Sunday, November 11, 2012

The case for 4 Constitutional Amendments

- by New Deal democrat

There have been no major structural changes in our Republic since women were given the right to vote and direct elections for the Senate almost a century ago. Since then, partly due to technology, and partly due to extremism, four serious abuses have come to the forefront of the system. They need to be corrected, and they need to be corrected in a systemic way that assures as best we can that they do not re-appear. That means amending the Constitution. If it won't be spoken of inside the Beltway, if it won't be acknowledged in the mainstream media, at least out here in the Oort Belt of the blogosphere, we need to speak the truth bluntly.

The four necessary Amendments to the Constitution are:
- an Anti-Gerrymandering amendment
- an Anti- Filibuster amendment
- an Anti-lame duck Congress amendment
- a *COUNTERCYCLICAL* balanced budget amendment

An Anti-Gerrymandering Amendment. We just had an election that produced the most lopsided House of Representatives vs. popular vote in over 60 years - and for only the second time in that period, handed a majority of seats to the party that obtained a minority of the total vote. Sam Wang of the Princeton Election Consortium shows that this outlier is so bad, it appears that it would have taken a 5% popular vote majority for democrats to produce even a 1 seat majority. If you don't believe me, click on the link and take a look at his scattergraph, and read his excellent analysis.

The math behind gerrymandering is not sophisticated. Let's take a hypothetical state that is entitled to 10 seats in the House. If you have a 50/50 electorate on the basis of party identification, you can gerrymander to give one party 9 of those 10 seats by making the electorate for 1 seat 100% of the "out" party, and the electorate for the remaining 9 seats 54.5% for the "in" party and 45.5% for the "out" party. If you want to insulate the "in" party further against a "wave" election favorable to the "out" party, simply allow 2 of the seats to be 100% "out" party electorate and the remaining 8 62.5% "in" party electorate and 37.5% "out" party electorate. Even an "in" party that captures state government with only 40% of party identification could generate 8 of the 10 Congressional seats with 57.1% "in" party and 42.9% "out" party electorates.

Before you decide that such a scenario isn't realistic, you might want to consider that there are a fair number of nearly 100% African American Congressional districts. You might also want to note that in Pennsylvania this election, the Democrats got only 5 of 18 House seats, and in Ohio the Democrats got only 4 of 16 House seats, despite the total popular vote in each being majority Democratic.

That is simply not democratic in the small "d" sense. The majority will is being deliberately throttled.

Even worse, there have been proposals to change "winner take all" Presidential electoral college allocations in, for example and not surprisingly, Pennsylvania. Imagine a Presidential candidate winning the popular vote in a state and obtaining only about 1/4 of its Electors! That's the direction in which we are going.

Regardless of which party does it, the Gerrymandering of the House is undemocratic. Further, since computer modeling made microselecting districts easy, only about 10% of House seats have been seriously contestable in any given election year.

Some states, of course, have nonpartisan commissions to draw up maps. Another option is to require that Congressional house maps follow County or Parish lines, and then municipal lines, as much as possible consistent with one voter/one vote, drawn so that it results in the minimum number of eligible voters living in a divided County or Municipality. To be sure that states wouldn't create or rearrange municipal boundaries to get around the requirement, the boundaries used would have to be sufficiently pre-existing (I would suggest by 20 years) to remove the temptation.

An Anti-Filibustering Amendment. The second practice that has gotten completely out of hand is the Senate filibuster. It is nowhere specified in the Constitution. It is merely an internal rule (each House of Congress is permitted to set its own procedural rules), and its abuse has become endemic, requiring a supermajority of voters to elect the same party in order ot accomplish anything. Again, this is true regardless of which party does it.

There may be a limited use for a filibuster, e.g., the lifetime appointment of Supreme and Appellate Court Judges; and/or there may be a value to a limited supermajority, e.g., 55 votes; exercized with some strict limits -- and again, regardless of which party is in or out of power. Even when it is used, it must be real, not by kabuki as it is now. If Senators in their 60s, 70s, and 80s (and the Senate is currently a gerontocracy with a median age of 68) really feel strongly enough about an issue, let them put their bodies to the test. But enough is enough.

An anti-lame duck Congress Amendment Third, for at least the second time in 14 years, we are in the midst of the use of a lame duck Congress to enact unpopular legislation by many members who have already retired or lost elections and so won't be subject to the crucible of re-elction contests. Now it is the "fiscal cliff" or "Grand Bargain", and in 1998 after the GOP leadership was staunchly rebuffed by the electorate, the lame ducks nevertheless proceeded with the Impeachment of Bill Clinton.

Use of a lame duck Congress to enact business that will be difficult for subsequent Congresses to undo (given the many checks and balances blocking action) is again fundamanentally (small "d") undemocratic, regardless of which party does so or even if both participate in the betrayal of their Constituents. While there may occasionally be emergency legislation that is required during such a session (imagine if the Pearl Harbor attack had occurred on December 7, 1940 rather than 1941), lame duck sessions have too much of the possibility of mischief.

To allow emergency legislation but prevent antidemocratic mischief, any enactment of a lame duck Congress should automatically have a quick expiration date, e.g., March 31 or June 30 of the following year. If the enactment were necessary, the incoming Congress would renew it. If not, it would expire.

A COUNTERCYCLICAL Balanced Budget Amendment Finally, despite Charlie Pierce calling it the Worst Idea Ever, the simple fact is that we need some sort of way to rein in chronic deficit spending. Keynes' economic idea always envisioned that surpluses would be run in the good times to make up for the deficit spending in the bad. In reality, those surpluses have almost never happened. With the sole exception of one year at the end of Bill Clinton's presidency, we have run deficits every single year since 1969. Since 1980 we have avoided the consequences because of the general disinflation of interest rates, which are now close to zero. Once those interest rates start to rise, Treasury Bonds issued to cover the debt will once again become the "certificates of confiscation" they were in the 1970s, and that way lies disaster.

So how do we overcome the propensity of legislators to run deficits even during the good times, which eventually straightjackets spending during horrible economic times? I see three possibilities: (1) using a statistical trigger such as 6% unemployment; (2) using the Courts as umpires; and/or (3) using the States as watchdogs.

As to (1) we could mandate for example a surplus be run if the unemployment rate drops below 6%. The drawback is that Congress would immediately start to try to redefine or change the measure. If no change in calculation could take effect for 10 years, that avernue of deception might be closed. As to (2), the Supreme Court could be tasked with appointing one or more Special Masters to report whether or not the economy were in an expansion sufficient to require a surplus. That would put political shenanigans at a one step remove, but it would tend to politicize the Supreme Court even more than it already is.

The thrid option seems best to me. The large majority of states must balance their budgets annually and cannot bottow money to run a deficit. That's why in deep recessions a lot of Federal stimulus usually goes to the states. States have avery powerful incentive to assure that a "rainy day fund" exists at the Federal level to be dispensed to them in times of need. If such a fund had to be sourced from a surplus run during good economic times, the States sould have a very powerful incentive to make sure the Congress runs one. If the Federal government were forced to run a surplus in every year that a majority of States by number or population ordered them to, the problem would be overcome.

About 5 years ago, when I floated the idea of a countercyclical balanced budget amendment at Daily Kos, many people didn't get the "countercyclical" part, or else didn't feel that deficits were a problem. Even if that were the case, look at what the Bush tax cuts have wrought. They have completely blown a hole in the budget for over a decade, they are the single biggest portion of the national debt, and in response even a Democratic President and Senate are willing to entertain cuts in Social Security and Medicare -- all to wind up with tax rates less than existed during Clinton's presidency. If requiring the federal budget to be balanced on a countercyclical basis saved Social Security and Medicare, it would be well worth it.

In summary, the structural foundations of our Republic are in dire need of fixing. Gerrymandering, the filibuster, the use of lame duck Congresses, and the chronically unbalanced federal budget are all cancers on the organism of oiur body politic. Even though there may be no chance that the politically ascendant financier class will want to consider them, and even though I may be just one voice communicating from the Oort Cloud of the deep economic blogosphere, someone has to start pointing out the ultimate remedies.