I started my professional career of advocating for government action to conserve and restore public lands during the Ford administration. Over the decades, I (along with many vital allies) have had some successes (and, alas, many failures). I have been both an outside political agitator (as when I was arrested in Senator Mark Hatfield’s office protesting his logging-without-laws rider) and an inside operative (as more than a few words I’ve drafted have been enacted into law). Perhaps it’s just my crankiness index rising alongside my age, but I don’t think our democracy works as well as it used to. Not that it ever worked well enough, but I believe that all three branches of our national government are more dysfunctional than they used to be. (We shall leave state government for another time.)
Though the Wilderness Act (1964), the Clean Water Act (1970), the Endangered Species Act (1973), and a plethora of federal conservation and environmental protection statutes that we rely on are immensely popular with the electorate, I don’t think the conservation community could convince Congress to enact them into law today. Congress is just too dysfunctional. I do take some solace in the fact that the same could be said for the Banking Act (1933), the Social Security Act (1935), the Medicare Act (1965), and a plethora of New Deal (F. Roosevelt), Fair Deal (Truman), New Frontier (Kennedy), Great Society (Johnson), and New Voice (Nixon) landmark laws.
In this post I sketch a series of executive, legislative, judicial, electoral, and other reforms that I believe would revive our republican democracy. Some would require a constitutional amendment (no small task these days). Some are inconsistent with others. All are worthy.
As this is the Public Lands Blog, permit me to remind you that the United States Constitution vests all power over the nation’s public lands in Congress. Congress can delegate and has delegated much of that power to the executive branch—mostly to the secretary of the interior, some to the secretary of agriculture (National Forest System), and occasionally to the president (creating national monuments, banning offshore oil and gas, and such). (See the Public Lands Blog post “The Constitutionality of Federal Public Lands.”)
Executive Branch Reforms
1. Give the president one six-year term.
With perhaps the exception of our first and forty-fifth presidents, most of those who have achieved the office of president have sought it for their entire lives. They have usually won several elections to other offices previously, they have kissed countless babies on the campaign trail, and they have kissed countless asses of other politicians, tycoons, CEOs, labor goons, media figures, and more. Having finally got to the national big top, they are constrained by having only a four-year term—and immediately having to seek another one. One six-year term would allow presidents to do things they either actually believe in (and theoretically promised to do while campaigning) or at least want to do so as to set their place in history. There is a freedom in holding one’s last elected office (John Quincy Adams notwithstanding).
2. Provide for direct election of the president.
To offset the constitutional gerrymandering that are the collective states, the president should be elected by getting the most votes of voters, not the most votes in the Electoral College, which is increasingly going in the same direction as the Senate (see below). For most of our history, coincidentally, the results of the Electoral College vote have mirrored the popular “vote.” In five cases so far, they have not (1824, 1876, 1888, 2000, and 2016). Matters demographic mean that a disconnect between the wishes of a majority of the nation’s voters and the Electoral College will increasingly occur. In 2016, Donald Trump prevailed in the Electoral College even though Hillary Clinton received several million more votes in the popular “vote.” If 77,000 votes in Michigan, Wisconsin, and Pennsylvania had gone the other way (or if certain of a state’s counties had been not in that state but in the one directly adjacent), the winner of the popular “vote” would have prevailed. It was even closer in 2020. Biden ran away with the Electoral College (306 to 232) and had a strong national popular vote victory (51.5 percent to 47.1 percent), but if Trump had had the “right” 44,000 more votes (11,000 in Arizona, 13,000 in Georgia, and 20,000 in Wisconsin), the Electoral College would have deadlocked at 269 to 269, thereby throwing it to the incoming House of Representatives. While the House had a majority of Democrats, the votes in this case would have been by state—and because a majority of state delegations in the House are majority Republican, Trump would have won.
3. Redistribute executive power to cabinet secretaries.
There is a shadow government in the White House for each department nominally overseen by a secretary of something. Full secretaries mostly don’t get to choose their deputies; they are chosen by the White House. It’s a hell of a way to run a government.
Legislative Branch Reforms
1. End the Senate filibuster.
We are a nation of majority rule with the protection of minority rights. The current filibuster rule, which requires at least sixty votes to pass a bill—but practically often only one vote to stop Senate action—is fundamentally anti-democratic and anti-republican. Rather than stopping the majority from running roughshod over the minority, the Senate filibuster allows a minority to thwart the will of the nation. I find the argument that “we” need the filibuster when “we” are in the minority to be utterly unconvincing. The balance of harm weighs heavily against the filibuster. Whatever good it has done is minuscule weighed against the harm it has done.
2. Get rid of the appropriations committees.
In both houses of Congress, there are several “authorizing” committees that write laws and two “appropriations” committees that spend money. Increasingly, must-pass appropriations bills include authorizing law, giving undue power to the appropriations committee members. Authorizing bills (statutes) often say “$XX is authorized to be appropriated to carry out the purposes of this Act.” It’s easy for authorizing committees to authorize huge sums that never get appropriated—and as easy for appropriations bills to spend money never authorized in an authorization bill. Let Congress biennially (things don’t change that much each year) enact a budget amount for each authorizing committee to spend as it sees fit.
3. Embrace earmarks.
Earmarks in legislation designate funds for particular purposes. In the recent past, earmarks have been viewed as corrupting—and sometimes they certainly are. However, earmarks in a bill for the pet project of a member of Congress or a senator are reasons to vote for that bill. Any bill needs 60 votes in the Senate and 218 votes in the House of Representatives to become law. Sometimes it takes earmarks. Corruption of earmarks is often associated with last-minute insertions into a bill before a vote. (News flash: most elected officials [or their staffs] don’t read all the legislation they vote on.) Processes can be developed to ensure transparency and timeliness to shed the light of day on earmarks.
4. Give four-year staggered terms to House members
In 1789, two years passed more slowly than today. Today, House members spend a majority of their time not legislating the people’s business but legally shaking down certain monied people for campaign contributions. The campaign for re-election begins the morning after the election (if not before). There is a very short window at the start of a new Congress in January of odd-numbered years before all the political bandwidth is consumed with re-election in November of even-numbered years.
5. Elect House speakers who are not House members.
The top job in the House has always gone to a member of the majority party. Nothing in the Constitution requires the speaker of the House of Representatives to be a member of the House of Representatives. The speaker’s ability to move or not move legislation to the floor is effectively limited by what a majority of the majority wants or doesn’t want. This means that legislation that could pass on the floor never gets to the floor. Election of a speaker without a party affiliation could make the House more bipartisan.
5. Make discharge petitions secret.
Make a discharge petition secret? Hell, you may be asking, what even is a discharge petition? If a bill is bottled up in committee by “leadership” (House officers and/or committee chairs), the bill can proceed directly to the floor for a vote if a majority of House members (218) sign a “discharge petition.” It rarely works. Many discharge petitions crap out just short of 218. Why? Because the wrath of the leadership would rain down upon those last few prospective signers, who could see their campaign funding, committee positions, parking spaces, and much more jeopardized. I’m generally all for transparency, but signers of discharge petitions should have to inform the clerk of the House and no one else. Then, when 218 signers exist, “the Clerk shall call the roll.”
6. Abolish the Senate.
“By 2040 or so, 70 percent of Americans will live in 15 states. Meaning 30 percent will choose 70 senators,” notes the noted political scientist Norman Ornstein. “And the 30 percent will be older, whiter, more rural, more male than the 70 percent.” As each state has two senators, today a vote in Wyoming has 57 times the people-weight of a vote in California. States are so eighteenth century. Until the American Civil War, a citizen of the United States was most likely to first identify as a citizen of their state rather than of their nation, but today state citizenship is more subordinate and less relevant than national citizenship.
7. Require Senate confirmation of full secretaries only.
A lot of Senate time is spent on hearings on nominations to fill the posts of undersecretaries, assistant secretaries, agency heads, and the like. Many such positions remained unfilled in the eighth month of the Biden administration. Only full cabinet officers should be subject to Senate confirmation. Let these officers then choose their team and get on with government.
8. Return to “regular order.”
Regular order is how things used to be done. Introduce a bill. Have a hearing. Have a markup in committee to perfect the bill. Vote on the standalone bill on the floor (don’t stuff it into a must-pass Christmas tree bill). Send it over to the other body. Repeat. Agree on the final bill. Send it to the president for signature or veto. The authorizing committees of jurisdiction should write legislation, not the leadership. Rather than limiting just the terms of committee chairs, also limit the terms of leadership.
Judicial Branch Reforms
1. Give eighteen-year terms to Supreme Court justices.
Depending upon the whims of the grim reaper and the electorate, a president’s choices on the court can far outlive any election mandate. In the late eighteenth century, people didn’t live as long and presidents didn’t appoint young jurists for what can be a fifty-year term. After serving their eightteen-year terms, justices could take up positions on appeals courts or retire—while still getting the constitutionally protected salary until death.
2. Enlarge the Supreme Court.
Having so much power vested in nine jurists—even if limited to eighteen-year terms—is not good. The nation is much larger in population than it used to be, and there is all the more litigation. The Supreme Court leaves important matters unresolved because it doesn’t have enough time. Spread the work around to more justices.
3. Establish more appeals courts (judicial circuits).
There are currently twelve regional judicial circuits (and a thirteenth “federal” circuit). Because of more litigation, there should be eighteen, each one overseen by one Supreme Court justice.
4. Install more district court judges.
There are 94 US district courts, with 673 district court judges within them. These judges are overloaded and often rely on “magistrates,” essentially junior assistant judges who do all the work in sitting on a case that is eventually affirmed by the real “Article III” (judicial branch) judge. Real judges have lifetime appointments and salary guarantees designed to help their impartiality. A magistrate’s “recommendations” to a real judge about a decision may be influenced by that magistrate’s angling for a nomination for a real lifetime judgeship. In addition, all those “Article 1” (executive branch) “judges” in various departments and commissions that serve at the pleasure of the executive branch and are not independent should be abolished.
Electoral Reforms
1. Get the money out of politics.
Money first corrupts elections and then governance. Other Western democracies publicly fund their elections. Just as a Wyomian should not have more voting power than a Californian, the rich should not have more voting power than the non-rich.
2. Use ranked choice voting.
Most election law in this country is gamed in favor of two parties. I spent a lot of time in 2000 trying to convince my fellow Oregonians that indeed there was a difference between Al Gore and George W. Bush and that voting for Ralph Nader (who I’ve long known and who is one of my few heroes) was a vote for Bush. (I must admit I argued most with fellow privileged white males who were going to vote for Nader as their relative and absolute societal positions would be little affected by either Gore or Bush.) Gore barely won Oregon that year, but barely losing Florida was more consequential. Ranked choice voting allows one election with many instantaneous runoffs (if necessary) so the candidate finally elected is the choice (albeit not necessarily the first, second, or third choice) of a majority of the electorate.
3. Enlarge vote-by-mail.
Voting in person is so twentieth century and open to abusing voting rights. The best single reason for keeping the United States Postal Service is to deliver ballots to and return ballots from each voter. Such ballots can be filled out in the comfort of our own homes. (As now, exceptions can be made for the homeless, but there will likely be fewer homeless if we revive our democratic republic.)
4. Make voting compulsory.
Voting is not a privilege but a right of all citizens. With the right comes responsibility. Failing to cast a vote should be punishable by law. The weirdly principled could still choose to leave their ballot blank, but they would be required to return their ballot—still casting a vote of sorts. Finding a pencil or a pen with blue or black ink and then schlepping a postage-paid envelope to a mailbox is the least we can do for our country.
5. Make room for multiple parties in our democracy.
Maybe those European democracies have a better idea. Vote for the party that best represents your interests. Parliament memberships are then proportionally assigned by vote totals. The parties appoint the actual members. I could vote for a Green Party candidate with a clear conscience. If the Greens didn’t get a majority, perhaps they could align in a coalition that makes a majority government. That is what the German Greens have done, and that’s why Germany is phasing out nuclear power.
6. Protect voting rights.
The Supreme Court gutted the Voting Rights Act of 1965. Congress should enact a new one that is designed to thwart judicial activism. All states should be equally treated in having to pre-clear any election law changes with the United States Department of Justice. While the administration of elections should continue at the state and local level, differing state and local rules should end. The right to vote should not vary among political jurisdictions.
Miscellaneous Reforms
1. Define a “person” as a member of Homo sapiens with a pulse.
Call me a radical, but I do not think that those who wrote, debated, and ratified the Constitution of the United States were thinking of a bloodless corporation as being a “person” under the law. Alternatively, make corporations subject to the death penalty when they kill people.
2. Add a constitutional amendment guaranteeing a clean, healthy, and sustainable environment.
The right to a clean, healthy, and sustainable environment should be embedded in the Constitution of the United States as an amendment.
3. Ratify the Equal Rights Amendment.
Sometimes the Constitution of the United States has to repeat itself. The Fourteenth Amendment (equal protection under the law) should have taken care of it, but the Fifteenth Amendment left behind women until the Nineteenth Amendment. Still, rights are not yet fully equal.
4. Rearrange the states.
Congress should establish the state of the Douglas Commonwealth and offer statehood to Puerto Rico. California should be split into two states, if not more. We shouldn’t have any states with more senators than members of Congress. The Dakotas should be merged, as should Vermont and New Hampshire, and Wyoming and Montana. Virginia should get its West back. Delaware should get all of the Delmarva Peninsula; Virginia and Maryland won’t miss it. Statehood for Alaska should be repealed and the entire territory should be made a national park.
Hmmm . . . Now I’m just dreaming. Time to stop.