one from ranked ballots … and with much lower stakes for the office, any method will do.

Unitary government with stronger counties

A council comprised of the councilors a county sends to Congress plus a set of local panelists chosen by sortition governs each county. The councilors vote both in the national Congress and in the local council, while the panelists would only vote on county governance. (This embraces Americans’ common false intuition that members of the House Of Representatives have responsibility for governance within their home districts.)

Rather than have our complex overlapping jurisdictional relationships between municipalties, counties, states, and the federal government, this is a unitary system which only structurally recognizes the national government and the counties. Power resides in the national government, which assigns power & responsibilities to the counties.

Counties may not raise funds; each county receives funding out of the national budget directly proportional to their population, at a rate set by Congress. This corrects stark inequities in the resources available to local government today.

Because councilors vote in Congress, the national government would not starve the counties of funding or authority … but senators & assemblors considering policy at the national scale would balance assemblors’ appetite.

States are grandfathered in as agreements between counties, and municipalities become instruments controlled by the counties, which county governments may alter or abolish. (This is why I refer to national rather than federal government, and the flag at the top of this post retains the basic form of the US flag but omits the stars representing states. We might call the reconstituted nation the “Republic Of America”.)

Judiciary

I have given judicial reform much less thought. This system is compatible with many proposals I have seen.

F’rinstance, the Supreme Court may work much the way it does now, but instead of being populated through our weird system of death and gerentocracy we appoint a new Justice each year and retire the longest-serving justice if that gives the Court more than nine Justices.

The PM might propose judicial appointments subject to approval by Congress, much as the president does in our current system … or perhaps assemblors alone ratify — even select — judges.

Anti-corruption measures

Any such surgery on the Constitution is a good time to get the money out of politics. There are many good, familiar proposals, like public funding of electoral campaigns. I have a radical proposal to add to the mix.

All elected officials — plus appointed officials controlling a budget greater than 10,000x the national median income — become a Public Citizen for life, with tight constraints on their personal finances. They get a pension of twice the national median income … but are forbidden to take any other money from anyone. The national government takes custody of their assets, though they get right of first refusal to rent their house at the market rate.

This would be expensive, and tricky to enforce, but would keep powerful government officials from governing to the benefit of monied interests and then cashing in after they serve. Plus it would encourage ordinary people to take on government service while deterring rich people!

Miscellany

I have a grab bag of other proposals —

Pre-commitment to legislation

Candidates for legislative office may make a binding promise to vote for specific legislation. If that law comes to a vote they don’t get a choice; they must cast the vote they promised. To avoid poison pill shenanigans, this would have to be bound to very specific legislative language.

Re-drawing county lines

With counties so important, it would be valuable to have a difficult-but-not-impossible process for splitting, merging, and otherwise re-drawing county boundaries. Councils could propose changes and put them to a plebicite, which would require majority approval by the citizens in each region affected. So if County A wanted to take custody of Region B within County C, it would require a successful vote among voters in County A and Region B and the rump County C.

Pace layers

Assemblors have a lot of responsibility, so give them an eight-year term. In their first two years, an assemblor gets tutored in the operations of the government. In their third year, they participate in the assembly but do not have a vote. Then they serve as full members of the assembly for five years. Each year ten new assemblors join the pipeline and ten retire, giving the body of assemblors continuity.

The ranked-ballot system gives incumbents a significant credibility advantage, but having their voting power proportional to votes they receive means that each rep’s strength will wax and wane with each election. I think it would be wise to have the senate face an election every year, while counties might come up for election at a slower cadence, maybe every five years.

Since the presidency is much less fraught in this system, I don’t think the cadence matters; it might make sense to have Congress call Presidential elections at will, with a requirement to call them at least every eight years. I would not subject the president (or any elected position) to term limits, but I do want the presidency to be a role that honored political leaders would retire to, so past presidents are barred from holding any other government position.

No other elected positions

Voters choose only senators, councilors, and the president. I am skeptical that having a lot of elected positions creates more democratic accountability; fewer elected roles make accountability more clear, easier for inattentive citizens to keep track of.

Insulated accountability bodies

There are a few forms of accountability which should be protected from election pressures, as the judiciary is now in the US. I imagine a set of bodies with specific domains of interest and subpoena power. These would be appointed by the national assemblors, whose limited terms and varied backgrounds present the least temptation to corrode these bodies’ willingness to check irresponsbile exercise of power.

• Rather than have the constitutionality of legislation governed by a reactive Supreme Court, I would have a body committed to this function with a mandate to proactively constitutionality. Congress would be able to demand a test of the constitutionality of proposed legislation.
• A body must audit Public Citizens to ensure that they obey the financial restrictions upon them.
• Government secrecy is necessary for certain purposes but invites abuse, so have a body able to inspect government programs and information, checking that secrecy is actually justified.
• Citizens need reporting of factual information about government operations beyond what journalists can do, as current bodies like the Congressional Budget Office do.

Explicitly name core principles

The Declaration of Independence names bedrock principles which should have the force of constitutional law. The pramble should include something like: “The institutions named here — and whatever actions those institutions undertake — derive their legitimacy from the consent of the governed and from serving all of the people they govern: protecting their equal rights and dignity, meeting their human needs, enabling them to work toward common purpose.”