Fixing the Senate, Part III: Your Correspondent Replies to Every Single Commenter
"Highlights from the Comments"? BAH! Lame! Let's spend several weeks of writing time answering them ALL!
Well, I did promise!
I have a long-running series called Some Constitutional Amendments, wherein I try to save the country by proposing modest, politically-neutral, structural reforms to the U.S. Constitution. These “realistic” amendments are designed to fix defects in the Constitution in “conspicuously non-partisan ways,” because partisan amendments are impossible in our polarized era.
In June, I wrote a short, opinionated history of the collapse of the U.S. Senate. Intended as a moderating counterpoint to the populist House of Representatives (like boron control rods in a nuclear reactor), the Senate decayed into a second, dumber House. This, I argued, was due to oversights in the Constitution, particularly its failure to foresee organized political parties.
In July, I wrote up my proposal to fix the Senate. The article had several interesting features:
It was the longest article I’ve written for Some Constitutional Amendments.
It was the most complicated idea I’ve had for Some Constitutional Amendments.
It was the least popular thing I’ve written for Some Constitutional Amendments.
This last was not even a close call. The article had 35 comments, and I do not think a single one said, “Yes, great idea, let’s do it!” You were all wonderfully good sports about it, of course (as the De Civitate readership always is), and you said lots of very kind things. Nonetheless, you largely thought that, while I had many interesting and provocative ideas, I had clearly taken a left turn off an embankment to firey doom about halfway through. A representative example:
TARB: Unfortunately, I feel like this one has gone afar of the idea of “propos[ing] realistic amendments to the Constitution”. Granted, constitutional amendments are so difficult that I’m not sure much of anything can be considered realistic, but prior ones were the sort I could see having some kind of actual possibility, even if I thought some were questionable.
Fair enough, dear readers! If even you, the sort of wonks who read long articles about constitutional amendments, think my proposal is too weird and confusing to work, then it is a foregone conclusion that the voting public will, too. The amendment, at least as I proposed it, is a dead letter.
However, I promised to reply to all your comments in a future article… and I still think that’s important, because, as problematic as my proposal obviously was, I think it’s well worth thinking through all your objections so that we can find a better approach.
Also, it’s well worth arguing with all your objections for petty vindication!
A forewarning: because a lot of the comments on my proposal were pretty technical, this article is going to be pretty inside-baseball. It’s also quite long, because I promised to reply to ALL the comments. If you bounce off of it, I won’t blame you a bit.
A Quick Recap
You will recall that I had three substantive objectives for the revitalized Senate. From most important to least:
The Senate should be composed of wise, accomplished statesmen, elected by their state governments. They should not be elected by the People, either directly or (worse) indirectly, through partisan political endorsements and (gulp) political party primaries, which are engines of extremism and madness, not wisdom or statesmanship.
The Senate should be small enough to deliberate effectively.
Each senator should be ideologically close to her state’s median voter. This would lead to a more moderate Senate, which would be more capable of playing the roles the Founders assigned it: moderating the populism of the House, and achieving consensus in cases that require detached, sober judgment (like treaties and impeachment trials1).
I also had one prudential objective:
Senate elections must avoid deadlocks, because voters, who loathe deadlocks (which temporarily deprive them of representation in the Senate), passed the Seventeenth Amendment in the first place in order to end deadlocks. Although we still have some deadlocks in the form of post-election lawsuits, the amendment largely worked, and voters are unlikely to accept the return of deadlocks.
I won’t fully restate my reasons for these objectives, since this post is going to be long enough anyway, but I explained more in “A Senate, If You Can Keep It.” These objectives, taken together, led me to my solution. I’ll put the full text of my amendment proposal in this footnote,2 in case you want to remind yourself of all the gory details, but I’ll summarize:
Amendment XXXIII
The U.S. Senate has only one senator per state, chosen by state senates.
State senates have two calendar days to elect a candidate by a two-thirds supermajority.
If the state senate fails to elect by the deadline, a contingency election kicks in, forcing a quick (but moderate) resolution:
All experienced state senators are ranked by an algorithm called DW-NOMINATE, which reliably detects partisanship. The 10% of state senators in the middle (who are presumably closest to the state’s median voter) are nominated.
The state senate votes on these nominees by ranked-choice ballot.
If exactly one nominee beats every other, he is elected senator.
In rare cases, there will be no single winner. (This is akin to someone winning a plurality but not a majority in a popular election, but much rarer.) If that happens, the nominee with the least votes is eliminated from all ballots and votes are recounted. Repeat until there is a single winner.
The House of Representatives can amend Section 3 (the contingent election procedure) by a three-quarters supermajority.
Pledges, vows, endorsements, instructions, and advice given to a state senator are null and void. State senators cannot be bound, in law or conscience, to vote for any specific candidate. Sorry, political parties!
[This section handles the details of the transition from two senators per state to one senator per state. It is very boring and no one commented on it.]
Someone who violates this amendment can be sued in a federal court and forced to comply with it.
Now, let’s see what you made of it!
Fundamental Objections
Several of you good people suggested that my original, substantive objectives are just wrong, or at least misguided, and suggested jettisoning one or more of them in favor of the others:
: This is not going to sound good to American ears, but if you really want a representative body full of moderates (relative to the population as a whole, so not necessarily moderates in the sense that politics currently has it), make voting mandatory.
This would seem to tend to push a body toward moderation, at least in a certain sense. However, my aim was a deliberative body composed of wise statesmen. As I’ve often argued in this series, mass popular election tends toward demagogues. Mandatory mass popular election forces on us an even less-informed, less-engaged electorate than the current one, which means it tends even more toward demagogues. Moderate demagogues? Sure, maybe!3 But you won’t build a talented Senate with virtues and vices distinct from the House; even if it works perfectly, you’ll just end up with a second House, still malapportioned, if perhaps rather blander.
There’s a case to be made that my whole vision for American government is based on overvaluing federalism, checks and balances, and the Constitutional design, while undervaluing democracy, adequate representation, and the Westminster design. (Daniel often makes that case, and makes it very well!) However, for me, electing wise, talented people to the Senate on the honest recommendation of their legislative peers is the most important objective. It does not make sense for me to sacrifice it in order to secure the lesser objective of moderation.
However, if you have different priorities than I, Daniel is well worth listening to!
TARB: I wonder if perhaps [party-driven proportional representation] could work as a substitute for the job of how state legislatures previously chose the Senators. Because when it comes to proportional representation, the candidates are not chosen by the public, but by the parties. Political parties may not necessarily be as “in the know” about passing legislation as an actual legislator, but they obviously have incentive to get their policies enforced and would do at least some kind of vetting for who they pick.
Now, I haven’t lived in a country with proportional representation so I’m not sure how it works out in practice in terms of choosing candidates. It certainly nixes any idea of people who go somewhat against their party, like a Joe Manchin or a Suzan Collins, because obviously a party is going to be choosing reliable party stalwarts.
This approach would certainly change the composition of the Senate! Just not in ways that align with my goals—nor, I think, in healthy ways. This approach gives up entirely on senators being near their state’s ideological median in order to hand candidate-selection power to party bosses.
Now, I do think that there are merits to having party bosses in smoke-filled rooms select candidates; they do a better job than dreadful mass primaries. However, they will still be selecting candidates to win a general election, which means they will be putting forward candidates endowed with “talents for low intrigue, and the little arts of popularity,” in the words of Federalist 68. Using a party-driven system of proportional representation means, moreover, that the individual identities of these candidates will be subsumed under the identity of the party leader, who is (inevitably, unavoidably) a demagogue, whether of the Boris Johnson “empty suit” persuasion or the Jeremy Corbyn “oh dear God no” variety. This is the system we are trying to break.
I’m afraid it gets worse. Shifting to a system of national proportional representation would break the connection between states and the federal Senate that we were trying to recover. Remember when I noted, “It is probably not a coincidence that, shortly after the state legislatures lost their ability to police the boundaries of federal power (in order to protect their own), the size, scope, power, and prestige of the federal government exploded.” I think that was bad!
It would also, for the first time in American history, force an election to be fully federalized, since a system where the national popular vote tally actually matters would be too tempting a target for officials in red and blue states to resist. It’s one thing when California’s poor voter ID controls allow illegal immigrants to have a say in who represents California in the Senate. It’s quite another thing when California’s poor voter ID controls give California’s non-citizens a say in who represents Alabama in the Senate! Today, America survives because so many of our perennial election disputes can’t possibly make a difference to the final outcome. Federalism gives us an “ice cube tray” approach, so one state can bungle an election without dragging the other forty-nine down with it. National proportional representation, however, would make every dispute, everywhere, potentially outcome-changing. I therefore tend to think that the fastest road to civil war runs through federal elections.
However, shifting instead to a system of state-based proportional representation in the Senate would require a radical increase in the number of senators (Daniel suggests some 600 members), which would run counter to my objective of establishing a smaller Senate, where every Senator knows every other, and thus becomes more capable of genuine deliberation.
Finally, this model would not work in the current American party system. In order to manage list-based proportional representation, without it immediately collapsing into the same populist horror show that we have today, you must have a certain kind of political party. As Daniel noted in another comment, that kind of political party is illegal in the United States. It has been outright illegal since the Progressive Era, and has never had much purchase in our political traditions.4 Amending the Senate to allow this would thus require smashing and rebuilding the entire American party system. As admittedly ambitious as I was in my proposal, this strikes me as too much for one amendment to take on, especially as a side effect.
This goes some length to explaining why I mostly ignored other legislatures around the world, as Tarb also suggested:
TARB: But what really strikes me as odd about this one is how much theorycrafting there is. Various other countries have bicameral legislatures with an upper house and lower house. Why not look at any of them for inspiration to see if perhaps they might have alternate ways that, if not necessarily what one would want for the US itself, at least be something to springboard ideas off of? I didn’t really see much of that in the article. There’s dozens of other countries that have a bicameral legislature, so looking at them to see how they elect the upper house for comparison seems like it could be ripe for ideas.
I was attempting to restore something the Founding Fathers had attempted but failed to establish: a truly deliberative federal Senate, with the aristocratic virtues of the House of Lords (back when the English aristocracy was a serious and powerful force), but with members chosen by republican institutions for their merits, not by monarchs for their blood.
Most modern democracies around the world are not children of this tradition. They find their roots in the ideology of the Progressive Era around the turn of the last century: the best way to ensure the People are heard is to ensure as few mediating barriers between the People and policy as possible. Those that weren’t actually born into this milieu have been badly eroded by it. As a result, democratic-republican systems around the world today are (in my view) dangerously similar to one another, vulnerable (like the global population of cloned bananas) to the same ailments. It is therefore unsurprising that the crisis of democracy is global.
To my knowledge,5 no one in the past century or so has even attempted what the Founders and I aimed at, so I just didn’t think it was valuable to look to their examples. If that sounds contemptuous of other countries, it shouldn’t. After all, the example I did look to, America’s example, was an example of failure.
“Shovel-Ready FORTRAN Jobs”
There were lots of comments that the proposal was too complicated. For example:
: You left out a key benefit of your proposal: it would create new shovel-ready jobs for Fortran programmers! (DW-NOMINATE is written in Fortran.)
As you acknowledge, this proposal is extremely complicated. Unfortunately, the proposal is so complicated that I worry it would diminish the Senate’s legitimacy. The People may not directly elect their Senators, but they must at least understand the process by which they are elected!
The objection is obviously correct. One of my evergreen goals for Some Constitutional Amendments is simplicity: easy to understand, easy to defend, easy to implement, easy to double-check afterward. This feature is needed to build political support for a proposal, to defend the proposal when it (inevitably) faces organized attack, and to sustain the amendment over generations. Simplicity also happens to be an important feature of blog posts, as we see here!:
TARB: This one, though, I read through the article and I’m honestly still confused by the concept. That’s not a great sign. Granted, I’ll admit I did a bunch of skimming of the later parts
Oh, dear, a blog post where a reader starts skimming is not a blog post that is doing its job as a piece of writing (at least, not with that reader).
As I had to acknowledge in the original piece, I abandoned simplicity because I felt I had no better choice. I could not find a way to achieve my other objectives without sacrificing simplicity. I thought that simplicity was the least costly thing to sacrifice. As we will shortly see, some of you thought differently. Fair enough! Trade-offs are hard, and reasonable people disagree about them! That’s why it’s so important to minimize the number of trade-offs in one’s proposals, and my proposal fell short of that.
One minor thing before I move on, though: I actually don’t think “the People need to understand the process by which their senators are elected”! The People mostly do not understand almost anything about how government works. It is only thanks to the recent electoral college crises (in 2000, 2016, and 2020) that our generation understands the electoral college. The pundit-watching class (a narrow slice of Americans) was vaguely aware of it and mentioned it every few years if polls looked tight. Someone on CNN would explain it to you on election night as they watched the state returns come in. However, even today, if you ask someone for whom they voted for President in 2020, they’re going to say Joe Biden or Donald Trump, not Melvin Aanerud or Janet Beihoffer—even though they did, in fact, cast their vote for either Melvin or Janet, not Joe or Donald. Almost nobody understands the 12th Amendment contingent election in the event of an electoral college tie; ask around to see who understands the unit rule.
The People don’t care how it works, as long as (1) it does, in fact work, and (2) they don’t have to be the ones worrying about it.
Unfortunately, during an amendment proposal process, the People do have to worry about it. If my proposal somehow came before the states for ratification, I would recommend explaining it to voters like this:
This amendment forces two-thirds of the state senate to agree on a consensus candidate for Senate. If they can’t agree in two days, it forces them to use a complicated, annoying procedure to elect a moderate instead. They’ll usually agree on someone before it comes to that, because it would be way too annoying otherwise.
This isn’t ideal. The ideal would be to have an actually simple amendment proposal. I just think that getting stuck with a complex proposal is not, in itself, necessarily fatal for voters.
Deadlocks Don’t Matter?
Several of you recoiled so much at the complexity of the proposal that you decided that the less-costly tradeoff would be to sacrifice the proposal’s anti-deadlock provisions:
: The more I think about this, the more it makes sense to just let the single Senate seat from a given state go vacant, if the state senators deadlock. There will be enough states that are able to elect Senators (due to one-party domination if nothing else) that the “purple” states will have a powerful incentive not to be left out, and come to a consensus to elect someone.
CHRISTOPHER M. RUSSO: The epicycles of the proposal stem from contingent elections as a method to break deadlocks. Why care about deadlocks? Previously, you mention that some Senate seats would remain open for months (sometimes years) because state senators could not agree on a candidate.
So what? If the Senate has a quorum to conduct its business, then let a state deprive itself of representation until it get its act together. Ultimately, if the state senators are unwilling to compromise, then they face accountability from voters whom (it seems) do not like deadlocks.
One of the major causes of the Seventeenth Amendment was senate deadlocks, which could leave a state’s U.S. Senate seat empty for months or years. Voters got really upset about this, and passed the Seventeenth Amendment partly to end deadlocks, which (unlike other goals of the Seventeenth Amendment) mostly worked. My proposal therefore insisted on avoiding them.
However, Christopher M. Russo is exactly right that all the epicycles in my proposal stem from that. If I had been willing to accept the possibility of a deadlock, my proposal would have been ever-so-simple:
Each state gets one senator.
Each senator is elected by a two-thirds majority of the state senate.
The end. Celebrate with a root beer.
I think the mistake here is assuming that partisans are primarily loyal to their states rather than to their parties. As we have recently seen in the escalating gerrymander wars, especially in Texas and California, in polarized eras, both partisan legislators and their partisan voter base are perfectly happy, even eager, to do obvious violence to their state’s political system in order to advance the power of their national political parties.
These partisans have very little interest in ensuring that their state has representation in the federal Senate. Their concern is ensuring that their party has maximum advantage there. This gives minority-party legislators in purple states very strong incentives to deliberately and permanently deadlock their senate races, if at all possible. After all, if they cooperate and make a deal, the best they can hope for is to elect a moderate member of the opposite party, who will oppose the minority party in Washington more than half the time. If they refuse all cooperation, however, they can keep the state’s seat in Washington empty forever. Their voters will reward them for this behavior, while punishing them if they dare cooperate.
As a result, if we adopted this rule, I expect that, under most circumstances, only states where a single party has a legislative super-majority would be able to elect a U.S. Senator. Technically, sure, the purple-state voters ought to hold obstructionists accountable, putting a stop to all this, so, when they don’t, they’re technically getting what they deserve.6 However, we’re going to find ourselves with 10+ states more or less permanently lacking representation in the U.S. Senate. It’s hard to see that as a win for republican institutions and federalism.
You could soften the blow by abandoning my super-majority requirement to elect, returning to a simple majority (or double-majority in both houses)… but then you’re back to parties electing their favored candidates without consulting the minority, which means nominations by party primary, state legislative races becoming proxy elections, Senate candidates going on the stump, and all the other stuff we hoped to contain.
Suppress Deadlocks with Proper Conclaves
This brings us to an interesting suggestion:
CHRISTOPHER M. RUSSO: Let me assume, arguendo, that deadlocks are a problem that must be fixed. You discuss the merits of a conclave-like system, but you distrust individual state governments to enforce secrecy. Yet, Congress can regulate the election of senators (Art. I, Sec. 4). Congress could set forth regulations requiring a conclave-like system. Congress could also impose stiff penalties for states who fail to abide by the regulations, such as rejecting their senator-elects.
While Congress cannot regulate the place of choosing senators, I can imagine such regulation including safe harbor provision for states who conduct their conclaves in DC with federal oversight and assistance. E.g., Capitol Hill police stationed outside the conclave to prevent unauthorized access. The feds do a good job of keeping things secret when they want to!
This could work! I just think it would be difficult to enforce consistently throughout the nation. For electing the POTUS, I proposed a single conclave of 50 governors, once every 4 years. Using it for Senate elections, by contrast, would require holding 16 conclaves every 2 years. Each separate conclave would need to isolate around 40 state senators (for a total of around 650), not just from the world, but from one another’s conclaves. Each will need on-site living and dining facilities, fairly intense (and incorruptible) security (both to protect the members and to keep them from communicating with the outside world), and a meeting hall.
This is definitely doable, and, if it were done well, I think it would succeed at solving the deadlocks problem. Deadlocks seem unlikely in a world where state senators are effectively imprisoned until they reach an agreement. Even the most partisan diehards won’t be willing to leave a seat empty for two years if it means missing their lives back home. There’s a reason papal conclaves never last more than a week anymore, and part of that reason is much more rigorous isolation of the electors. If an Article V convention seemed receptive to Senatorial conclaves instead of my proposal, I’d happily support it, and it would be a great improvement on our current system.
However, going this route strikes me as one or two orders of magnitude harder than having a single conclave for president every four years. That makes me nervous, especially in light of the American people’s past reaction to deadlocks, and sent me looking for a method that could guarantee a decisive, timely result.
A Win’s A Win
Now we get into the comments where readers argued with specific sections of the proposal. Before we dive into the criticisms, though, I’ll note a win.
I argued that we should reduce the number of U.S. Senators from two per state to one per state. I provided some details on how to accomplish that transition. I wrote that this was “low-hanging fruit,” and that “we should do it even if nothing else in this article sticks.”
As far as I could tell, you all pretty much agreed. The only objection came from Daniel, in the course of his more fundamental argument for proportional representation (which requires more senators). Assuming we aren’t adopting proportional representation, then, it seems that a “make the Senate smaller” amendment, as a standalone, might be well-received, at least by De Civ readers!
Along the same lines, I did see your many notes that the proposal was “ingenious” and “well-thought” and “well worth the wait,” and I very much appreciated them. Obviously, an article about “responding to comments” is going to inevitably focus on the negative aspects of your comments, but you’re a lovely readership, kind even as you rake me over the coals, and I’m grateful for you.
Can’t Trust Them Judges
Section 7 of my proposal made the entire amendment subject to the jurisdiction of federal courts, which raised some eyebrows:
: Expect partisan courts. Was that ballot really secret?
Oh, for sure the courts will be partisan. Judges usually try not to be partisan political actors, but, of course, they can’t help it.
However, consider the alternatives! There seem to be three other bodies capable of adjudicating disputes over this amendment: the state senate itself (which is presumably the one doing the shenanigans that sent the case to court in the first place), the U.S. Senate (which, today, ignores the law in favor of partisan interests), and bad actors from the governor’s office (their names are Steve Simon).
Compared to those three options, the courts seem best.
On the other hand, our goal here is to make the U.S. Senate much less partisan. If we succeed at this, maybe the Senate would be the better venue for hearing disputes.
: Section 7 will be the first time the word “justiciable” appears in the Constitution. I don’t like the concept, and I don’t want to implicitly approve it by leaving the implication some things aren’t justiciable. And besides, this threatens Article 1 Section 5 Paragraph 1 where “each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” - so I’d rather just restate that clause with the desired changes. So, what do you imagine justiciability looking like here?
There’s no need to imply that some things aren’t justiciable, because some things definitely aren’t! The political question doctrine and its cousins exclude a large but ill-defined zone of the Constitution from judicial review. Some of this is good, like the fact that the courts cannot review the verdict of an impeachment trial. Some of this is bad, like the fact that, according to the Supreme Court, the courts cannot review at least some constitutional qualifications for high office. Wrangling over this doctrine consumes about the first third of every legal battle involving any legislature. I, for one, am fed up with it.
I thought that, for this amendment, it was safer to ensure access to judicial review. I wasn’t sure I had thought of all the ways it might be needed, so I thought it best to just lay down blanket permission, even (yes) at the expense of the “Elections, Returns, and Qualifications” clause, which would not apply to anything arising out of this amendment. As I proceed through the other comments, I’ll note a few places where justiciability might be a nice feature!
Simpler Election Methods?
Three years ago, in “Death to Gerrymanders”, I wrote, “You simply can’t write a five-page algorithm into a federal constitutional amendment.” Then, in July, I wrote an algorithm into a federal constitutional amendment: DW-NOMINATE. This was a mess, but it enabled the simplest method I could find that reliably elected senators close to their state’s median voter.
Several of you suggested that I could accomplish the same goals with much less awkward methods!
: Why not just start using Single Transferable Vote with a 2/3rds threshold, instead of going straight to complex algorithms that most people can’t check on their own?
Well, great minds must think alike, because this was the very first thing I tried.
Unfortunately, it is a mathematical property of single transferable vote that you can’t (meaningfully) apply a two-thirds threshold to it. If you try, the winner is always the same as the simple majority winner. After all, consider how STV works: you eliminate the least-popular candidate and recount the votes without ‘em, repeating the process until someone has enough first-choice votes to pass the victory threshold.
However, once someone has a simple majority of first-choice votes, they can’t be eliminated. There is no combination of rankings and ballots and head-to-head matchups that could ever cause them to be the “least popular candidate.” They will simply continue accumulating votes while other candidates are eliminated, until they inevitably reach two-thirds, even if it takes a hundred rounds and requires the last-choice votes of a third of the voters.
In a disciplined state legislature with tactical voting, the result is that the partisan candidate nominated by the majority caucus (probably at the behest of primary voters) will always defeat the candidate from the state’s ideological center. The method provides no protection against popular influence or partisanship. It reduces to a simple internal party caucus with unnecessary extra steps.
Every system I looked at had these problems. I spent, literally, entire days looking them over, not getting any writing done at all, trying to find one that could be adapted to fit the needs of a U.S. Senate election. Bucklin voting gave me hope for a while, but its cloning problem ended up ruling it out. (In a Bucklin vote, the side that nominates more candidates can engineer a win. It can generally use tactical voting to ensure that its preferred candidate wins, as well. This reduced to a simple internal majority-party caucus with extra steps.)
At least for now, there’s simply no alternative: if you want anyone other than the majority party’s ideological choice to be viable, and especially if you want some degree of compromise between different factions, you must eliminate the majority party’s preference prior to final voting. There is no known voting mechanism that can do this for you. If you don’t do this, then your Senate will fail the same way the Founders’ Senate did: political parties, mass primaries, extremist candidates, and state elections becoming proxies for federal ones.
My blunt-force method of doing that was to apply DW-NOMINATE, which makes the majority party’s preferred candidate ineligible (unless the majority party, anticipating this, chose a centrist, which is fine).
GILBERT: Note that the least controversial hated will usually not be a Condorcet winner, because a Condorcet winner still can have a fairly large minority who hates him. But electing the least hated member is actually fairly easy: Use your favorite method of proportional representation (which should be STV but here it doesn’t matter much) to elect an exclusion panel that has one less member than your state senate. The person not elected to the exclusion panel is your winner. In a two-party system, effectively the majority gets to exclude all of the minority, and the minority gets to exclude a lot of majority members in order of hate. If the majority is comfortably large, they also get to exclude some of their own.
When I read this comment for the first time, I got a sparkle in my eye. It was a sparkle I knew too well, from having already pinned my hopes on forty-seven other elegant-sounding solutions to the problem back in June (only to be disappointed each time), but that didn’t stop me from hoping. Gilbert’s idea makes sense! It’s beautiful! It’s simple! It’s so easy!
It doesn’t work.
Here’s how you kill it: the majority party selects a candidate (probably someone who won a popular primary election of some sort). The majority party then instructs its members to place that candidate last on their ballots. If all majority party members follow the instruction, they are guaranteed to win. If there are defections, they still win as long as they still have a majority of the body following the instruction. If they don’t have a large enough majority to spare the defectors, they probably still win anyway, unless the opposition has an equally coordinated campaign for an alternate that has managed to efficiently pick up all the defectors.
So this method reduces to a simple internal party caucus with extra steps. The center is, as usual, squeezed out.
I’m sorry. I loved this idea.7 I really wanted it to work. Even after it didn’t work, it gave me an idea that sent me to the lab for two three days with that same sparkle in my eye (greatly delaying the publication of this article!). Alas, at the moment, it’s looking like my idea might just reduce to Bucklin all over again.
ALEXANDER MACKAY: This might be a crude solution, but what if we simply make it so that, after a certain number of rounds of voting, if the legislature can’t agree on a candidate, they must all resign, and are ineligible from ever holding any political office ever again? That would almost certainly outweigh any pressure from party bosses.
The difficulty I see with this is that it allows an intransigent minority with nothing to destroy a majority at its whim. If this were the constitutional rule, and I were, say, the Georgia Democratic Party, I’d recruit a bunch of randos from in and around Atlanta to run for state senate. They would win, by and large, because the great majority of state senate seats are very safe seats, especially in these polarized times. Holding one-third of the Georgia Senate in my grasp, I would tell the GOP three-fifths majority, “Agree to elect Stacey Abrams. My senators will vote for no one else. If you refuse, we will destroy all your political careers.” What sane, ambitious local pol would ever agree to run for state senate under those conditions? You may ask, “Would any politician in the United States ever willingly take an action that would bar him from re-election?” Ask the 2023 GOP members of the Oregon House! (Now imagine if they could have taken the rest of the Oregon House down with them!)
Granted, that’s an extreme example. However, members in a persistent minority, who have no real hopes of ever moving to statewide office (because their state is the wrong color), have much less to lose than those in the majority. That’s always going to be a factor in negotiations. I do (desperately) want to give the minority party some leverage in these elections, where the original Constitution gave them none at all. However, I think this gives the minority rather too much leverage.
ANTHONY: If no nominee is elected within two calendar days, all nominees who received a majority of approval votes shall be listed in order of age. If the list is at least three nominees, the nominee with the median age is selected. If the are are an even number of nominees, the older (or younger?) of the two median nominees shall be selected. If fewer than three nominees received a majority of approval votes, the list shall be all members of the voting body who are eligible to serve in the Senate.
I have a deep and abiding fondness for election by sortition. Injecting an element of randomness into elections probably does not reduce candidate quality, but probably does reduce candidate ambition. Too, I’ve always agreed way down in my bones with the old Buckley aphorism: “I would rather be governed by the first 2,000 people in the telephone directory than by the Harvard University faculty,” which is basically what you’d expect from a lottery system. I have puzzled for a long time whether the solution to our Seventeenth Amendment problem might involve some added element of randomness.
However, this is not the way. The reason is the same as all the others: it allows a coordinated majority party to control the outcome with no tug from the minority. Here’s how:
Suppose you are the leader of the majority in the state senate. Your primary voters have instructed you to support a specific candidate, so you duly put him up for nomination. Your party gets him a majority (obviously) but can’t get him to two-thirds without support from the minority. No matter! You instruct your caucus to vote no on all other nominees brought forth by anyone, especially the minority party. A few are tempted to defect, but not enough. Two calendar days expire with no one reaching the two-thirds threshold, so we go to your method of choosing between candidates who secured a majority. There was only one. He wins.
Suppose somehow you do somehow find yourself with another person on the list of people who got a majority. Maybe there was a communications snafus, or maybe your party started out negotiating in good faith. Is your preferred nominee at risk? Not at all! All you have to do is find someone—anyone!—in the state who is older/younger than your favored nominee (as appropriate) and, before two calendar days expires, nominate him. You instruct a bare majority of your caucus to support him, assuring them that this is simply a strategic move to ensure the victory of the guy you all really want. They have every reason to believe you can deliver (because you can), so they do as you say. Your preferred candidate is now the median guy by age again. The minority party tries to counter with a nominee of their own to keep the randomness alive, but you block them.
Even if they could get a nominee through, there’s a rule of only one nominee per pair of senators, and there’s more senators in the majority than the minority, so you will always get the last word here.
So this method reduces to a simple internal party caucus with extra steps.
DANIEL PAREJA: I said this before in the context of electing Popes, but just elect Senators in the way Venice elected its doge [as of the year 1269]. Yes, many state legislatures are too small to use the full procedure, so instead specify the election of a representative assembly in a manner consistent with the method of election of the most populous branch of the state legislature and no smaller than it, and no smaller than, say, two hundred members.
I love this, too. The doge election method is fantastic. If you don’t know it, here is a summary:
The Great Council of Venice (300-400 people) meets to elect the doge.
Thirty members of the Council (“The Thirty”)8 were chosen by lot.
Nine of the Thirty (“The First Nine”) were chosen by lot.
The First Nine chose forty men by vote, requiring seven out of nine to agree to each candidate before electing them to the Forty.
Of the Forty, twelve were chosen by lot.
The Twelve elected twenty-five, requiring nine approvals out of twelve.
Of the Twenty-Five, nine were chosen by lot (“The Second Nine”).
The Second Nine elected forty-five men, requiring seven approvals of nine.
Of the Forty-Five, eleven were chosen by lot.
The Eleven elected forty-one men, requiring nine approvals of eleven.
The Forty-One, finally, elected the Doge… requiring twenty-five approvals of forty-one, just for one last supermajority requirement.
Wasn’t I just saying our election methods should include a little more randomness? This system appears to have worked rather well. It stood from 1268 until Venice fell to Napoleon in 1797, which is a hell of a lot longer than the electoral college worked!
However. This method existed in a republic with a very different electoral system feeding the Great Council and no strong political parties (as far as I know), which appears to have introduced so many layers to the process as a protection against bribery,9 which is not a huge concern in American elections today.10 Would it work here?
My (somewhat naive) guess is that, in any legislature that’s inclined to deadlock over a supermajority requirement, this procedure would usually deadlock just as badly… at every stage where it applies a supermajority requirement. Maybe not? Maybe certain subgroups of legislators are able to forge consensus where the full body wasn’t capable of doing that? However, it’s hard for me to imagine exactly how that would happen, and, if it did happen, it would be dictated by the luck of the draw in the reduction-by-lot rounds. To avoid deadlock, it would need to happen a lot.
The reduction-by-lot rounds already seem dangerous to me, because they run the risk of (randomly) handing one of our two political parties just enough seats on the Nines, the Twelve, or the Eleven to push through their nominees with no input from the majority. If that happened, the party that lucked into control would be able to dictate the rest of the process with trivial effort. After all, if there’s 7 Democrats on the Second Nine, then it doesn’t matter if the Republicans hold 65% of the chamber. The Democrats can appoint all Democrats to the Forty-Five, so the Eleven is all Democrats, who then easily agree on the Forty-One, who then elect whatever radical they want with no possibility of opposition from the Republicans.
If that happens, the method reduces to a simple internal party caucus with extra steps (but with the minority caucus randomly winning sometimes). If it doesn’t happen, it seems to me what it’s most likely to do is turn a single deadlock into an extended series of deadlocks.
KRENN: [O]ne of the easier filters would just be to ban people who have experience with first-past-the-post elections from being senators.
…If the problem is that Senators have too many of the vices and virtues caused by running for popular democratic elections, then step one is to ensure that success at running in a popular democratic election can’t ever contribute to becoming a senator.
Likewise, if the problem is that Senators weren’t independent enough and were becoming party creatures... limiting their opportunity to get used to being party creatures by holding other offices controlled by party-run elections is also potentially helpful.
…And while we’re at at it:
Rule 2: No person who has served in the Federal Judiciary may ever again run for, or hold office in, or otherwise be employed by, any part of the federal executive or legislative branches. But prior service in those branches is not disqualifying from being a member of the federal judiciary.
…Rule 2 is about preventing conflicts of interest. Post-civil war, I believe there was a Supreme Court chief justice who made same really strange rulings, because he thought it would best position him for a future presidential run. And senators make strange votes or take strange positions all the time because they think it will better position them for runs as presidents, or to be a senior cabinet member for the next president from their party. I would prefer to remove that temptation by simply stating that once you’re a senator, you can’t ever go back to being a member of the executive branch.
Krenn’s comment goes on to explain in some detail how, exactly, one would accomplish this.
I understand the impulse, but I don’t think this would play out the way one would hope. Political parties routinely identify and run non-politician candidates for high office, from the Traditional Buckets of Populism:11
Businessman who argues his experience in real-world business competition means he’ll do better than a career politician at the job of… legislating (Bernie Moreno, Eric Hovde, Donald Trump, Kelly Loeffler)
Retired soldier who points to his honorable service record and obvious patriotism, as if these are sufficient qualifications to be the expert legislator a U.S. Senator needs to be (Mikie Sherrill when she ran for House, Tammy Duckworth when she ran for House, J.D. Vance, Tim Sheehey)
Folksy retired soldier who can posture as an independent (Dan Osborn, Graham Platner)
Celebrities (Dr. Oz, Arnold Schwarzenegger, Mark Kelly, Donald Trump again, Jesse Ventura)
These groups of people pretty consistently turn out to be, not just demagogues, but the worst demagogues of all. Having absolutely no idea what is involved in running a government, they make wild promises on the trail and (often) turn into the worst kinds of attention-seeking fundraising grift-trains once they make it into office.
They are also brought forward by their political parties because political parties have no shortage of people of this sort. Political parties are huge, jam-packed with activists who have spent many years in service. Some of them have stellar records and the low talents of the campaign stump. A few end up in the Senate.
Again, I understand the impulse, but I don’t think this would play out in a way that advances our objectives.
Now, it’s perfectly possible that it would advance other objectives! I am intrigued by the idea of making some high offices automatically fatal to a political career as a means of countering conflicts of interest. That might be a separate proposal worth considering. However, I think that’s beyond the scope of today’s article, which is strictly about fixing the U.S. Senate.
Goodharting DW-NOMINATE
We used to have Campbell’s Law, the law of teaching to the test: “The more any quantitative social indicator is used for social decision-making, the more subject it will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is intended to monitor.”
Then the Internet discovered Goodhart’s Law: “When a measure becomes a target, it ceases to be a good measure.”
And, like, dang, that is a much better way of putting it.
I put DW-NOMINATE at the heart of the rarely-used “fallback election” in my proposal because I think it is fairly robust against “Goodharting” (that is, the exploitation of a politically inert or neutral system the moment it becomes politically advantageous). Many of you disagreed!
Quite a lot, actually!
GILBERT: The amendment has a hard-coded assumption that recorded votes by name and roll-call votes are the same thing. I don’t know if this is currently true as a matter of American ritual but it is certainly gameable. Just hold votes likely to produce the desired statistics by roll-call and others by electronic device, signed ballot, division, or whatever.
In American parliamentary law, any vote where the yeas and nays of each member are recorded is a roll call vote. Every electronic device used for recording votes is universally known as an “electronic roll call system.” Signed ballots are so rare that Mason’s Manual 2010 doesn’t even mention them, instead assuming that ballots are, by definition, secret. A recent edition of Robert’s mentions them, but treats them as functionally equivalent to a roll call. You could change the names of these things, maybe rename your electronic voting system to “electronic voting system that is used instead of a roll call, which is a very different thing,” but this would not change the original public meaning of the amendment as-proposed, and therefore would not get around the amendment.
However, it is possible to conceive of legislatures trying to use wordplay to avoid the clear dictate of the amendment. This may call for slightly more refined language, but, more to the point, this is one place where it would be useful to have judicial oversight over any majority parties tempted to vandalize centuries of parliamentary law in order to win.
MASTRICHT: DW-Nominate can be rigged. At the end of a session, just spend many votes on utterly trivial matters. Have the one faction vote but in lockstep, but without informing the other side how they will vote. Have the desired nominee vote to the contrary. If any partisans of one’s own side are defecting, one can probe by telling them the opposite, and cut them out—one only needs the buy-in of a majority to keep forcing votes. The body of votes added by this process will, on average, make the desired candidate seem more opposed to the majority party than *any* member of the opposition.
This is all well and good until you remember that, first, roll call votes are typically taken by electronic roll call system, so everyone can see who’s voting and how—and change their votes accordingly. Second, roll call votes taken “manually” proceed in alphabetical order, revealing the votes of one faction to the other during the vote—and, before the result is announced, a member can generally change his vote. As Robert’s Rules puts it:
Changing One’s Vote. Except when the vote has been taken by ballot (or some other method that provides secrecy), a member has a right to change his vote up to the time the result is announced but afterward can make the change only by the unanimous consent of the assembly requested and granted, without debate, immediately following the chair’s announcement of the result of the vote.12
So you could certainly call a roll call vote on a trivial matter, but the minority party will get to decide whether or not to allow you to manipulate DW-NOMINATE scores with the outcome.
It is possible to imagine state senate majorities cramming contrary rules down the throats of their minority parties so that majority-party voters have inherent advantages over minority-party voters, but this would no longer be a roll call vote in the parliamentary sense. (This is not the first time anyone has ever tried to exploit voting procedures! Parliamentary law is pretty robust on this stuff!) Again, a good place for courts to have some oversight, so that centuries of parliamentary law, rather than the vandalizing majority, can get the last word.
Related:
KRENN: The party in control of the house decrees that there will be three votes a day, on whether to break for breakfast, lunch, and dinner. 40% of the controlling party is ordered to either abstain or vote against the break. Bam, the ‘designated moderates’, who aren’t really moderates, just increased their moderation score by voting with the opposition three times a day every session. If the opposition catches on, and starts to vote against breaks, then you simply order the sergeant-at-arms to chain them to their desks and not give them any food until they vote in favor of breaking for food, so the ‘moderate’ can vote with them.
If majority parties had the power to arbitrarily chain legislators to their desks—legislators from one party, no less!—until they voted a certain specific way, don’t you think they would have used it before 2025? The Nazis and the Italian Fascists did this sort of thing on occasional key votes, but it was a harbinger of the imminent end of democracy.
Again, though, it would be good for this to be justiciable, so legislators could be assured of courts vindicating them if the majority tries to chain them to their desks, rather than there being any risk of it being treated as “a political question.”
GILBERT: I don’t know how easy it is for isolated members to force votes in the various legislatures, but if it isn’t hard it probably can be made so. If roll-calls just happen very rarely, new members can be kept disqualified for a long time.
It is generally very easy, and very hard to make hard. As Mason’s Manual explains:
Sec. 536. Voting by Ballot. #1: Voting by ballot is rarely, if ever, used in legislative bodies, because the members vote in a representative capacity and their constituents are entitled to know how their representatives vote. In order to ensure that right, constitutions usually require that all bills be passed by roll call and that the vote be recorded in the journal, and also that a small number can require a roll call on any question and have the vote recorded in the journal.
If you can get the voters to sign off on a change to the state constitution, though, there could be a problem. Unfortunately, that’s somewhat plausible in a world where California Proposition 50 just passed (as gerrymander retaliation), but still strikes me, at least, as unlikely to win majority support.
KRENN: There are also many shenanigans available by, say, controlling who gets to close the vote, when. Maybe minority-party legislators have to cast their vote and stick with it, but majority-party legislators can switch their votes en masse at the last second, and then the vote-counter closes the vote right afterwards.
Generally speaking, voting continues until all members have cast votes, or until a majority votes to close voting… but votes can still be changed. I really don’t think you could get away with having significantly different voting rights for minority and majority members. Past a certain point, that becomes not just a parliamentary rules issue but a federal issue under the “republican form of government” clause. I think that point arrives pretty quick, which is why there’s so little precedent for it in American political history, even before/during/after the Civil War.
That being said, parliamentary bodies do cheat on vote closures at times. I’ve seen them do it. They get away with it under current law largely because it makes only a procedural difference, not a substantive one. Another place where it would be good to be able to have a court say, “Now hang on, I’ve read your rulebook, and what you just did isn’t in it.”
GILBERT: In the edge-case of perfect party-discipline DW-NOMINATE will collapse the spectrum to two points and the ranking will become undefined. With not-quite-but-near perfect party discipline it will be much easier to game or near random.
Collapse requires not just perfect party unanimity, but perfect party attendance. No deaths, no resignations, no vacation days, no excused absences, no car breakdowns. It also requires cooperation from the minority party. Good luck with it!
If you could pull it off, though, the median legislator would not be undefined. You’d still line up all their DW-NOMINATE scores on a line and find the value of the one in the middle. It would be the DW-NOMINATE score of the majority party. Under my proposal, you would then nominate the entire majority and have a ranked-choice ballot among them. This stupid failure state would allow the majority to elect whoever it wanted from among them, but again, it requires minority cooperation, so I’m not worried about it.
GILBERT: If the presiding officer of the state senate doesn’t like the expected section 2 winner, he can force section 3 by not waiting for nominations and just recessing the section 2 session immediately after opening it.
This isn’t about DW-NOMINATE, but, since it’s of a piece with several other concerns, I’ll mention it here:
The presiding officer of a body is not generally empowered to adjourn or recess the body by himself. The motion to recess is a privileged motion, passed on a second and a majority vote (usually a voice vote or unanimous consent, since motions to recess are rarely controversial). If he tries to (falsely) rule that there are “no further nominations” in order to hasten Section Three, that’s a ruling of the presiding officer, which is appealable to the body. (Again, I speak in generalities, since I can’t speak to the specifics of the rules in every state.)
Now, if the entire majority wants to terminate Section Two to hasten a Section Three election by voting a recess, I suppose that’s fine, but it’s not obvious why they would want to. It is impossible for anyone to win in Section Two without the agreement of a majority of the body anyway (indeed, a super-majority), so, in general, the majority has nothing to worry about by letting Section Two play out. Moreover, moving from a Section Two election to Section Three election has high costs. It tightly restricts the nominees to a small set, and greatly raises the probability that someone will be elected without the support of a majority of the majority. Strategically, it is better to play out Section Two and hope for a win there before the system forces you into the unpleasant and unpredictable Section Three.
Indeed, the threat of Section Three is a big part of what I think would make this system work! Section Three is unpleasant and railroaded! Parties and members will want to avoid it… and that’s what will get them to the negotiating table to compromise.
DANIEL: Next: If you want to make your specification of DW-NOMINATE more proof against chicanery, you can say something like “as defined on such-and-such date”. (More on this later in this comment.)
This is a good idea. I might even add, “in such-and-such source document.” I hesitated, because it’s more words in a wordy proposal, but, hey, in for a penny…
GILBERT: Even if you ban [roll-call order manipulation], it is still easy for both parties to make a pact to statistically demoderate their respective moderates.
Hey, if you can somehow convince the minority party to allow you to manipulate DW-NOMINATE to ensure your preferred nominee becomes the next senator from your state… and the minority party agrees, and its members go along with it… then haven’t you just achieved exactly the cross-party consensus we were trying to force you to elect all along? Either you just elected a centrist, or you gave the minority party commensurate concessions to elect an ideologue.
I’m fine with this. Cross-party pact away.
(I do not expect this to actually work, except in legislatures where a two-thirds consensus candidate is already achievable.)
Unwilling Senators
EVAN TRIANGLE: In your proposal, if nobody gets chosen by Section 2 consensus, Section 3 says the Senator must be one of several specific members of the nominating state legislature. I’m dubious about what this will do to the legislature. Worse, I can easily imagine a specific legislator who’s somehow unable to move to DC (whether due to medical issues, family issues, or any number of other things) who messes up the political calculus of balloting. Perhaps the legislators in question could have the option of nominating someone else (by secret ballot so it’s unknown who’s nominating them), rather than themselves be automatically nominated? Or, simpler, decline the nomination and have the next-closest-scoring legislator be drafted?
KRENN: What if none of the ‘moderate’ ‘state senators’ actually WANT to be federal senators? Moving their family to DC sounds like a lot of work. Maybe they would prefer to just stay home. Or maybe they were bribed to say that.
There is an ancient American tradition, which goes like this:
You’re not supposed to want to be elected. It’s supposed to be a heavy burden that is laid upon you reluctantly, which you decline over and over again, but finally, when your fellows show just how much they need you, then, at last, you make your decision. Will you bear this burden for the country? If so, you accept. If no, you decline and the convention is back to square one. Now, we’ve become so used to the degenerate mores of a declining democracy that it seems somehow wrong to elect someone who has the good sense not to want the job! If such politicians still exist, that’s exactly whom I’d hope to elect!
Of course, it is possible that someone might refuse election.
In my proposal, the resolution mechanism is straightforward but costly. Having been elected, the senate vacancy is filled. The new U.S. Senator can now resign his seat, creating a new vacancy. The entire process begins again, going all the way back to Section Two.
I don’t think it would be wise to allow nominated median senators to nominate substitutes, as Evan suggests, since this would naturally create great pressure on them to nominate (who else?) the party’s preferred pick. The secret nomination Evan suggests would not help alleviate the pressure, since, if the party’s preferred pick were not nominated, party bosses would know that their entire slate of nominees is to blame. The option to decline the nomination would simply focus incredible pressure on each majority-party senator to decline until the party’s choice was selected.
However, it’s a fair point that a senator may, sometimes, have burdens he truly can’t set aside to serve in Washington for a few years, and that his fellow senators may elect him anyway. In that case, it seems to me that it would be fine for him, after his election, to refuse the office, and then have it pass to the second-place winner instead (and so on), rather than restarting the entire process from square one. I think it worthwhile to revise the proposal to include something along these lines.
However, if everyone on the nominees list refuses? That’s probably three or four people. (It’s at least two.) If three consecutive politicians elected to the U.S. Senate refuse to serve as U.S. Senators, then you probably do have some kind of bribery problem. The last thing you can do at that point is give the bribers what they want (other nomination options). You’ve got to restart the process at Section Two. Sorry, deadlocks are terrible, but if your state deliberately deadlocks itself like this, intentionally overcoming all the safeguards through corruption and whatnot, then, I’m sorry, you earned it. Figure it out.
Sneaky State Senate Shenanigans
My proposal consigned U.S. Senate elections to the state senates, not the legislatures as a whole. There were a number of reasons for this. One of them was because it helped prevent all the parliamentary shenanigans y’all just tried out! State senates have pretty well-developed rules of order and precedents. Joint legislative sessions, as a general rule, do not.
However, because Nebraska has a unicameral legislature, I didn’t say, “…chosen by the state senate.” I said, “…chosen by the least numerous branch of the legislature thereof.” This gave you guys some Ideas!
CHRISTOPHER M. RUSSO: A highly-partisan state could pass a constitutional amendment creating a third legislative chamber with two members, each elected every six years by popular vote in a statewide election. This third chamber serves no legislative function. It is merely a proxy election for the state’s U.S. Senator.
GILBERT: I don’t think the states are required to make consent of all branches of the legislature necessary for legislation. Certainly various kinds of overridable upper-house vetos are common internationally. So a state constitution could just make the governor into a single-member and therefore least numerous branch of the legislature with the same veto power he now has outside of it. Or even have a “house of the senate majority leader”.
MASTRICHT: So, the relevant body is whatever branch of the legislature has the least members. We can easily convert this back into a statewide senatorial scheme by erecting a new chamber with a single representative. This would allow, effectively, for popular election (but done 2+ years in advance), or, I suppose one could have rig a scheme where, while nominally popular, in practice this chamber will usually filled by appointments from the governor.
Some of this makes me go, “Man, this is why we need the courts to be able to justice this thing.”
I don’t think the executive branch can lawfully be construed as part of the legislative branch, especially if it doesn’t do anything. I don’t think an inert chamber with no legislative function lawfully qualifies as a branch of the legislature. A court could just say so.13
After all, we already have a similar clause in the Constitution:
…Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
To my knowledge, nobody has even tried making a gigantic third state “legislative” house with no powers and restricted suffrage qualifications simply to game this requirement. Could they? I like to think not!
However, I could be wrong. The text itself doesn’t explicitly prohibit it, and maybe the only reason people spent centuries not doing this is because there was no partisan advantage in doing so.
Moreover, Gilbert suggested adding a third house of the legislature with some legislative powers. These would be very weak powers, along the lines of the House of Lords… but it would be enough to qualify the chamber as a legislature. That would suffice for the third house to perform its true purpose: handing control over the U.S. Senate election to a single political party. This is best avoided.
I hesitate to be too prescriptive about the structure of state legislative houses in a constitutional amendment proposal, but I think you guys are right that the amendment ought to define a branch of the legislature as an elected chamber with at least ten members whose consent is necessary to the passage of any law. Does that sound reasonable? It certainly seems rather harder to game.
A sidebar on language.
CHRISTOPHER M. RUSSO: (Nitpick: In Section 1, I would write “least numerous chamber” not “least numerous branch.”)
Me, too, but the Constitution says “branch.”
When the Founders used it in Article I, Section 2, I said to myself, “Okay, that’s just Founding-era obsolete vocabulary.” Alas, then they did it again in 1912 with the Seventeenth Amendment, which also uses the “most numerous branch” construction.
I still agree that “chamber” is better, and we should use it if we’re writing non-constitutional text, but, if the Constitution has used the same construction twice, I’m going to stick with it, for fear that changing that one word will have some horrible legal consequence I haven’t thought of.
Some Nitty and Some Gritty on the Voting
My proposal says that, if there are no eligible nominees in the state senate, then the election is suspended and the state can’t have a U.S. Senator until it finds some.
EVAN TRIANGLE: I don’t like suspending the Senatorial election when no eligible candidates present themselves under Section 3. I can see how it might be good to completely prevent party bosses from manipulating things thusly - but I think it’d be impractical for them to make all longserving state legislators resign! So I’d replace that with something like the three legislators nearest to qualifying.
The reason I took this (admittedly brutal) approach was because I couldn’t imagine a circumstance where there would be no eligible candidates except if party bosses had (somehow) manipulated all long-serving state senators out of the body. Having done so, they deserve to be punished with a lack of representation until they fix it.
After all, when in American history has there been a state senate without one single thirty-year old citizen who has served at least two years in the body?14
(…That’s not a rhetorical question. I feel like you, Evan Triangle, might actually know this.)
If I’ve overlooked some reasonably plausible scenario where a state senate might have no qualified nominees for legitimate reasons, I’ll recant. For now, though, I’m inclined to keep the restriction in, because the only situations where it becomes a problem seem to be situations where it ought to become a problem.
MASTRICHT: As to a voting system, definitionally, a majority will always be able to push through a Condorcet winner. If you want to force moderation, you do not want an electoral system that always elects Condorcet winners. As is, this drops the threshold for guaranteed partisan victory from 2/3 to a 50.01% bloc.
Once the state senate has deadlocked, and you have decided (as I did) that it must immediately resolve the deadlock, you have to pick a voting system that guarantees deadlock resolution, which leaves you with, basically, two choices:
First-past-the-post, which allows someone to win with as little as, say, 39% of the vote, or
Some majority-winner system like Condorcet, which at least requires someone to win 50%+.
Of course, Mastricht is absolutely correct that a Condorcet system cannot give the minority even the slightest bit of leverage. There just isn’t a viable voting system for a small, well-coordinated, highly tactical electorate that requires a two-thirds support threshold. It’s majority rule or plurality rule or deadlock.
That is why DW-NOMINATE is in the proposal to filter nominees. Given these constraints, restricting the list of nominees is vastly more important than the details of the final voting. DW-NOMINATE ensures that all the final candidates are (relatively) moderate.
I frankly assume that, in most cases, the majority party will then identify the most conservative / most progressive nominee and then vote en masse for him, guaranteeing a first-round Condorcet victory. But they’ll still be irritated, because the “most conservative / most progressive” nominee isn’t very conservative/progressive at all, since the nominees were all forced to be the most moderate members of the chamber.
That’s the best idea I had without accepting deadlock.
Section 4: Special Fast-Track Process to Amend this Amendment
: 1) I would add a topic or substantial similarity limitation in section 4, just in case
GILBERT: There is no topical limitation on section 3, so section 4 is effectively an unlimited power to amend the constitution.
Oops!
Yes, this was an oversight.
To say the least.
EVAN TRIANGLE: I absolutely do not want the House to be able to immediately change the Senatorial election method. At least, follow the Parliament Act of 1911 and make the House pass the same proposal twice over two years (which in our case will mean a general election intervenes).
Perhaps I should never have gone down this road of allowing a special amendment process in the first place. I did it, of course, because this thing is very complex (too complex) and I didn’t think it could be bulletproofed until it had been tried out. This betrays my lack of confidence that my proposal would really work right out of the gate.
Assuming arguendo that there ought to be a fast-track amendment process, I think it has to be the House that is given this power. It can’t be the Senate! It’s bad enough that the current House and Senate, fearing for their own power, refuse to propose gerrymandering amendments or expand-the-house amendments or anything else that might structurally reform them. We can hardly give control over the Senate election process to the Senate. Moreover, seventy-five percent of the House is a huge threshold, so this power couldn’t be invoked casually.
All that said, I’m fine with the suggestion of forcing them to pass it twice, with an election intervening. Forget the Parliament Act 1911; Nevada already does this with amendments to their state constitution, so it’s thoroughly American and strikes me as quite sensible.
Section 5: Voiding Pledges, Vows, and Oaths
GILBERT: As far as I understand it, unconstitutional and federally preempted laws in the US are unenforceable but stay on the books (and maybe become enforceable later if the higher law changes). Section 5 would create a unique exception by potentially making a provision of a state constitution not just unenforceable but actually void. In German legal terms, you have reinvented Geltungsvorrang (validity precedence) while previously American law only [k]new Anwendungsvorrang (application precedence).
I answer in two ways.
At a practical level:
Naturally, once an amendment like this picks up momentum, these provisions tend to work their way out state constitutions anyway. Indeed, this has already largely happened, because pretty much all state-law provisions binding or “instructing” legislators to elect certain U.S. Senators vanished either just after the Seventeenth Amendment was ratified, or in the century since. As far as I know, then, this difficulty is purely theoretical as applied to the Senate.
(Note, however, that there is an identical section in De Civitate’s proposed presidential election amendment. That very much does stomp all over a bunch of existing state laws binding the electoral college, so it’s still worth considering this at a higher level.)
At a theoretical level:
We proposed an amendment banning slavery while several state constitutions still explicitly protected it.15 The suffrage amendments (extending the right to vote to women and The Youth) did not, I suppose, directly contradict state clauses defining electors as being older than twenty-one, but they certainly created, shall we say, some constitutional tension! Texas had a provision in its constitution after 1879 regulating alcohol and expressly requiring that prohibition be decided by local elections, not by any higher authority. The Prohibition amendment obviously stomped on that.
It worked out, so I’m sure this will, too.16
MASTRICHT: After the fact punishments seem entirely permissible by parties here. What is to stop them from allocating funding for reelection as they wish? Of course, the ballots being secret makes this harder to do.
Your last sentence hits the nail on the head.
Section Five, on its own, doesn’t break the power of the parties. Not even close. There are endless informal and indirect mechanisms that the parties can use to pressure, reward, and (if necessary) retaliate against rebels. Section Five does only two things:
It breaks all their mechanisms of formal control, plus all future mechanisms of formal control they might try to develop under the new rules.
No less important, it declares even informal mechanisms of control to be morally illegitimate. This can only be a norm, because there is no mechanism for enforcing it as a law, but norms are important. They shape how people understand the Constitution, and what forms of manipulation are and are not kosher.
However, the actual defenses against informal party mechanisms of control lie elsewhere. The secret ballot is the first and most important. The requirement that every ballot rank every candidate is another. The two-thirds requirement in Section Two gives cover to party members who are already open to moderation and compromise but don’t have an excuse to do it. Finally, the harsh nomination restrictions in Section Three force lawmakers to choose between a handful of disfavored candidates neither party would ever select as a first choice. All of this makes it orders of magnitude harder for a party to identify rebels, or to reliably tell the difference between ideological dissent and smart tactics. Those incentives are much more important than Section 5.
Section 5 is still a good (and probably necessary) component, but it’s not doing nearly as much work as it appears on first reading.
: Why not just make it illegal for party organizations to endorse Senatorial candidates? You could even have a broad, vague legal understanding of what exactly is a ‘party organization’ established through caselaw, to disincentivize attempting to work around the prohibition. Something like, “Any private organization that runs, nominates, or endorses candidate for election to public office may not endorse, nominate or otherwise select a candidate for any election to the United States Senate”. …By making it difficult for external organizations to express a universal preference, you make it easier for state senators to make their own decisions without having to fear directly defying powerful outside forces.
This is a much more straightforward approach. If it could be carried out successfully, it wouldn’t eliminate many of the epicycles from this proposal. I’m not surprised it came to your mind, because it was also the first thing that came to mind when I considered the problem.
However, it has serious drawbacks.
First, it repeals some core parts of the First Amendment. The primary purpose of political parties (guaranteed by the freedom of association) is to endorse and support candidates (guaranteed by the freedom of speech). Nor is this some ancillary thing, like banning middle schoolers from saying “six-seven” in public schools. This is what the Supreme Court calls “core political speech,” the very speech that the First Amendment was designed to protect. Of course, we are writing a constitutional amendment here! We are allowed to repeal the First Amendment! However, I think that’s a very dangerous hole to poke in one of our most important dams. I think doing so would be wildly unpopular. I also think it would be polarizing along partisan lines, because limiting the First Amendment (especially with respect to political parties and campaign finance) is a major Democratic issue, and resisting those restrictions has become a core Republican issue. Once an amendment proposal picks up a partisan valence, it’s dead.
Second, even setting all that aside, I don’t think this approach is enforceable. Parties will always find ways of communicating, “vote for that guy” to their supporters, even if they never come right out and say it. Again, that’s their whole purpose! What this change would do is hand the party currently in control of the White House an immense cudgel for the most brutal lawfare this country has ever seen. Under either the Democrats or the Republicans, the Department of Justice would use this provision to ruthlessly persecute even a whisper of approbation for a candidate by the opposite party, while allowing their own party to openly hold primaries.
As much as I would like to simply and straightforwardly prevent political parties from collectively endorsing U.S. Senate candidates, there are some things that the law cannot accomplish, no matter how much is sacrificed along the way. This seems to be one of them.
Merem rejoins:
This isn’t that major a new step in American law, either: we already do this in the tax code, where certain non-profits are banned from endorsing candidates. That would give you an existing body of law to build on.
These restrictions don’t really work. Non-profits are all still allowed to do “issue advocacy,” and to factually state where particular candidates stand on those issues. They are able to effectively get around the Johnson Amendment pretty much trivially with this, and there’s very little the government can do about that without threatening the First Amendment.17 We all know which candidates are endorsed by the Protestant megachurch up the street, festooned in American flags like a knothead temple. We all know which candidates are endorsed by the Black Evangelical church down the road where the Democratic candidates are all welcomed like heroes (but some are more heroes than others). We all know which candidates the local university is hoping to aid with its get-out-the-vote drives.
One of the things that keeps the Johnson Amendment from turning into a political weapon or suppressing core political speech is that the Johnson Amendment is so easily circumvented. A real, robust attempt to suppress core political speech by core political speakers would, I think, likely backfire.
Quibbles & Corrections
MASTRICHT: Kyrsten* Sinema
Oops. Corrected.
Even in this age of ridiculous spellings of “Kristin” (to say nothing of “Caitlin”), my mind simply could not accept that she put her “y” there, of all places.
: I have a minor quibble to make about the phrasing of Section 3: “Each member qualified for the U.S. Senate who has served in the body for at least two full years (even if non-contiguous) and who has cast at least one hundred roll-call votes shall be eligible for nomination.” -- I would argue that the plainest reading of this would indicate that we are looking for people who were already in the US Senate, unless I am failing legalese...
That’s fair. The antecedent is ambiguous. I’ll have to take it to the workshop. (Chuck offers a suggestion, “State body,” but I think the whole sentence should probably be laid out differently.)
CHUCK C: Also, after writing that, I am curious if you are restricting this to current members of the State’s body?
My intention is to include only current members, yes. I think the text does that, but maybe it needs clearing up.
MASTRICHT: While we’re here, I’ll note that I did check whether any states had equally sized senate/house, as that would cause problems. There are not, currently.
Substack does gifs now, right?
I mean, lucky escape for me, but Mastricht is right, and Jeff Winger’s face is pretty much the one I made when I read it. That’s a problem the text will need to account for in some way.
If there’s a tie for the largest state legislative chamber, I’m inclined to just require random selection at each U.S. Senate vacancy. Simple, no obvious partisan advantage, and it’s only moderately weird that the two bodies could switch off choosing senators.
EVAN TRIANGLE: As a nitpick, Section 3 doesn’t mention the redistribution of votes after a nominee is eliminated.
Does this need to be mentioned? I think of “redistributing votes” as a convenient way of explaining how ranked-choice methods work to people who don’t know about them, not something ranked-choice methods actually do. If a candidate is eliminated, you just recount all the ballots, skipping that candidate. Votes don’t actually move around.18 Another equally cromulent way of describing it would be “erasing” the eliminated candidate from every ballot and recounting, but, of course, nobody actually pulls out a giant eraser and rubs the name off. The ballot remains the ballot and the votes remain distributed exactly the way they were cast. Eliminated candidates are simply omitted during counting.
Am I weird for thinking this way? Does text need to spell out elimination and redistribution?
Populism Adapts
I close with this summative comment from Daniel Pareja.
DANIEL PAREJA: I think a common theme of some of the other comments made is this: this amendment assumes that political actors will continue to abide by the current conventions, but the optimal partisan political outcomes are achieved by changing the conventions, and thus the conventions will change. The only way to avoid this is for voters to be willing, en masse, to punish politicians who try to game the system, which is dubious on multiple grounds.
This is, in effect, the same problem faced by the people who want to use the current electoral system for President to bootstrap a nationwide popular vote via an interstate compact: political actors who dislike that can simply start playing by different rules. (For instance, state legislatures might remember that they can just directly appoint electors for President, and not bother to have any sort of statewide vote on the matter.)
I hope I have now shown that I really did put some thought into the question of how partisans will react to the new rules, and I tried hard to write adaptations for those adaptations into the rules. It is true, of course, that, like water seeking its level, partisans will always seek an edge, and it is also true that the only impenetrable backstop against them is a virtuous, free people. In the end, it always comes back to John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
However, I think that, just as a virtuous people reinforces and defends the structures of government against the vandals, so, too, does a well-structured government reinforce and defend the virtues of the People. If ever the People are called upon to punish politicians en masse for structural violations, then the structures have already failed and are in need of reform. Yes, the responsibility to punish offending politicians belongs to the People, but, if existing electoral structures create incentives for the politicians to violate them, the People are going to be asked to do this over and over again. That isn’t sustainable. The structures themselves need to hold the politicians in check.
This is why (for example) it is a good thing that the King of England still holds a royal veto (at least in theory). Though he may never use it, and could not do so without doing immense political damage to his nation’s political order, the very threat of it keeps Parliament from going too far.
I don’t think the American system is working very well at the moment. At a large scale, I mean, just look at the last presidential election, Cackles versus The Thug.19 At a small scale, the Senate was designed to serve as one of the containment structures I’m talking about. Forget the cooling saucer; I keep going back to that image of boron control rods in a nuclear reactor. But it isn’t. The Senate is broken. Acknowledging that parties will always adapt, we should still fix the Senate, and try to give parties incentives that line up with what the Senate is intended to be… or fence them out when we can’t.
We may get it wrong, or, after a few decades, the parties may find new adaptations. Then we try again. That’s why our Constitution has an amendments process. It’s worth doing this, not just out of some OCD desire to make the Senate work “correctly,” but for the health of our elections and the salus populi.
What Now?
Speaking of trying again…
Although I have just spent rather a lot of words explaining and defending it, my proposed Senate amendment remains DoA. I am going to have to give it another shot.
Some Constitutional Amendments has now spent five months on the Senate. If you have read all three parts in full, then I congratulate you: those three articles contained more words than The Lion, The Witch, and the Wardrobe.20
However, I think the Senate is worth it. It is one of the crown jewels of our Constitution, and it has become a sewer. I can’t walk away from it. There’s got to be a way to allow legislators to pick their Senator, insulated from popular and political pressures, to give all factions some voice and some stake in the selection, to help the Senate become deliberative again, and to do it all without bringing back deadlocks… or the crushing complexity of an algorithm-based contingent election, which alienated so many of you.
Your comments were invaluable, even when I didn’t agree with them. You have given me lots to think about. I see options for the Senate now that I didn’t see in July. No doubt, your further comments on this article (if I didn’t completely wear you out by its length!) will shed further light on the problem. I’ll try and deal with everything in my next—and hopefully final—post on the Senate.
Once more unto the breach, my friends.
This is a more serious problem with the current Senate than I highlighted in previous articles. Take impeachment trials.
It has now been proven beyond all reasonable doubt that, even if the President were caught in bed with a dead girl, even if the President started a nuclear war with Togo, the hyperpartisan U.S. Senate will never, ever, ever achieve the two-thirds majority necessary to convict him in an impeachment trial.
A less ideologically polarized Senate would be capable of this, but not prone to doing it lightly. That, in turn, would restore an important constitutional check on the presidency and on the judiciary. Today, polarization means that check is all but extinct.
AMENDMENT XXXIII
Section One
The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
The Senate of the United States shall be composed of one Senator from each State, chosen by the least numerous branch of the state legislature thereof.
Section Two
Within thirty calendar days of an imminent or actual vacancy in the state’s Senate seat, the electoral house shall convene to elect a replacement. Upon a motion and a second nominating an eligible candidate, the body shall immediately vote by secret ballot whether to elect that candidate or not. If two-thirds of members present concur, the nominee is elected. If not, the nominee may not be re-nominated for this vacancy under this section, and the mover and seconder may not move or second another motion for this vacancy under this section. If there are no further nominations, or if no U.S. Senator is elected in this way within two calendar days, the body shall proceed to election under Section Three.
Section Three
Each member qualified for the U.S. Senate who has served in the body for at least two full years (even if non-contiguous) and who has cast at least one hundred roll-call votes shall be eligible for nomination.
Each eligible member shall be scored by linear, eight-iteration Dynamic Weighted Nominal Three-Step Estimation (DW-NOMINATE) in the first dimension, taking the member’s average score across every legislative term in which the member has served.
The median eligible legislator or legislators shall be nominated. If they do not amount to ten percent of the eligible members of the body, then the eligible legislator or legislators who have the closest score above the median, plus the legislator or legislators who have the closest score below the median, shall be nominated. If all these combined do not amount to ten percent of the eligible members, this procedure shall be repeated until ten percent of eligible members have been nominated.
The body shall immediately vote by secret, ranked ballot. Any ballot that does not rank all nominees shall be invalid. If one nominee defeats all others head-to-head, that nominee shall be elected. Otherwise, the smallest set of nominees shall be identified, such that each nominee in the set defeats every nominee outside the set. The nominee with the fewest highest-ranked votes who is not in that set shall be eliminated. If there is now a single candidate who defeats all others head-to-head, that candidate shall be elected. Otherwise, candidates shall be eliminated in this way until a candidate is elected, eliminating nominees in the set only if all other nominees have already been eliminated. Exact ties shall be broken by lot.
In a state admitted to the Union less than two years ago, members who have served in the body continuously since its establishment shall be deemed to meet the tenure and roll call qualifications. Otherwise, if there are no eligible candidates, the election shall be suspended until such time as there are.
Section Four
Congress may, by the concurrence of three-quarters of the members duly chosen and sworn in the House of Representatives, amend Section 3 of this article.
Section Five
Any pledge, vow, oath, or any other commitment by a Senate elector regarding his vote for U.S. Senator shall be null, void, and utterly without force from the moment it is made (excepting her oath to this Constitution and her state’s Constitution). Any instruction, advice, or requirement laid upon an elector, outside the provisions of this Constitution, shall be likewise null and void.
Section Six
In the first twelve months after this article becomes part of this Constitution, each state shall, under such rules as Congress shall prescribe, be simultaneously deprived of one of its senate seats, as randomly as possible, while preserving the equality of the three classes of the Senate. To fill the state’s remaining seat for the remainder of the current term, the state shall hold a senate election as prescribed by this article, except that the only eligible nominees shall be the current U.S. Senators from the state. Until this is completed, the first four sections of this article are suspended.
Section Seven
The provisions of this article are justiciable.
As we went on to discuss in the comment thread, you might have to make voting in partisan primaries mandatory as well. Otherwise, general election voters are still forced to choose between the lesser of evils nominated by their parties, and you end up with elections that look a lot like the terrible elections we already have. Flooding partisan primaries, however, makes America’s already very-weak parties even weaker, opening them up to even more populism.
This is one reason, among several, why America’s politics have always gravitated toward a two-party system even more than the U.K.’s, even though both countries use first-past-the-post voting and are thus subject to Duverger’s Law.
I defer to Daniel’s encyclopedic knowledge of global democratic-republican electoral systems to correct me on this, if I am wrong.
Or, at least, the obstructionist minority is getting punished. Except… isn’t the obstructionist minority getting exactly what they want?
Credit where it is due: Daniel Pareja had a very similar idea:
DANIEL PAREJA: On banning bullet ballots (and requiring full ranking), to avoid the centre squeeze issue, why not incorporate Coombs’ method? Maybe it has some failings that lead it to be less desirable than even Hare, but on paper it knocks out extremists who make a substantial chunk of the electorate vomit even as another chunk loves them.
In Coombs’ method, you vote a standard ranked-choice ballot, but, instead of eliminating the candidate with the fewest first-place votes, you eliminate the candidate with the most last-place votes.
If you have open nominations (unrestricted by something like DW-NOMINATE), Coombs’ method works pretty much the same as Gilbert’s suggestion, but with fewer steps: the majority simply all votes for their top guy and he wins with a majority before Coombs’ makes even its first elimination pass.
If you instead run Coombs’ method after the DW-NOMINATE restrictions have been imposed (which I think may be what Daniel is really suggesting here), I found it unnecessary. Requiring full ranking on ballots is so easy, so concise, so simple to simulate, and kills so many tactical voting strategies, I figured I was good to go.
In my proposed fallback election, DW-NOMINATE is doing most of the heavy lifting anyway. Controlling the nominees is the whole ballgame. Once you’ve reached that final ballot with two to six nominees, all of whom are from the middle of the chamber, further refinements to the electoral system bring (in my view) diminishing returns.
At the same time, I don’t really have anything against using Coombs’ method here. I’d just have to confirm through a lot of simulations that it doesn’t do anything weird.
These names for the groups are my own. I added them for ease of reference. I have no idea what the Venetians called each little group, if anything.
The idea apparently was that it would be too hard for bribe-makers to buy off the right people in advance, because there were too many of them.
No, special interest donor funding is not the same thing. We ferociously call that sort of thing “bribery” because we live in a high-trust society (for now) that no longer has any experience with the real thing. I’m not saying special interest donor funding is good or healthy, but it isn’t the literal quid pro quo vote-buying the Venetians were worried about.
There is one more category:
Swamp creatures (Jon Ossoff, Terry McAuliffe, Michael Bennet, Rand Paul)
These are not populists, but just party loyalists who worked so hard and so long that they earned a Senate ticket. They are generally not populists, and probably do make better Senators than the populists. However, an amendment that required us to elect this type of consummate partisan to the Senate would probably not make the political parties less influential, or the results less ideological.
Mason’s Manual provides some more detail on one implementation of this general parliamentary right, at 535.6:
After the roll call has been complete, but before the vote is announced, members may rise and address the presiding officer and, upon being recognized, may change the votes by saying, “yea to nay” or the reverse, and the chief legislative officer, upon recording the change, repeats back, “Senator (Representative or Mr. or Madam) _____ ‘yea to nay,’” or the reverse. It is not out of order for members to change their votes without waiting to be recognized by the presiding officer, but the best practice is to secure recognition before changing the vote.
I also don’t think we should sleep on the difficulty of achieving any of this. Doing any of these things, in any state, would require a state constitutional amendment. Mr. Russo notes this:
CHRISTOPHER M. RUSSO: Take Illinois as an example. A state constitutional amendment in IL requires a three-fifths vote of each house of the General Assembly, ratified by a majority of voters in a general election. Democrats could pass such an amendment through the General Assembly on a party-line vote. State-wide ratification would be harder but doable. (IL voted 54% Harris, 43% Trump in 2024.)
However, Illinois also has no real need to do this. Precisely because the Democrats are so successful in the state, Democrats currently control 68% of the seats in the state senate, have done so continuously since the 2018 elections seven years ago, and are certainly to continue to do so through at least the 2028 elections.
The Illinois Democratic Party doesn’t need to worry a bit about manipulating the nominees list in a Section Three election, because they can win with zero minority support in Section Two. That’s fine. We talked in the last article about how, if you really want U.S. Senators who represent the state, that means blue states will get blue Senators and red states will get red Senators. Only states where both parties have a meaningful voice will see more moderate Senators. Thus, our revived Senate will reflect our national spectrum much better than the current Senate.
This dynamic holds pretty steady across the board. The states where a majority party would want to amend their constitution to make their elections proxy elections again are (generally speaking) precisely the states that can’t do it, because they are too purple.
On the other hand, it’s possible that a state senate would want to delegate their electoral power to another branch for some reason besides political advantage. Perhaps the state senate, knowing its own power, is reluctant to turn every state senate race into a proxy election for U.S. Senator. I hate the idea that the states would neuter their own power to elect Senators, but they already willingly did that in the 1890s and 1900s, so we must be prepared for it.
My proposal also requires a hundred roll call votes, but, realistically, any legislator who has served for two years will have cast at least a hundred roll call votes. I only put that in to prevent weird manipulation of the process, for example by having a long-serving legislator refuse to cast any votes so as to preserve his DW-NOMINATE virginity.
However, I am not certain whether any of those constitutions were still around by the time the Thirteenth Amendment was ratified. This was in part because they saw the writing on the wall, and, in larger part, because the ex-Confederate states were all under military occupation and were forced to write new, slave-free constitutions as part of Reconstruction.
N.b. I am not saying that the decadence of the Senate, as bad as it is, is anything remotely like slavery. I’m merely noting a counter-example.
At an even higher theoretical level:
I think Gilbert may be making a further argument here: that this amendment proposal leads to the actual repeal of state legal provisions, rather than merely preventing their enforcement like most federal pre-emptions. I don’t think that’s right.
Section Five in my proposal renders “any pledge, vow, oath, or any other commitment[, or] any instruction, advice, or requirement laid upon an elector.” There are various state laws that require various electors to pledge to vote in a certain way. My Section Five voids those pledges, but it does not void the statutes that impose them. The law stays on the books until either the law is repealed or this amendment is.
Indeed, the Johnson Amendment itself faces growing First Amendment scrutiny.
Actually, I think this is not a good way of explaining ranked-choice voting to unconverted voters, because voters get understandably nervous about talk of “redistributing” votes. This way of thinking leads to bad newspaper op-eds about how instant runoff voting (single transferable vote) is terrible because it allows people to “vote twice” and suchlike. Instant runoff voting (STV) is actually terrible because of obscure center-squeeze problems you need a college degree to understand!
That sounds like a wrestling match, but, really, weren’t both candidates better suited to the ring than the law library?
The Lion, the Witch, and the Wardrobe, shortest of the seven Narnia books, is 38,421 words long. At this moment, the combined length of all three articles clocks in at 40,027, although this may change slightly in the editing process for this one.
Don’t worry, we’re still a long way off from Harry Potter territory. The shortest HP book, the first, is 77,325 words.
Note that there are often small variations in word count between different counters.
Wouldn't it be possible to adjust Anthony's proposal to make sortition work?
If after X number of days the state legislature can't get a super majority, every candidate who receives at least 30% of an approval vote (to ensure the minority party can get some candidates in. If they have below 30% of the legislature, the majority party already has a super-majority.) is thrown into the pool and whoever is randomly drawn gets to be the Senator. Since there's a limited number of nominees based on the number of state legislatures, the majority party is likely to get one of their candidates, but there's a nontrivial risk they draw the wrong party. Maybe a party always decides to roll the dice instead of compromising but the incentives should be pointing towards compromising.
I look forward to seeing how this proposal doesn't work. :D
Well lets see who gets petty vindication here! On everything actually but today I only have time for one point before going to bed:
You misunderstood my mechanism for electing the least hated candidate. The entire point of proportional representation is that the majority gets a majority but /not/ all of the seats. That would also hold on my exclusion panel. Since I think nobody actually understood it let's look at an hypothetical example:
The senate of the great state of Examplia has 10 member currently divided 6 Evil 4 Stupid. (By the way I am not meaning this in an anti-American way, politicians are worse than the general population everywhere.) Ill call the evil members E1..E6 and the Stupid members S1..S4.
They now use STV to elect the 9 people who should /not/ go to Washington. I'll assume strict party line votes. All the Evils rank S1, S2, S3, S4, E6, E5, E4, E3, E2, E1. All the stupids rank E1, E2, E3, E4, E5, E6, S4, S3, S2, S1. So 10 votes and 9 seats, for a quota of 10/9=1.1... (Traditionally the quota is rounded up to whole votes to simplify the math, but that is not really necessary and actually a bad idea if there are very few voters, because then the quota in our example would be 2 and we would go to random elimination after electing only 5 candidates).
First count:
The 6 votes of the Evils are worth 5.4 quotas so they immediately elect S1, S2, S3, S4, and E6 to the exclusion panel and leave a surplus of 0.4 votes for E5.
The 4 votes of the Stupids are worth 3.6 quotas, so they immediately elect E1, E2, and E3 to the exclusion panel and leave a surplus of 0.6 for E4.
Second count:
E5 is eliminated and E4 therefore elected to the exclusion panel.
So the elected exclusion panel is S1, S2, S3, S4, E1, E2, E3, E4, and E6. E5 is the only state senator not elected to the exclusion panel and therefore the new federal senator.
Now here is the key point: If 10/9 of a vote say X is not our new senator then X is not the new senator. No matter how the Evils vote, the Stupids alone have enough votes to to disqualify 4 candidates of their choice (or at least 3 if they are too stupid to coordinate their votes within the stupid party).
Now here's the catch: This really elects the least hated candidate who can be _very_ different from the even overwhelmingly most loved one. If 8/10 state senators agree X should be the federal senator and 2 are dead set against that then the 2 do get their veto and the 8 will have to settle for their second choice. But then this basically is the good and hard version of what you wanted DW-nominate to do, no?
Also if proportional representation is too hard to explain here is a roughly equivalent procedure: The state senate elects, via whatever traditional method, the one schmuck who won't get called in the following roll-call. If you want to avoid the implication of schmuckishness that guy might be the president pro electione and do the calling of the other members. The rest are called on in alphabetical order and everyone called on gets to veto one of the remaining candidates. That leaves one candidate unvetoed, who is the new federal senator.