Balkinization: David Brooks's unwillingness to connect the dots

David Brooks's unwillingness to connect the dots

Sandy Levinson

David Brooks has a column in today’s NYTimes entitled “One Reform to Save America.” Briefly, he calls for the adoption of the (uncited) FairVote proposal to get rid of single-member congressional districts in favor of multi-member districts elected with proportional representation, plus adoption of the alternative vote to assure that winners in First Past the Post systems will in fact have a plausible claim to have garnered majority support (and, therefore, an incentive to try to attract some centrist support). From one perspective, neither raises any basic constitutional issues. States tomorrow could, as Maine has recently done, adopt the alternative transferable vote, and Congress could tomorrow simply vote to repeal the 1842 legislation, reaffirmed in the 1960s, that requires single-member congressional districts.

So two cheers for Brooks, who is clearly correct about the consequences of our dreadful electoral system. But Brooks also demonstrates the obtuseness of the punditry by utterly failing to confront the fact that there is not a snowball’s chance in hell of Congress (i.e., the House of Representatives) actually repealing the 1842 act, which by definition would be a monumental disruption of the status quo and go a long way to challenging, if not eliminating, the present two-party duopoly. Indeed, the Republicans who control the Maine legislature are apparently resolutely doing what they can to avoid complying with the wishes of the people of Maine to reform their electoral system (just as, incidentally, they refuse to accept the people's verdict, in a referendum, to join Medicaid). I have quoted many times what I believe to be the late John Roche's useful addendum to Lord Acton's famous comment about power and corruption. According to Roche, "Power corrupts, and the prospect of losing power corrupts absolutely." Nothing demonstrates this more than the unwillingness to those who benefit from a status quo to accept the possibility that the political structures that reinforce their power need to be radically transformed.

If we were, say, California or a number of other largely western states, then “We the People” could try to achieve Brooksian reform by initiative and referendum, and I suspect there would be a good probability of success. That is how California adopted the so-called "jungle primary" system, where everyone competes for selection in the top two, who then fight it out in the general election. There is much panic, especially in California, that fragmentation among Democrats will lead to two Republicans being at the top of the heap in several otherwise easily contestable congressional districts. Does this demonstrate the problems with the jungle primary or, instead, with egoistic candidates unwilling to forego their moment in the sun? After all, there is no serious possibility that Donald Trump, who failed to gain a majority of the Republican vote in the overall Republican primaries, would have been nominated had the egos on parade throughout the campaign season ever been able to agree on who among them should be chosen to stop the Trumpian menace. Or if the Republican primaries had adopted single transferrable votes, then one suspects Trump might have been headed off. But, of course, none of this was possible. Among other things, the demonstrates the importance of formal structures.

But, alas, as I have repeatedly noted, our Framers had only contempt for the actuality of popular sovereignty and created a national constitution designed to eliminate the very possibility of rule by the people instead of elite representatives. So if one agrees with Brooks that electoral reform is necessary to “save America,” then it is basically logically entailed that one also support a new constitutional convention inasmuch as that is literally the only way to bring about the presumptively necessary reform in the absence of a Tinker Bell-like belief that the House would ever agree, in complete contradiction of Roche's dictum, to repeal of the current legislation and the "creative destruction" of the political system that allowed them to get to the House in the first place and then to assume positions of leadership. Brooks, like, say, Bernie Sanders, offers an altogether accurate diagnoses of the pathologies of our political system, but both have a quite stunning incapacity or unwillingness to connect the dots by suggesting that we have to address basic constitutional realities, including the possibility of a new constitutional convention.

I am well aware that almost all of my friends, family—the book that my wife and I co-authored, Fault Lines in the Constitution, concludes with a debate between the two of us on the desirability of a new constitutional convention—and professional colleagues are appalled by the very idea of a constitutional convention, and most are equally appalled by any suggestion of direct democracy. (This reflects, I believe, a fundamental loss of faith in democracy itself, inasmuch as it requires some degree of genuine regard for the ability of one’s fellow citizens to engage in Publian “reflection and choice” about fundamental issues facing the polity. The Trump phenomenon, of course, does nothing to enhance faith in democracy on the part of the left.)

So instead we (especially those of us in the legal academy) spend all of our time making “Herculean” arguments on how judges, correctly coached, could cure our ills. For some this involves expansion of the welfare state; for others, like devotees of Richard Epstein and Randy Barnett, it could lead to the invalidation of the New Deal, but both the Federalist Society and the American Constitution Society seemingly agree that the focus of our attention should be on the judiciary and on reinforcing the view that the Constitution is just terrific and needs only correct interpretation by honorable judges. I am outraged by the theft of the seat that should have gone to Merrick Garland by the GOP, but it is simply silly to say that a more progressive Supreme Court would be the cure for our national ills. But to accept the limitations of the judiciary, whether one is a liberal or a conservative, requires accepting the possibility that the Constitution itself needs significant non-judicially-imposed amendment, which only promotes feelings of despair and hopelessness given the true awfulness of Article V.

Posted 1:21 PM by Sandy Levinson [link]

Comments:

I think this discussion is somewhat relevant:

https://verdict.justia.com/2018/03/09/2020-presidential-election-legal-maneuvering

As to the Constitution, twenty-seven amendments etc. shows that it isn't somehow perfect. Various aspects of it is problematic, though we can debate what ones and the best approach in addressing it.

Without going into the specifics, the fatuousness of David Brooks is a given.

# posted by

Joe : 1:56 PM

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# posted by

Bart DePalma : 4:05 PM

We need to get back to first principles.

A national legislature is a collection of representatives of localities, whether you call them states, districts, provinces, etc. The role of a legislative representative is to serve as an agent for and to enact the will of at least a majority of people within his locality.

The best means of accomplishing this objective is for the locality to elect a single representative by majority vote.

If we replace first past post elections with a runoff system requiring election by majority, then voters would feel safe leaving a major party to cast ballots for a third party or independent candidate, confident the other party's candidate would not win with a plurality after you helped split the "progressive" or "conservative" vote.

If you wish a perfectly proportional system representing a majority of the voters in a nation state, dump the legislature altogether and elect a single dictator with a majority of the vote.

Grafting a proportional system onto a legislature represents political parties, not localities. The "centrist" governments created under these systems are better called "establishment" governments dedicated to diving up power between the various party establishments and maintaining the status quo.

By far the worst alternative is Brooks' proposed multimember district, where say five candidates with the most votes are elected to represent the district. Taking this system to the extreme, 96% of the voters could cast ballots for one candidate and 1% each for the next four and 3% of the voters could choose a majority of representatives in that district. This is counter-majoritarian insanity.

# posted by

Bart DePalma : 4:19 PM

“After all, there is no serious possibility that Donald Trump, who failed to gain a majority of the Republican vote in the overall Republican primaries, would have been nominated had the egos on parade throughout the campaign season ever been able to agree on who among them should be chosen to stop the Trumpian menace. ”

You know, Sandy, there’s nothing really shameful about holding minority, or extreme, opinions. I myself hold opinions on a number of topics which aren’t very popular. But as a matter of intellectual hygiene, you should remain aware that everybody doesn’t agree with you.

You hate Trump with an abiding passion, seeing him as little more than a shambling collection of faults. But this is not a widespread view among Republicans. And you should not be so sure a primary with fewer candidates would have prevented his victory. Maybe it would have, maybe it wouldn’t. You just don’t know.

Certainly, now that he’s been President for a while, he’s quite popular. (Among Republicans, anyway.) and he seems nearly certain to be the party’s 2020 nominee without facing serious opposition.

# posted by

Brett : 6:47 PM

Bart, if you really want proper PR with multi member districts, the simplest thing is to just give the winners weighted votes, according to their share of the vote. Perfectly feasible with today’s information technology, the votes would be cast electronically anyway.

# posted by

Brett : 6:52 PM

Where did you do your field work on elected officials?

# posted by

Thornton Hall : 7:53 PM

Oh, agreed: A constitutional convention is the only route to fundamental change: Politicians elected under the current system would never consent to change it, save perhaps in ways that further entrench them. (Hence the popularity of some campaign ‘reforms’ among incumbents. Always ‘reforms’ that disadvantage challengers.)

This is why I expect a constitutional convention to be the biggest constitutional crisis since the Civil war: No way is Congress going to let its death grip on constitutional change be broken, resulting in a tsunami of amendments unfavorable to them. They will refuse to admit enough states have called for one, or attemp to somehow take the convention over. (Who better than they themselves to be the delegates?)

# posted by

Brett : 8:11 PM

Prof. Levinson has a valid point about the Brooks op-ed: it doesn't address the seemingly overwhelming problem of how to get there from here. But op-eds don't always need to do that in order to make a valuable contribution.

As an advocate for proportional representation, I am glad to see someone of Brooks's reputation and influence writing about the subject. That's in spite of a truly unfortunate historical error (proportional representation didn't help Hitler come to power and might even have slowed the Nazi rise to power), and in spite of technical lapses in his description of the mechanics of ranked choice voting.

Bart DePalma's last paragraph (beginning "By far the worst alternative ...") shows that he has no clue how ranked choice voting works in multi-member districts. In his five-member district, 96 per cent of the voters who support a common slate would win all five seats (it takes one-sixth of the votes, plus one vote, or about 17%, to win a seat). Mr. DePalma, please visit fairvote.org or google "single transferable vote" before pontificating about this.

On the other hand, DePalma's comments have the considerable virtue of putting in very simple terms what the opposition to proportional representation is really about. He believes that representatives should represent plots of ground, and represent people only because they inhabit those plots of ground. He also appears to believe that political parties (which are groups of like-minded people acting together in the electoral arena) should not be the primary vehicle for representation. Who is the better spokesperson in a legislature for your values and interests -- someone who relationship to you is an accident of geography or someone whose relationship to you flows from a shared set of principles and programs?

# posted by

Bob Richard : 10:25 PM

". He believes that representatives should represent plots of ground, and represent people only because they inhabit those plots of ground."

Look, I advocate PR, but this is still a gross misrepresentation.

The reason you want representatives to represent people in particular places, is that people have interests that differ from place to place. Having representatives represent people living in particular areas increases the chance of those geographically driven interests actually getting some attention.

Think of it as a version of "functional representation".

At large districts make PR easier to pull off, but almost certainly also make democracy function worse.

# posted by

Brett : 7:44 AM

Brett: Bart, if you really want proper PR with multi member districts, the simplest thing is to just give the winners weighted votes, according to their share of the vote. Perfectly feasible with today’s information technology, the votes would be cast electronically anyway.

That ought to lead to some interesting politics. A representative with 1% of a district vote would take up space and waste time giving speeches in a House which now has nearly 2,000 members, but no one would talk to her because her minuscule vote is not worth taking the time obtain.

Once again, if you want a perfectly proportional and efficient government, just elect a dictator.

# posted by

Bart DePalma : 9:35 AM

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# posted by

Bart DePalma : 9:48 AM

Bob: On the other hand, DePalma's comments have the considerable virtue of putting in very simple terms what the opposition to proportional representation is really about. He believes that representatives should represent plots of ground, and represent people only because they inhabit those plots of ground.

This is precisely what our constitution was designed to accomplish and fairly represents the different interests of those localities.

He also appears to believe that political parties (which are groups of like-minded people acting together in the electoral arena) should not be the primary vehicle for representation.

While national parties can serve as a proxy for general shared values, they cannot represent the interests of a particular locality.

# posted by

Bart DePalma : 9:55 AM

SPAM's response to Bob at 9:55 AM:

"This is precisely what our constitution was designed to accomplish and fairly represents the different interests of those localities."

ignores "We, the People, ... " substituting "location, location, location." Maybe deep down SPAM has the "heart" of a real estate developer, like .... [drum roll] ... Donald J. Trump and rentiers reflective of The Gilded Age of the late 19th century.

# posted by

Shag from Brookline : 11:25 AM

Bob: Bart DePalma's last paragraph (beginning "By far the worst alternative ...") shows that he has no clue how ranked choice voting works in multi-member districts. In his five-member district, 96 per cent of the voters who support a common slate would win all five seats (it takes one-sixth of the votes, plus one vote, or about 17%, to win a seat). Mr. DePalma, please visit fairvote.org or google "single transferable vote" before pontificating about this.

Brooks description does not match STV in all particulars, but my scenario is possible under STV as well because, under this system:

(1) The population of candidates do not necessarily match the partisan and ideological makeup of the district;

(2) Voters do not need to list a full slate of candidates and normally would not if it means listing candidates they oppose; and

(3) By necessity, when an insufficient number of candidates gain the minimum number of votes, the remaining positions are filled by candidates with the most remaining votes.

Let's apply these limitations to a district with an electorate which is 51% conservative, 4% libertarian and 45% progressive which normally elects a conservative candidate under a single candidate system.

(1) The population of candidates are one conservative, one libertarian, and three progressives are running for three seats.

(2) The voters decline to vote for ideologically opposite candidates, except the libertarians choose the conservative as their second choice.

(3) You will end up with one conservative and two progressives with less than the minimum number of votes representing a majority conservative/libertarian district.

Pass.

# posted by

Bart DePalma : 12:26 PM

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# posted by

Bart DePalma : 12:36 PM

egoistic candidates unwilling to forego their moment in the sun is better expressed as egoistic candidates unwilling to forgo their moment in the sun.

# posted by

jimbino : 12:39 PM

Shag:

In general, urban, suburban and rural localities all have different interests and needs.

Within those groups, districts will have different needs. For example, a city like San Francisco with an economy based on tech and international trade will have different needs and interests than a financial center like NYC or an energy center like Houston.

The only way many of these interests can achieve effective representation in a national legislature is under a geographical system. Under a proportional system, the most populous and powerful control the system, while the rest get ignored at best and exploited at worst.

# posted by

Bart DePalma : 12:39 PM

egoistic candidates unwilling to forego their moment in the sun is better expressed as egoistic candidates unwilling to forgo their moment in the sun.

# posted by

jimbino : 12:39 PM

Here's a reminder of FDR's Rural Electrification:

http://rooseveltinstitute.org/rural-electrification-administration/

of how progressivism helped those in rural areas see the light. But Trump's blinded base of the Forgotten saw Trump as their White Knight (who has performed as the Dark Night of populism). Progressives did not forget the rurals.

# posted by

Shag from Brookline : 1:36 PM

Shag:

FDR relied on Congress critters from rural states and districts to maintain his majority and those critters ensured the interests and needs of their constituents like electrification were addressed.

Under a proportional electoral system, the Democrats predominant urban interests would have ruled and the rural electrification program may never have occurred.

# posted by

Bart DePalma : 2:28 PM

1935 was a tough time for Americans what with the Great Depression that Republicans left for FRD, especially Americans in rural areas. There were many other projects undertaken that disproportionally on a per capita basis benefitted the rurals during the Great Depression.

By the Bybee [expletives deleted, despite Gina), I'm not advocating a PR electoral system. Rather, that SPAM's Constitution does not look to life, liberty and happiness of "We, the People, .... " but to "location, location, location," not in the sense of how Native Americans looked upon the land as a collective interest, whereas SPAM's focus is upon his libertarian selfishness uber selflessness. Native Americans were conservationists. Much of the New Deal was about conservation, especially in the Western States with low populations. All locations have to be taken into consideration for conservation purposes, including clean air, clean water, etc. That's what progressives has sought, not SPAM's libertarian "I've got mine, so the hell with you."

The Republican Party had conservationist leanings once upon a time. But Trump has reversed this, as well as erasing Lincoln's Republican Party. Trump's Republican Party that SPAM supports fosters corruption. For SPAM, MAGA means a return to the late 19th century The Gilded Age that included the Robber Barons' rape of "location, location, location."

# posted by

Shag from Brookline : 3:04 PM

Bart wrote, " ... but my scenario is possible under STV as well because, under this system: ... [see original for details] ...

(3) You will end up with one conservative and two progressives with less than the minimum number of votes representing a majority conservative/libertarian district."

And if the same voters and candidates were in three single member districts, they would also end up with one conservative and two progressives. The one lonely conservative can't run in all three districts.

How often does a party or slate fail to run a candidate in a single member district in which they have majority support? That's about how often the same party would fail to run a full slate (or at least as many candidates as they expect to win seats) in a multi-member district.

# posted by

Bob Richard : 9:29 PM

BD: (3) You will end up with one conservative and two progressives with less than the minimum number of votes representing a majority conservative/libertarian district."

Bob: And if the same voters and candidates were in three single member districts, they would also end up with one conservative and two progressives.

Given that progressives make up only 45% of the vote in the original hypothetical district, that would require some fancy California style gerrymandering.

How often does a party or slate fail to run a candidate in a single member district in which they have majority support?

My hypothetical had at least one candidate for every ideology. Again, the point was the number and relative popularity of the population of candidates can easily skew a STV system.

Pass.

# posted by

Bart DePalma : 10:26 PM

Arrow's theorem, Bart: Once you have more than two candidates permitted, EVERY voting system fails under some set of circumstances. Different systems just have different circumstances.

By the way, you've repeatedly said this:

"If you wish a perfectly proportional system representing a majority of the voters in a nation state, dump the legislature altogether and elect a single dictator with a majority of the vote."

Could you please explain what you mean? What's perfectly proportional about a dictatorship?

# posted by

Brett : 7:32 AM

Brett at 7:32 AM asks SPAM:

"What's perfectly proportional about a dictatorship?"

Perhaps the response will focus on their shared support of President Trump shooting his arrows into the heart of America's longstanding governance of "the rule of law and not of men."

# posted by

Shag from Brookline : 8:46 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 10:52 AM

Brett: Once you have more than two candidates permitted, EVERY voting system fails under some set of circumstances.

My goal is for a majority of voters to elect the representation for the locality.

The only sure way of accomplishing this is a runoff system requiring the eventual representative to earn a majority of the vote.

Our first past post system often falls short in this regard, giving us plurality representation.

My problem with STV is a minority of the vote can elect a majority of the representatives for the locality. This system is counter-majoritarian.

BD: "If you wish a perfectly proportional system representing a majority of the voters in a nation state, dump the legislature altogether and elect a single dictator with a majority of the vote."

Brett: Could you please explain what you mean?

Sure.

Democrats self-segregate into a minority of districts and states, complain on the occasions when they earn a narrow plurality of the vote, but do not gain a majority in the government, and then demand we adopt a proportional national electoral system.

Under a proportional national electoral system, the only way to guarantee the party with the most votes gains control over the national government is to vote for a national party rather than local representation.

Because you are voting for representatives of a national party rather than your own locality, why even have a legislature? Why not vote for a single dictator to represent your favored party and be done with it? Governing would be much more efficient.

# posted by

Bart DePalma : 10:52 AM

Bart DePalma wrote: "My problem with STV is a minority of the vote can elect a majority of the representatives for the locality. This system is counter-majoritarian."

Only in a fantasy world where the majority group in the district would be dumb enough to not run enough candidates. ("Enough" means at least as many as the number of seats you expect to be able to win.)

I'm sorry to have to say this, but I now believe that DePalma isn't just misinformed. He's actually arguing in bad faith.

# posted by

Bob Richard : 12:31 PM