The New Year and the Necessity of Constitutional Reform – The Missing Element in Today’s Political Discussion

Stephen Griffin

[Note: After patiently hearing me out on this topic since the election, Jack asked me to write this up.  The delay is entirely my fault.  The truth is I’ve been paralyzed by the realization that we sleep-walked through an entire election cycle with the major parties and candidates showing only the barest interest in reforming our system of government.  My New Year’s Resolution was to complete this essay.]

We have finished yet another election cycle without the major parties and candidates recognizing and addressing the most important issue facing the U.S. today – the necessity of fundamental constitutional and political reform.  Whatever you think about the major parties, however you regarded the candidates – none of them foregrounded reforming the process of governance.  Instead, the candidates and parties focused overwhelmingly on criticizing each other and promising to deliver particular policies.  Not that this is strange but just suppose the varied problems the country faces stem at least in part from not being able to adopt any policy at all through legislative process (think immigration).  That might direct attention to the fact that it is fruitless to make policy promises without simultaneously changing the decision making process itself to make those promises easier to debate and enact.

I do tend to bury the lede, so let me state up front:

The first quarter of the 21^st century will be remembered as a time in which as political process reform grew ever more popular with the public, elites of all stripes, especially party elites, grew ever more resistant to considering it.  The result was (is) a crisis of legitimacy in American government.

Why say elite “resistance?”  Consider that the lack of attention to the issue of process or governance reform by at least party elites (to say nothing of academics) is puzzling because advocacy of reform is an obvious pathway out of the box the parties find themselves in.  In the current moment this observation applies perhaps mostly to Democrats, who find themselves out of power in all three branches.  But it should have appeal for Republicans as well, at least if they actually want to accomplish something before the next election cycle hits.  The puzzle can be illustrated on several levels.

On a pragmatic level, voters have been clearly looking for “change” since the 2000 election and have been on the receiving end of precious little in terms of any hope of change in the process of politics.  Advocacy of decisive reform measures is an unambiguous way of putting your party and candidates on the right side of history by showing you favor change to a process most voters hate – that is, the process of contemporary politics itself, especially in Washington.  There is no better way to show clearly to the voters that you are the party and candidate of true “change” than to favor fundamental constitutional and political reform.

Moreover, favoring process reform is a clear-headed way to answer voters who wonder why past promises have not been enacted.  Sometimes the parties have referred in a vague way to congressional rules or intransigent opposition to explain why they can’t make forward progress.  Yet no party or candidate has consistently foregrounded the rules themselves and explained in plain terms to voters the costs of not only of keeping the rules the way they are but the costs of policy inaction.  Each party should have an agenda for changing the rules to enable American democracy to operate and adapt far more quickly to changing circumstances.

In addition, it should be appreciated that the constituency for reform is far broader than is often supposed.  My friends, political process reform is not just a matter of passing public interest – it’s super-popular.  Although a few individual ballot measures promoting electoral reform fell short in November, in general the cause is ready to take flight.  It's where the action will be in the near future (if leaders emerge and at least some elites are supportive). 

There are strong indications that the public wants change to the process of governance because of concern over how our democracy is functioning in general, not tied to any specific issue.  Consider the wisdom of Electoral Reform in the United States, a very useful volume hot off the press.  It is the product of a substantial and expert academic task force.  In the opening essay, Larry Diamond, Edward Foley, and Richard Pildes summarize the compelling evidence:

Recent surveys consistently find that 50 to 60 percent of Americans are not satisfied with the way democracy is working in the United States. And they think the problem is systemic. In a 2021 Pew survey, a stunning 85 percent of Americans said the US political system either needs “major changes” or must be “completely reformed”; 58 percent of adults who reported wanting substantial reforms said “they are not confident the system can change.” These figures were among the highest of all advanced industrial democracies surveyed in 2021. In 2022, Americans’ confidence in their national government was the lowest among citizens of G7 democracies (31 percent), about the level of Nigeria and Venezuela. And early that same year, a Quinnipiac poll found that substantial majorities of both Democrats and Republicans believed “the nation’s democracy is in danger of collapse.”

More evidence comes from the crazy quilt of policy that developed in the states during the long years (now decades) of lack of progress at the federal level on issues like minimum wage increases – as well as new issues forced on the states by the Supreme Court such as Medicaid expansion and abortion rights.  The continual results shown by the use of direct democracy in the states has shown very clearly that there is a set of policies strongly preferred by the public that can’t even make it to a vote in Congress, especially in the Senate given rules like the filibuster.  Congress’s rules of the road are not only outmoded – they have become a danger to democracy itself.  Persistent congressional inaction on a wide variety of issues is draining legitimacy away from the government, thus assisting anyone interested in promoting a shift to a system that is democratic only in name.  There is a substantial “majority rule overhang” consisting of frustrated voters which could be used to destabilize politics at any time.

Finally, at a global level, constitutional and political reform is the only way to address arguably the biggest problem in American politics, the problem of political trust.  This is a constitutional-level problem I addressed in my 2015 book Broken Trust. What contemporary leaders seem not to understand fully is that in the current environment, it is not enough to do X or Y, promise progress on this or that issue.  You must deal with a crippling global skepticism toward institutions (like yours) in general.  This means that prior to taking any particular action you must rebuild trust first.  The most likely pathway to do so with respect to the political system is to acknowledge in a frank way that it is misfiring due to outmoded rules (both constitutional in a hardwired sense and nonconstitutional in the sense of fundamental norms) and that you favor changing those rules.

Given these concrete and linked circumstances: (1) voters wanting “change” out of each election cycle (and not getting it!); (2) the need to explain credibly to voters why your party is not making more progress on its promises; (3) responding to the demand for process reform to save our democracy and advance policies favored by the vast majority of the American people; and (4) the need to restore trust in democratic institutions – given this massive outpouring of public concern, what are the parties offering?  Are they equal to the moment?  Well, no.  The parties appear equal only to another decisive faceplant when it comes to this challenge.

Elites seem terrified of even the remote possibility of fundamental change.  Here’s yet another article about how Democrats fear a possible shotgun constitutional convention.  While we can all be concerned about using a mechanism of constitutional change never used before, Democrats should be planning for a convention, rather than simply dragging their feet.  Both parties have had plenty of time to plan for this long-coming "constitutional moment," but they have been AWOL.  Let's state frankly that in the circumstances created by decades' worth of policy disasters, political distrust, and general bad behavior by elites, the people who want to avoid the issue of reform and keep it off the table are the problem.  They are, in effect, destabilizing the entire system of government from their fear of what will happen if we crack open just slightly the door to reform, whether through amendment proposals, constitutional conventions, changes to the judiciary or otherwise. 

Let's pause for a reasonable moment to notice that the parties have not been completely absent on the question of “reform.”  During the Biden administration Democrats advanced an updated Voting Rights Act (the John Lewis Act), the For the People Act (a massive if unwieldy compendium of voting rights, campaign finance, and ethics measures), statehood for DC and even Court packing. The Voting Rights Act update and the For the People Act died in the Senate.  Currently, Republicans have their own version of an electoral reform act directed mostly at the voting process.

Whatever the merits of these measures, notice that proposals for reform of how Congress operates are conspicuous by their absence.  In broad terms, Democrats over the past decade focused on what Rick Hasen termed the “voting wars,” while Republicans, at least at the state level, remain somewhat obsessed with redrawing the state-federal balance as a cure to all ills.  Apart from isolated ethics reforms directed at Congress and the judiciary, none of these measures address what most frustrates ordinary American voters – their sense that the parties are nonresponsive or even feckless when it comes to the relationship of what Washington elites care about versus what voters in the majority care about. And, by the way, what ordinary voters care about includes fundamental reforms to the political process.

Tom Edsall recently had a column in NYT quoting academic experts to the effect that Democrats are in a tough position -- they have to defend democratic institutions at a time that such institutions are widely distrusted.  No, no, wrong!  Democrats or Republicans interested in their country's future should avoid such a passive stance.  Their job is not to defend current institutional arrangements -- they are indefensible.  They can best protect the future of democracy by acknowledging past policy mistakes and getting on the bandwagon of democratic and constitutional reform.

As I argued in my 2015 book, by and large what got the parties into this mess is not that they disagreed with each other in a nonconstructive way, continually taking their toys, going home and waiting for the next election cycle.  What really got the current situation percolating was when the parties jointly agreed on policies that turned out to be spectacular failures – the deregulation of the financial sector and the Iraq War for starters.  I used the term “policy disasters” to describe these debacles.  To clean house and begin to restore public trust, the parties would have to admit that they were both wrong and try out some ideas to improve the process of legislating – something the parties have been studiously avoiding for decades.

Fortunately and with increasing urgency just recently, academics have been getting more interested in these issues.  It used to be that scholars like Sandy Levinson were voices crying in the wilderness pointing out the deficiencies in the Constitution.  Increasingly, scholars of all stripes are getting on board.  Serious scholars like Hasen write books proposing constitutional amendments.  There is genuine intellectual ferment on issues of constitutional and political reform.  Part of my bottom line is not to endorse any specific set of proposals here but rather to ensure, including academic elites, take these issues seriously -- so all to the good.  If you are a constitutional scholar and all of this sounds a bit out there -- check with your colleagues doing work on election law and voting rights who have been serving as canaries in the coal mine on these issues for some time.

Let's realize, however, that the most careful work so far is focused on our electoral system, as with the Electoral Reform volume cited above.  That's certainly appropriate, but we need to think more broadly and not just because the federal judiciary needs attention, as Steve Vladeck and others have urged.  The Biden Commission was a missed opportunity in this respect.

If party elites decided to be responsible on this issue, what would our world look like?  In the first place, there would be a "politics of amendment."  Amendment proposals would be a standard part of each party's platform.  That would signal voters where the parties stand on how the political system should be reformed and encourage a competition of ideas.  It would reassure the public that the parties actually care about the issue.  If Congress continues to show no interest in reforming itself, presidential candidates should "run against Congress," putting pressure on that body to adopt a sensible set of procedural reforms.

It might also be helpful for each party in Congress to formulate a list of their most desired ordinary policy measures.  Each party would commit to do comprehensive polling on which policies are preferred by national majorities and further commit to holding a vote in both houses of Congress in a given legislative session on the most preferred measures.  This would inject a measure of direct democracy, which has been so useful in the states in the current situation, into the national policy process.  Not voting on issues of importance is currently one of the most important things members of Congress do.  This has to end as part of working to restore public trust.

One scholar recently presented an arresting argument that America has lost its ability to imagine a different political future.  As I see it, this is a property only of political elites who lost their way.  Believe it or not, the American people do retain a residual expectation that leaders will arise to find a better way forward.  The public is waiting.  And there is no shortage of ideas about how to reform our system of government.  But elites have to lead, find a way to contribute, or give way to different generation.