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National Constitution Center's Restoring the Guardrails of Democracy Project

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(This post was last modified: 07-09-2022, 11:57 AM by mikesez. Edited 3 times in total.)

The National Constitution Center in Philadelphia commissioned three teams of legal scholars to ponder the ways that our democracy and our rights are being undermined, and reforms that would preserve them.  They named the teams Conservative, Libertarian, and Progressive.  As I dove into the essays that each team produced, I expected them to conflict with each other, but, they largely do not.  They mostly identify unique problems, and most of the solutions could be done at the same time with little conflict.

https://constitutioncenter.org/debate/sp...guardrails

I'll save you some time with brief summaries:

Team Conservative is three never-Trump journalists, two of which have law degrees from Harvard, Team Libertarian is a Cato Institute fellow (not a lawyer) and a Law School Professor, Team Progressive is two Law School Professors.  So these are mostly lawyers and each team has at least one lawyer.

Team Conservative's report is mostly retrospective, highlighting "where we went wrong".  They hold up primary elections (both for Congress and for the President), C-Span, and McCain-Feingold's campaign finance reform as particular problems.  They point out that exposing the public to the partisan political process is usually bad.  They point out that the American Constitution was written behind closed doors in secret in Philadelphia, while the contemporary first French Constitution was written with members of the public cheering and booing from the gallery.  They think if the Democratic and Republican parties could be more free to raise funds and annoint candidates without participation or oversight from the hoi polloi, things would get better.  They think that the President is too powerful, making the stakes for each Presidential election too high (I don't think anyone disagrees with that).  They are hopeful that the current Supreme Court will take power away from the administrative state and give it back to Congress (this is already happening).  They think that repealing McCain-Feingold would be "the single biggest thing that can be done short of amending the Constitution" and that would help Congress get unstuck and start using the power that the Supreme Court wants to give them.  They think the Supreme Court also has too much power and they think the only solution to that is to amend the Constitution so that future amendments are easier.  The two amendments they propose are that future amendments could be proposed by a simple majority in Congress (rather than 2/3) and then ratified after agreement by 2/3 of the states (rather than 3/4), and that the threshold for overriding a veto should again be a simple majority, not 2/3.  They are right that amending the Constitution should be easier, but I don't think putting the process even more in Congress' hands is the way to go, because the direction of proposed amendments will always be to give the feds more power and less power to the states.  I think the right way to get more and better Constitutional amendments is to have a regular process, say every 10 or 20 years, for states to meet outside of Congress and discuss and propose amendments.  I also see what they're saying about overriding vetoes, 2/3 is too high and makes Congress too weak, but a simple majority is too low.  Team Conservative was the only team to discuss amending the Constitution and campaign finance at all.  Team Conservative then turns to education, and they advocate opening up for even more competition and less standardized curriculum in the education sector.

Team Libertarian agrees with Team Conservative that a President has too much power.  They write that laws must be changed to make it harder for Presidents to use and abuse emergency powers.  They write that the Electoral Count Act needs to be clarified, however I don't think this is actually possible or beneficial.  If we ever had a President and Vice President who wanted to overrule or ignore state electors, there will never be anything to stop them except protesters, militia, and armies.  I think a re-do of the entire 12th amendment, better accounting for how instantaneous communication is these days, would be better.  We leave vote counting at the local level to low level officials, and there is no reason to involve high level politicians like Congress and the Vice President in it at all.  The Libertarians go on to say that trying to regulate misinformation is a fool's errand, and that trying a national popular vote for President would be a disaster on many levels because of centuries of states administering elections on their own.  Then the Libertarians spend a whole section on what they call "foot-voting" or choosing to move to a place that is more in line with your values, whenever the place you live in now has leadership that doesn't work for you.  They point out that local zoning and licensing laws are making it harder to get up and move like this, and we should definitely look into relaxing or homogenizing these to make it easier for people to move.  They also say that high Federal spending is making it harder for localities to compete with each other this way, but they don't tell us where they would cut federal spending.  Finally, they spend their third section discussing criminal justice reform, advocating for jury nullification and reducing plea bargains so more cases go to jury trial, echoing the founders in that a powerful jury is just as important of a democratic institution as a powerful legislature.  Nothing in the Team Libertarian report conflicts with anything in the other two reports.  In as much as they were specific in their ideas, I agree with them.

Team Progressive has, surprisingly, a less ambitious report than Team Conservative.  They echo what Team Libertarian had to say about the Electoral Count Act.  They add that the Constitution gives each House of Congress the power to recognize or not recognize the election of its own members, and that this could lead to a situation where it's not actually clear who is in charge of congress and able to call for votes of recognition in the first place, with the Constitution giving the courts and the President no role at all in settling the matter.  They do not propose an amendment to the Constitution or any other solution, but it seems to me that only a Constitutional amendment would ever suffice to solve this problem.  This amendment should also clean up the process of counting electoral votes.  Both should be entrusted to the states without involving federal politicians.  But instead, like Team Conservative, Team Progressive thinks we can get better politicians by reforming the system of voting.  While Team Conservative focused on making parties stronger and enabling them to do more away from the public eye, Team Progressive instead thinks elections for the Senate need to be done using a Condorcet method, which would all but eliminate the possibility of a candidate winning when a majority of voters finds their views extreme.  A Condorcet method is used when there are more than two candidates, and voters rank candidates on their ballot from best to worst.  It uses those ranks to create a "round robin" tournament between the different candidates.  Usually the first step produces a clear winner, but there is occasionally a tie, and there are multiple methods to resolve such a tie, we would have to pick one of those methods in advance.  This would be a very good change that would definitely encourage Senators to compromise with each other.  But then they think elections for the US House should be done with a proportional method to reduce or eliminate the impact of gerrymandering.  They come up with a novel and probably unworkable method where voters first select what "constituency" they want to be in, and then that constituency elects however many members its population entitles it to.  It is true that a proportional or multi-member method would all but eliminate the impact of gerrymandering, but, it could introduce more gridlock because instead of 2 parties in the House there will be three or four.  We know from looking at countries like Belgium or Israel that if no party has a majority, even the most banal tasks for congress become the subject of intense negotiation unless one of the smaller parties totally subsumes their identity into a larger party.  It would be better if Congress would come up with some stricter and more enforceable rules for how much gerrymandering is too much, and then also elect members of the House from those districts with the same Condorcet method they propose for the Senate.  Team Progressive acknowledge that both of these ideas are very ambitious and unlikely to get implemented in the short term, but they say, even if you are not going to use a Condorcet method or Instant Runoff in the general election, it would still be a very big improvement to use one of these methods for the Primary election.  It is better for the Republican candidate to show that more than half of the Republican party supports them, than it is to let a person win the Republican primary with less than 50% of the Republican vote.  The good thing about all of these election reform ideas is that all of them fall under the current Article I Section 4 powers of Congress, and all of them could be popular reforms sold as giving power back to the people. While Team Conservative's ideas would have good effects but they are inherently anti-people. So very hard to sell. Team Progressive then kind of loses focus.  They advocate for criminalizing "election lies" which is probably unworkable.  They advocate for requiring Twitter to be a "common carrier" or else lose its immunity from lawsuits, and finally, like team Conservative, they turn to education, where they say that we need to use examples from sports to help kids understand what elections are really all about, just like we need to teach more statistics to help kids understand public policy debates.  I think this is all true; the current emphasis on algebra and trig over these topics turns out good engineers at the cost of turning out mediocre public citizens.  

All in all, there were a lot of good points in each of the three papers.
My fellow southpaw Mark Brunell will probably always be my favorite Jaguar.
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