A Faint-Hearted Parliamentarian’s Response to Commenters

Guest Blogger

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Maxwell Stearns

Introduction

It is indeed a privilege to have such an esteemed group of legal scholars and political scientists critically assess Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (JHU 2024).

Professor Erwin Chemerinsky (Berkeley) describes the book as “legal scholarship at its very best,” commends its accessibility, and appreciates that it “explains complex concepts in a clear way.” Professor Hank Chambers (Richmond) describes the book as “fantastic,” noting that “a full discussion would require multiple symposia.” Professor Anna Law (CUNY, Brooklyn) regards my goal of “radically alter[ing] the stakes by changing the rules of the game” as “exactly the right move,” characterizes the book as “erudite, thoughtful, and thoroughly explicated,” and considers my reform proposals “an excellent start to begin a national conversation on what the nation’s Third Reconstruction will look like.” Professor Sandy Levinson (Texas) considers Parliamentary America “a standing reproach to the intellectual conservatism of the [constitutional law] academy,” which he regards as “sclerotic” and in need of “repair” before such reforms can be taken seriously, given its “thorough-going ‘path dependence’ that makes it impossible to think outside of the Constitution’s box.” Stephen Griffin (Tulane) commends the book as a welcome contribution to a vital conversation, and Professor Lisa Miller (Rutgers) describes the proposals as “thoughtful and compelling,” while noting that the book encourages us to rethink early lessons in American civics. I recount these assessments not to rehearse compliments, but to situate the nature of the disagreements that follow.

I. What the Critics Disagree About—and What They Do Not

It is possible to divide the reviews according to whether the author regards my reform proposals as too radical (Chemerinsky and Griffin), as not radical enough (Levinson and Miller), or as about right (Law and Chambers). But such an approach would be intellectually lazy and substantively dissatisfying. Landing in the middle never suffices as a normative defense against opposing critics. Especially on matters of such great importance as our capacity to live in a thriving democracy, arguments demand responses. I intend to provide them. A more helpful division rests on competing methodological grounds. This allows grouping arguments conceptually even when authors’ ultimate substantive assessments on specific questions fail to align.

In framing the discussion this way, it is helpful to start with what the reviews do not say. None suggest my book misrepresents relevant constitutional structures, U.S. history, the foreign democratic systems I introduce, or the underlying methodological tools I employ. None criticize the logical foundations of my claims or question the overall reasoning that undergirds my radical reform proposals.

In my book I advance three constitutional amendments to solve the constitutional crisis we are facing: first, doubling the House with a system of mixed-member proportionality (MMP) corresponding to state-level proportionality; second, empowering House coalitions to select the President and Vice President based on pre-determined slates; and, third, providing the House a means of presidential removal based on a sixty percent no confidence vote for maladministration. To be clear, the absence of such criticism does not imply universal agreement with my methodological approach or endorsement of my proposals. But it allows me to distill any pushback, sometimes friendly fire, into three helpful groupings: alternative operational premises, differing approaches to reform, and competing endpoints of reform.

To begin it is helpful to contrast Professors Erwin Chemerinsky and Stephen Griffin, on one side, with Professors Sandy Levenson and Lisa Miller, on the other. The differences across these pairings do not center on whether my proposals are insufficiently or excessively radical. Rather, the pairings embrace alternative premises concerning how to define and achieve democratic objectives.

Professor Chemerinsky is a leading constitutional scholar who has contributed to contemporary reform debates. I respect those writing within the reform tradition of which he is a part, but a major motivation for writing my book involves a fundamental methodological disagreement. Chemerinsky has written his own thoughtful book in this space, titled No Democracy Lasts Forever. He echoes increasingly prevalent sentiments across the reform community, embraced, for example, by such scholars as Professor Danielle Allen (Harvard) and political scientist Lee Drutman (New America). Such writers recognize we are in a democratic crisis, and they propose a combination of measures that overlap or tend to align with those Chemerinsky advances: “eliminate the Electoral College, end equal representation of states in the United States Senate, stop partisan gerrymandering of districts for the House of Representatives, create term limits for Supreme Court justices.” Other examples include multimember House districts and various alternative voting schemes, such as top-four nonpartisan primaries and ranked-choice voting.

Chemerinsky’s central critique of Parliamentary America is that some combination of these more modest tweaks is truly the least radical means of radically repairing our broken democracy. In addition, joined by Lisa Miller and Stephen Griffin, Chemerinsky laments that I do not tackle campaign finance cases, including most notably, the problematic 2010 Supreme Court decision, Citizens United v. FEC, which allows corporations to outspend flesh and blood persons in political campaigns.

Professor Griffin goes further, claiming that campaign finance incentives preclude my electoral reform amendments from successfully generating a thriving multiparty democracy. He contends the two major parties will block third party entrants, rendering smaller parties incapable of raising the hundreds of millions of dollars necessary to compete nationwide. He further claims that if my amendments are enacted, “the multiparty coalition in charge of the House will meet a hostile reception in state legislatures, a potential source of instability.”

Once more, I have not grouped these critics based on agreement respecting specific proposals but rather based on a common premise. These arguments generally assume that the preferred pathway forward involves identifying a problematic observed behavior, here excessive corporate campaign expenditures, and ending the constitutional ruling that facilitates it. Professor Chemerinsky extends what I will now characterize as a doctrinal reform methodology to partisan gerrymandering. Chemerinsky would declare the practice of partisan gerrymandering unlawful or perhaps vest districting in nonpartisan commissions.

II. Methodological Fault Lines: Doctrine, Structure, and the Role of Incentives

First and foremost, my book rejects this approach as resting on a flawed premise. My alternative approach demands, as a critical intermediate step in assessing any proposed reform, that we identify the root structural causes—features of institutional design—that motivate the problematic behaviors we observe. Only then can we restructure the problematic institutional design to instead motivate benign behaviors. Without undertaking this kind of analysis, reformers risk naively imagining that legal declarations, or perhaps nominal nonpartisan bodies, are capable of generating improved behaviors notwithstanding that key political actors and others who profit by influencing them retain existing problematic incentives. It is precisely because I reject the premise that declarations to improve conduct can achieve their goals absent structural changes that motivate benign behaviors that I argue neither to ban partisan gerrymandering nor corporate political expenditures. Instead, I advocate institutional changes affecting underlying incentives in a manner that blunts or discontinues these problematic behaviors.

Money in politics is inevitable. And yet, within a well-functioning multiparty system, corporations will not be motivated to deploy their financial resources in a manner that continues driving our two dominant parties increasingly far apart. As explained below, this point is reinforced based on principles of finance. Once we have blunted most problematic campaign financing incentives it also becomes possible to engage with possible further reforms, even including public campaign financing. More importantly, my goal is not to ensure a perfect system, but to ensure a thriving multiparty democracy genuinely capable of further meaningful reform.

Professors Chemerinsky and Griffin both contend that I put too much stress on parties. Because parties quickly emerged an unexpected feature that undermined the way the Constitution’s framers expected our system to function and have become an especially corrosive force in undermining basic democratic functioning in the information age, I am certain my focus is essential, not excessive. My central claim is that in any democratic system parties are inevitable. As political scientist Jack Santucci has aptly phrased it, “The choice between two or no parties is false. The real choice is between two or more parties.”

Chemerinsky relies, as a counter example to pressing for more parties, on the Israeli system, which has disturbingly tacked increasingly far right. Pressing from the other side, Levinson observes “the UK has had, in the past decade, six prime ministers selected by the members of four different parliamentary bodies.”  As a critique of my thesis, these examples are curious. In Parliamentary America, I introduce both as part of the virtual world tour precisely to demonstrate how not to pursue parliamentary reform. Rather than refuting my argument, the Israeli and UK examples help make it by demonstrating the importance of institutions in calibrating a sweet spot with respect to the number of parties—not too many, not too few.  

The central challenge democracies inevitably face is extremism, whether in the form of an unwavering commitments to ideology or, instead, manifest through a system bearing too few or too many parties. In a democracy, an ultimate question of constitutional design is now to forge institutions that eschew such extremes.

England, like the United States, is majoritarian, with two dominating parties. Israel is purely proportional, coupled with a low party-qualification threshold, yielding too many parties. A centerpiece of my book, the world tour, demonstrates the structural features that generate these problematic results and explains how to avoid them. I focus in particular on mixed-member proportionality (MMP), which is designed to strike this balance.

Approaching this from the other side, claiming I do not go far enough in my proposed reforms, Professor Levinson calls me a faint-hearted parliamentarian. My proposals leave in place major features of our existing constitutional design: presidential powers, the Senate’s state-based apportionment and coequal lawmaking role with the House, life-tenured members of the Supreme Court, and expansive presidential powers. He observes that rather than embracing a pure parliamentary system, my reforms are better viewed as a faint-hearted move in that direction, analogizing to Antonin Scalia’s self-described faint-hearted originalism. 

I am happy to own it. I do not advocate Parliamentary America because of any dogmatic commitment to parliamentary democracy. For one thing, many parliamentary schemes, including both the UK and Israel, are prone to antidemocratic problems of comparable magnitude to those we face here in the U.S. with two-party presidentialism. My goal is not an instantiation of any formal democratic scheme for its own sake. Rather, as my subtitle makes plain, my goal is the least radical means of radical repairing our broken democracy. And with that, as Lisa Miller explains, in my book’s final substantive chapter, I set out possible reforms worth considering, but after we solve the crisis we face.

III. Incentives, Parties, and Least Radical as Most Promising

I agree with many of Professor Levinson's views concerning further reform possibilities. My book is not about what a perfect, or even best conceivable, American democracy might look like. Rather it is about how we ensure a thriving multiparty democracy truly capable of continuing the fight toward “a more perfect union.” A defining attribute, presently absent, is the capacity to bring about other meaningful reforms. But there is also a caveat. We must avoid a common mistake among reformers. We might fail properly to anticipate future challenges and might wrongly imagine the need for reforms to fix future problems that, with wise remedies put in place, instead fall away. Another premise of my book is the importance of humility over hubris.

Professor Levinson infers that I am opposed to a constitutional convention, which he welcomes. In truth, I am ambivalent. Thus far all amendments—and they have been rare—have come through Congress. I have structured the electoral reform amendments with that in mind. Mine are the only proposed reforms that ensure sitting members of both houses of Congress retain their offices, in their districts or states, after the proposals go into effect.

Even so, as I observe in the book, were a constitutional convention to take place, it would likely embrace some combination of the proposals advanced by, among others, Professors Chemerinsky and Levinson. As my book explains in detail, such reforms cannot end the crisis we face. But even setting that aside, if approved, several of them would threaten the status and power of those traditionally holding blocking power, namely sitting members of the Senate and House. Professor Levinson aptly captures the challenge, resting on “‘Roche’s dictum,’ named after the late political scientist John P. Roche: ‘Power corrupts, and the prospect of losing power corrupts absolutely.’”

Should a convention take place and advance a combination of such commonly discussed reform proposals, my electoral reform amendments provide Congress with an essential bypass. They empower Congress, as it has always done, to initiate the amending process. These amendments avoid the threat to their status and power while ending the crisis we face. I remain ambivalent about a convention because I seriously doubt it capable of generating meaningful reforms. But I also see it as an alternative pathway to enacting the electoral reform amendments I propose.

In saying this, I am sensitive to Griffin’s closing sentiment: “In a democracy . . . it is best to make arguments that appeal to popular opinion,’ as opposed to “build[ing] an argument . . . by appealing to the political self-interest of the House members who will gain [or at the very least, not lose] power (!).” But, once more, absent the intermediate step of identifying how to revise institutional incentives to transform problematic observed behaviors into desired benign behaviors, it is impossible to envision a viable path forward to a thriving multiparty democracy.

This insight helps further unpack an earlier discussion. Professors Chemerinsky and Griffin each note my failure to tackle campaign finance. Professor Griffin regards campaign finance incentives as fatal to the viability of third parties. With respect, I believe he is mistaken. Our disagreement rests less on empirical than analytical grounds arising from general principles of finance, which also apply in the campaign context. Griffin assumes those who make contributions or who undertake direct expenditures base their decisions primarily on aggregate assessments of relative party strength. With respect, this miscomprehends both financial incentives and the role of third parties in global multiparty systems.

Investment decisions are inevitably made on the margin, based on expected marginal return or marginal rates of substitution. Those assessing campaign contributions or direct expenditures in systems in which third parties have the capacity for a decisive role in forming the government will rationally consider the expected return of each marginal expenditure. When the status of third parties changes from spoiler or randomizer to making or breaking governing coalitions, such marginal assessments fundamentally change.

This also explains my disagreement with Griffin on whether third party success demands amassing resources and infrastructures that match our existing major parties so that smaller parties might compete on national scale. One reason I take readers on a virtual world tour is to demonstrate that in thriving multiparty systems, smaller parties can play a key role even when they capture support only within a discrete geographical region or among a smaller subset of the electorate as compared with larger parties. In the MMP system I advocate for the U.S., although two parties will continue to dominate districted House and Senate elections (as opposed to party-based House elections), the same party combination will not dominate each region of the country. This also explains why Griffin’s claim that state general assemblies will not welcome third parties misses an important dynamic effect of my proposed reforms.

Effective reform demands understanding how alternative democratic systems work. With respect to the many thoughtful writers in the reform community, including some contributors to this symposium, this too often has emerged the critical missing step. A central premise of Parliamentary America, and truthfully all of my work, is that it mistaken to assume that once a new set of rules is implemented, key actors will behave as if they remained governed by prior rules. As Professor Law aptly observes, changing the rules changes the game. I wrote my book to explain how changing our rules will transform a vital high stakes game to ensure not simply that our democracy survives, but that it truly thrives.

In the separate context of partisan gerrymandering, Professor Griffin embraces these very insights. In contrast with Professor Chemerinsky who would declare the practice unlawful, Griffin observes that proportional representation succeeds in eliminating incentives for partisan gerrymandering by taking away the gains. Both in campaign finance and in partisan gerrymandering, it is essential to focus on institutional incentives as the critical intermediate step in devising solutions to end antidemocratic behaviors.  

Drawing upon the work of political scientist Jack Rakove, Professor Law cautions that in one respect, at least descriptively, my book might not go sufficiently far in characterizing our democracy as failed rather than merely in crisis. I do not necessarily disagree, although my sense is that the distinction matters more historically than prescriptively. I put Law in the camp claiming I get things about right based on her review’s overall tenor and her support for my proposed reforms at the very least as a critical starting point in thinking through genuine solutions. As Law notes, Parliamentary America was published before the outcome of the pivotal 2024 presidential election. I take admittedly troubled comfort in not having conditioned my assessment of our nation’s ongoing democratic viability on how that election came out. At the very least, we were already then in a constitutional crisis.

Law identifies the media as a major cause of our democratic failure. I devote a chapter of my book to the history of media, and I agree with Law that however divisive a role social media played at the time of publication, matters have since grown notably worse. Although I do not claim my reforms are a panacea, I do maintain that by creating more parties—and thus more focal points or democratic anchors—the electoral reform amendments would, over the longer term, blunt the capacity of social media to continue driving an ever-widening wedge between two dominating parties.

Professors Miller, like Professor Levinson and in contrast with Professor Law, favors a more ambitious approach. She is concerned my least radical reforms will not ensure desired progressive legislation, at least any time soon. She lists the following as examples: “The Fair Labor Standards Act, National Labor Relations Act, Voting Rights Act, Medicare and Medicaid, the Affordable Care Act.”

Along with Miller, I embrace these statutes. But my goal is not to ensure particular policy outcomes. Instead, it is to end the constitutional crisis that we face by producing a thriving multiparty democracy. A major challenge in our system is the inability of moderate Democrats and moderate Republicans to join together to effectuate policies widely supported in the electorate. The examples Miller provides were mostly marked by bipartisan congressional coalitions. While the Affordable Care Act was decidedly partisan, it is noteworthy that Obamacare was originally Romneycare, a Republican governor’s conception that in a remarkable historical twist Mitt Romney later campaigned against as the 2012 GOP presidential candidate!

A challenge in our time is that the GOP has since been overtaken by MAGA, and the Democratic party is at increasing risk of being controlled by its democratic socialist wing. While I am sympathetic to those who hope for a system that ensures their preferred policies, thriving democratic systems cannot, and honestly should not, do that. Systems that aim to ensure specific policy outcomes can do so only by entrenching power against political opposition. Such systems threaten, rather than exemplify, the highest ideals of democracy. When it comes to policy, thriving democratic systems leave everyone frustrated much of the time. That too is both a feature and a bug.

Instead, what reform should do is motivate political leaders to avoid extremes and to work with others sharing that commitment. This facilitates outcomes that move toward the political core. That is what my least radical proposals are designed to do.

Rewiring Democratic Imagination

Professor Chambers’ contribution operates at a different, and crucial, level, and it provides a perfect place to close. Chambers emphasizes the need to rewire our civic brain as both a challenge and promise in devising a pathway toward meaningful reform. In my book, I explain that voters identify their ideology based upon upbringing, socioeconomic status, race, religion, education, among other demographic attributes, as these relate to the limited heuristics available within our society. In the information age, our two dominating anchors have grown increasingly far apart. But these anchors are endogenous to, or a function of, our particular and peculiar constitutional scheme. Our system eschews alternatives, punishing their supporters and candidates, as spoilers or randomizers.  

The electoral reform amendments will produce more, and better, anchors. And if my reform proposals are enacted, they will encourage moves toward the core, thereby discouraging increasingly extreme political behaviors.

The rightful challenge, as Professor Chambers observes, involves ratcheting up this heuristic challenge, which I discuss in the book, in yet another important way. Here the goal is to change our conceptual anchors as to what is possible, not on policy, but for our democracy. He is right. And I wrote this book hoping to do just that. The first step is educating the public on the need for radical—if least radical—reform.

It has truly been an honor to partake in this symposium. I am indebted to Jack Balkin and Mark Graber for arranging it, and to all the thoughtful writers for so meaningfully contributing to these vital conversations.