It seems to me laws mandating party primaries would be unconstitutional under the First Amendment, and there is a significant chance they would be held ineffective by courts. Here is a similar, but slightly different case, that I haven't completely read, so it is possible that the court says primaries are fine and completely great somewhere: https://supreme.justia.com/cases/federal/us/530/567/
It is also my understanding that in a lot of states, the party actually has to elect to use the state primary apparatus.
Anyway: 1) there hasn't been a King of England for several centuries :)
2) there is a play (and a filmed BBC version I think) where Charles III vetoes a law and dissolves Parliament. Ultimately, he is forced to abdicate by protests (and the opposition leader is an asshole, first advises the King to veto the law, but then sides against him). https://en.wikipedia.org/wiki/King_Charles_III_(play)
I (as a Croatian with no UK connections :)am also very interested what powers and possibilities a UK monarch going against the Government would have, since idk how courts would view the various advice conventions, and it could (on my uninformed reading of some laws) also devolve into nonsense like the government hiding seals from the monarch. But, it seems to me the various issues like raising taxes wouldn't be an issue in modern times, as the Civil Contingencies Act lets the monarch (and senior ministers, but the monarch-in-council is the ordinary preferred method, and woild presumably have precedence over contrary ministerial regulations) do basically whatever that can be done by prerogative or statute, including presumably raising money, except some exceptions like violating the Human Rights Act.
I am also unsure of how the Privy Council functions, lots of things are done on its advice (but not consent, that is only in the enacting clauses od statutes), but the quorum is low and AFAIK a monarch could easily hear advice from people he already agrees with (in addition to adding and removing privy counsellors). It is unclear whether it would be better to do things with or without advice, as there is a chance courts would declare the advice justiciable, so maybe ignoring advice whenever possible is actually preferable. I guess if it were to actually happen, the best litigating position would be to hear advice from who agree with the monarch, but also specifically declare he would have done it anyway.
I hope you are interested in my thoughts on the authority of British monarchs.
The point you bring up about the monarch being forced to abdicate is in fact the very thing that keeps the monarch from using much of the authority that he does legally possess. Popular revolt is the primary check on the power of the monarch.
The term "monarch-in-council" is just a fancy way of saying "the Cabinet", that is, the council of the monarch's advisors, whom the monarch, on paper, selects, but whom the House of Commons can fire (through a vote of no confidence). The Cabinet, meanwhile, is just those members of the Privy Council who are actively heading ministries (with the occasional exception for ministers without portfolio). Privy Council appointment is lifetime, but the prerogatives of a Privy Councillor not in government are generally very limited. (For instance, many government documents which require Privy Council membership to view also require a security clearance, and Privy Councillors not in government have no decision-making authority in executive matters.)
Since they already overruled a royal proclamation based on illegal advice, I'm pretty sure if it became practically relevant the UK supreme court would also overrule a royal proclamation made without any advice. The principle of courts overruling the actions of the king is already established. So if Charles just dissolves Parliament without advice that would just be held to legally not have happened. If he refused royal assent to a law that would be harder because that is an inaction so there is just no instrument to quash. But ultimately they have been clear that the modern democratic substance wins over the traditional form whenever they conflict so they would find some theory to make the law stand. I think the decision on Johnson's pretend prorogation (https://www.supremecourt.uk/cases/uksc-2019-0192) is really worth reading for the dicta, it's making it very clear and occasionally borderline explicit that the ceremonial constitution is not the actual constitution.
Yes, but only because they go by the actual substance and the actual substance is that the prime minister made the decision. But as I said read it for the principle approach more than the specific application, and the principle approach is that the substantial modern constitution trumps the ceremonial one as soon as they clash in practice. Also the hypo of no advice gets near explicit for example here: "50. For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing,[...]"
You're first quote of me omitted Rule 1, which was what we are actually talking about. You might have meant to include that one instead of Rule 2.
"
Rule 1:
No person who has previously been a member of any house in the state legislature, or the Governor or lt. Governor in the State executive branch, or been a member of the US Federal House of Representatives, or held any other office which is normally determined by means of a statewide election, or who has been President or Vice President of the United States, may ever be a US federal senator under any circumstances, ever.
"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."
To be clear, you don't actually have to have a special rule about minority-party legislators being required to stick to their votes.
Take say the recent vote to invoke cloture on the shutdown crisis: The voting was held open for about two hours while waiting on the last four hours, all stout republicans: 3 members of leadership plus Cornyn.
All you have to do is make certain that the person presiding over the vote is also the last person to vote, or closely coordinates with the last person to vote. Then, he holds the vote open as long as he wants, and close it anytime he wants by simply choosing when the final vote is cast.
Hold it open for a few hours so everyone goes back to their offices, then give a secret signal, all the members of the majority party rush in to change their votes, and then bam, voting closed. A few minority members might react in time to change their votes too, but not enough to matter.
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
One of my first ideas was that, instead of a fallback election, you just put the names of every state senator in a hat and draw one. Yippee!
I like yours better, because it allows more open nominations. However, you'd have to cap nominations in some way, because, if you don't, both parties would just nominate millions of people ad infinitum to increase their odds. And you'd have to cap nominations without giving the majority control of who gets nominated. However, there are ways of doing this!
Have each senator get one nominee only. I thought there was some limit on legislators proposing a nominee in the original proposal, but if there wasn't just do that.
First, I brought up the example of the Senate of Spain as a larger body--but not as a proportional body! The Senate of Spain is, in fact, extremely malapportioned! As I noted, each province of mainland Spain gets four Senators, directly elected, regardless of population, for 188 Senators. (And then there are twenty from places not in mainland continental Europe, apportioned differently.) Then each autonomous community receives Senators depending on its population, those being elected legislatively. This results in, as I said, the autonomous community of Castile and León having about three times as many Senators as Madrid, despite having about a third of Madrid's population.
The result of this entire process is that in the most recent election to the Senate of Spain, in 2023, the two major parties in Spain, the Partido Popular and the Partido Socialista Obrero Español, received very similar vote totals (23.5 million to 22 million) but the former elected 120 Senators to the latter's 60 (plus 12 from an associated party in Catalonia), out of the 208 elected. When the legislatively elected Senators are added to this total, the Partido Popular holds an outright majority in the body.
The insight of the Spanish Senate is twofold. For one, it is a model which blends direct and legislative election, though it does so simply by having a whole lot of Senators. For another, having as it does less democratic legitimacy than the Congress of Deputies, it has less legislative authority than that body. I think this is the key insight: the further removed from democratic legitimacy a legislative body is, the less legislative authority the People will tolerate it having. (Maybe at one time this was not true, but I think it is now.)
"The constitution of a second legislative body for the united Legislature, involves questions of very great difficulty. The present constitution of the Legislative Councils of these Provinces has always appeared to me inconsistent with sound principles, and little calculated to answer the purpose of placing the effective check which I consider necessary on the popular branch of the Legislature. The analogy which some persons have attempted to draw between the House of Lords and the Legislative Councils seems to me erroneous. The constitution of the House of Lords is consonant with the frame of English society; and as the creation of a precisely similar body in such a state of society as that of these Colonies is impossible, it has always appeared to me most unwise to attempt to supply its place by one which has no point of resemblance to it, except that of being a non-elective check on the elective branch of the Legislature. The attempt to invest a few persons, distinguished from their fellow-colonists neither by birth nor hereditary property, and often only transiently connected with the country, with such a power, seems only calculated to ensure jealousy and bad feelings in the first instance, and collision at last. ... It will be necessary, therefore, for the completion of any stable scheme of government, that Parliament should revise the constitution of the Legislative Council, and, by adopting every practicable means to give that institution such a character as would enable it, by its tranquil and safe, but effective working, to act as an useful check on the popular branch of the Legislature, prevent a repetition of those collisions which have already caused such dangerous irritation." (Anti-French bigotry omitted.)
In other words, the question of "how to have a legislative body with less democratic legitimacy that can still effectively check the democratic excesses of the popularly elected body" is one that has been of "very great difficulty" for a very long time in a great many places! That is not to say that it is not worth trying to make it work, because I do think there is value in having a house of "sober second thought" (still a better analogy than a cooling saucer or nuclear reactor control rods; further thoughts at https://canadianreturnee.substack.com/p/why-canadians-should-rethink-the/comment/171542232 ), just that it is a question that has had a lot of thought put into it and arguably never really had a satisfying answer. (Including the answers of "elect it anyway", see among others Australia and many of its states, and most US states, and "just get rid of it", see among others New Zealand and every Canadian province*.) So whatever the issues with the merits of the proposal, coming up with something that is as novel as your proposal is itself a good thing.
*Prince Edward Island had one of the most interesting constructions of a bicameral legislature of which I'm aware. Originally the province was divided into 15 malapportioned constituencies (later 16 because of population growth, though it was still very malapportioned). The lower house was elected by the voters in each riding. The upper house was elected by the landowners in each riding. In 1893 these were merged into a unicameral legislature. (Yes, this means someone could have voted sixteen or seventeen times, by living in one riding but owning land in all of them.) This was changed in the 1960s to have each riding's voters elect two members, and then in the 1990s the legislature was changed to have twenty-seven single-member constituencies, with less malapportionment.
The "constitution of the [US Senate]", meanwhile, may at one time have been "consonant with the frame of [American] society", but it may no longer be so. (I would argue that it hasn't been since the Civil War, which was arguably the first example of a major social problem that federalism was supposed to allow each state to develop its own solution for, that being slavery, being decided firmly in favour of one position at the national level. The slaveholding South came to view the Senate as its final bulwark against the abolition of slavery, and the admission of California as a free state without a balancing slave state was bitterly opposed by slave-state Senators like Albert Gallatin Brown who feared the admission of more free states with votes solely from free-state Senators eventually leading to the necessary supermajorities to amend the Constitution. As I've noted to you before, though, one of California's first two Senators was pro-slavery, and the ideological balance of the Senate did not tilt against slavery until the later admission of Minnesota. That is not to say that the Reconstruction Amendments were bad, or that the Union should have allowed the Confederacy to secede, or that slavery was in any way good or worth preserving, just that the eventual solution may have had knock-on effects like eventually making the Senate no longer reflective of the nature of American society.)
To the question of mandatory voting putting moderate demagogues (as opposed to extremist demagogues) in office, I think that depends on the extent to which all of those non-voters suddenly having to go to the polls are turned off not just by extremism but also by demagoguery. Maybe all those current non-voters would just end up treating voting as a "vibe check" rather than a serious civic duty and the system would tilt even further in a populist direction. I think that's a valid concern. (I hadn't noticed it before when I pointed out Australia's voter participation rate, but Australia has a very high rate of informal votes, what we up here call spoiled ballots--you'll forgive me for not knowing what it's called in the US, with in 2025 about 5% of all eligible voters choosing to cast such a ballot for the House of Representatives and about 3% doing so for the Senate.)
As for upper houses not excessively influenced by the Progressive Era, I'm actually not sure if there are any that are truly that way any more, whether by law (eg UK House of Lords, Parliament Acts 1911 and 1949) or convention (eg Senate of Canada, UK Salisbury Convention) or construction (many others, through built-in limited powers, direct election, and so on). But, see Lord Durham above, this is in part because it's a lot easier to have an upper house that the People will accept as legitimate and useful (or at least just legitimate and useful enough not to get rid of) if it incorporates at least some of those Progressive Era principles, however ill one might think of said principles!
My suggestion of the Venetian system is somewhat tongue-in-cheek. I'm aware that it was intended in part to check quid pro quo bribery, and you're right that it might well deadlock in any legislative body that isn't heavily tilted in one partisan direction or another, and when it doesn't it probably wouldn't promote moderation. (Wyoming's Senate ain't ever returning a Democrat under any method--there's only two of them in the entire body.) And if you get unlucky in choosing any of the groups by lot, then yes, one party or the other in any close legislature will control the entire process from then on. It's more a case of "maybe there's something worth considering here" than a suggestion to adopt it outright.
On businessmen in government, I defer to Jean Chrétien's observations:
"It is not the government's purpose to make a profit the way a company does, because a company doesn't have to give a damn about the unemployed poor or provide services that are non-commercial by definition."
"I learned early that business is business and politics is politics. The proof is how few important businessmen have made good politicians. They may think that they are very smart about everything because they made millions of dollars by digging a hole in the ground and finding oil, but the talent and luck needed to become rich are not the same talent and luck needed to succeed on Parliament Hill."
(Also: "When you're a mayor and you have a problem you blame the provincial government. If you are provincial government and you have a problem you blame the federal government. We don't blame the Queen any more, so once in a while we might blame the Americans.")
"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."
This arguably goes back to a resolution of the English Parliament in 1624, which provided that membership in the House of Commons is something "that a man, after he is duly chosen, cannot relinquish." This was because duly elected MPs didn't want to serve because travelling to and from Parliament was arduous and time-consuming, over bad roads, which took them away from their local affairs, and this was made worse by the fact that members of the Commons were not compensated for their service in that body until 1911 ( https://researchbriefings.files.parliament.uk/documents/SN05075/SN05075.pdf ). So having to take time away from your local business to go debate and vote in Parliament was a real hardship. This rule stands to this day, though there are a few offices that exist solely for this purpose that require a member to resign from the Commons upon assuming them, so MPs can in effect resign their position by requesting an appointment to such an office, which is conventionally always granted.
"Once an amendment proposal picks up a partisan valence, it’s dead."
Except that one time when the one side (largely the Republicans) won a skirmish concurrent with the last few years of the Taiping Rebellion (yes, I am downplaying the US Civil War here. But go look at the body counts) and forced the other side (largely the Democrats) to agree to their amendments just to have a voice in the national government again.
But things have failed far beyond the point of fixing via a technical amendment to the method of election to the federal Senate if a shooting war is at all imminent.
"the very threat of it keeps Parliament from going too far."
I don't think this is what keeps Parliament from going too far. What keeps Parliament from going too far is the ease of repeal of any especially partisan and unpopular proposal unless a government thinks it will remain in power for a very long time, enough for those proposals to get baked into the law and society and be next to impossible to repeal without bringing down the entire structure like a Jenga tower. (And if you pass too many things that piss off the electorate, they'll turf you out at the next election.) This creates its own form of moderation, where policies might be transiently enacted by one side or the other, but can't stick unless there's broader agreement. I think Linz had something to say about the rigidity of a presidential system giving the appearance of solidity while hiding its brittleness, while the fluidity of a parliamentary system gives the appearance of chaos while hiding its robustness.
"Perhaps the best way to summarize the basic differences between presidential and parliamentary systems is to say that while parliamentarism imparts flexibility to the political process, presidentialism makes it rather rigid. Proponents of presidentialism might reply that this rigidity is an advantage, for it guards against the uncertainty and instability so characteristic of parliamentary politics. Under parliamentary government, after all, myriad actors-parties, their leaders, even rank-and-file legislators-may at any time between elections adopt basic changes, cause realignments, and, above all, make or break prime ministers. But while the need for authority and predictability would seem to favor presidentialism, there are unexpected developments-ranging from the death of the incumbent to serious errors in judgment committed under the pressure of unruly circumstances-that make presidential rule less predictable and often weaker than that of a prime minister. The latter can always seek to shore up his legitimacy and authority, either through a vote of confidence or the dissolution of parliament and the ensuing new elections. Moreover, a prime minister can be changed without necessarily creating a regime crisis."
EDIT: For a real doozy of a celebrity candidate, don't forget Herschel Walker.
First, on the question of using the royal veto, while as I said I think partisan politics is a more effective check on keeping parties from going too far, there is still an obvious way around this: cancel general elections! Especially in the UK, that could just be done through an ordinary statute, the Lords' objections overridden by the Parliament Act 1911 (and one section of that act appropriately amended), and give MPs life tenure, with the composition of the Commons changing only at by-elections upon death or resignation.
The royal veto as a reserve power exists, among other reasons, to prevent exactly this sort of breakdown in democratic governance. If such a bill were passed through Parliament, the monarch would veto it, and would be right to veto it--but even its being debated and passed would already have done so much damage to the democratic order that the veto would serve to restore that order (to some extent).
Second, on the question of those Pierre Trudeau pieces you noted I linked, those aren't a defence of the Westminster system generally, but rather a defence specifically of the Canadian form of federalism in which the provinces do not receive input into the operations of the federal Parliament. Other forms of federalism that more or less follow the responsible government model give the subnational polities (whatever they may be called) more input, in various ways.
EDIT: Third, on the point of US political parties not having the same functions as political parties in other democracies, what I think they do have a lot of control over is fundraising and aiding local campaigns monetarily. Current jurisprudence, I believe, puts few limits on that sort of thing (at least if you structure everything correctly), so the national umbrella organisations especially can throw around substantial sums of money to help candidates win key races--if the current executive likes the candidates! So those organisations end up as agglomerations of what would be anywhere from two to four or even five political parties in other countries, all fighting internally over control of the fundraising and spending apparatus. (This is my read, I'm probably wrong in some key details that invalidate this entire point.)
EDIT #2: Fourth, it occurs to me that there are some votes which are not roll-call votes but would nonetheless be more important than, say, a roll-call vote on whether to recess. What mainly comes to mind are unanimous-consent motions that are passed without objection. (That might not affect very much, it would probably just make everyone look slightly more moderate, but maybe there's some edge case I'm not thinking of, so I brought it up.)
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.
Okay, you're right that I didn't understand you! I grant you *partial* vindication, because your method really is better than I gave it credit for, and there was enough there in your comment that I *should* have figured out what you were going for based on the word "proportional" and all that implies -- but only partial, because it really wasn't very clear! Hmph! ;)
Now, I have questions for you. The truth is that, even before your comment, I thought there was promise in your general sort of approach. You have already been thanked in a footnote in the draft of Part IV, and I may have to make it more profuse if I steal more from you. And, yes, I think you are correct that the thing you are aiming at is "the good and hard version" of what I wanted DW-NOMINATE to do.
Question 1: This is using a Hare quota rather than a Droop quota, yes? This threw me off.
Question 2: What if someone abstains or spoils their (secret) ballot? There's several approaches to this, but I want to know which one you have in mind.
Question 3: At a high theoretical level (not sure how much you have to say about this but I welcome it), does this (as a Hare method) inherit all the usual weirdness of Hare methods? Center squeezes and tactical votes based on later-no-harm manipulation and clone non-immunity and so forth? Or does the fact that so many people DON'T get elected somehow cure this? I haven't thought it through thoroughly but am trying to, and welcome your thoughts.
Question 4: Does this beat Coombs' method? (I don't think it *reduces* to Coombs' method, but sometimes it takes me a few days to work such things out, because my brain moves slow.)
Honestly I only decided to do fractional transfers half-way through designing the example and then got translation of the quotas wrong. The point of the Droop quota is really to make the quota as small as possible without electing too many candidates, because then we get more surplus transfers and surplus transfers are the good part (because see answer to question 3). Translated to a fractional quota that means the moral equivalent of the Droop quota is #votes/(#seats + 1) + epsilon and rounding that up to an integer gives the usual formula. So in my example the quota should not have been 1.1... but rather something like 1.00000000000000001. This would not make a difference in my example but one could construct examples where it would.
On Q2)
Hmm. The mathematically best and therefore most nerd-satisfying answer is Meek's method (https://en.wikipedia.org/wiki/Counting_single_transferable_votes#Meek). On the other hand that is not that much less complicated than DW-NOMINATE. Later no harm means doing this on purpose can only hurt their own side and these are highly sophisticated voters (by advice if not their own understanding) so I think I would do the simplest thing and let them suffer the consequences: Count the vote for nobody and leave the quota as if the vote had been valid.
On Q3)
Generally the sunshine and rainbows part of STV is surplus transfers. There one quota gets one seat, voters are not bound by party proposals, and all the voting paradoxes don't strike yet. Then eliminations are the kludge to clean up the fractional rests, there is really no clean way to do that, and that's where the paradoxes and strategies sneak back in. The single-member case is worst, because then there are no surplus transfers at all and only eliminations.
The limit of all the system's perversions is really that every uniform group of voters always at least gets their fair share rounded down. There are conceivable situations where shenenigans might cost a group more than one seat but only if that loss comes out of gains they would otherwise have made from the rounded-down part of other people's fair share.
In the situation we are talking about here and a house where the honest division is two parties, that means the worst case is that one party might steal one strike from the other, thus electing a second least hated candidate to the federal senate. This would be annoying but not fatal to the overal system.
Even more generally, there is no such thing as a good voting system. According to https://en.wikipedia.org/wiki/Gibbard%27s_theorem , whatever system you end up designing will, by mathematical necessity, also be susceptiple to strategic shenenigans, which ultimately will stem from underlying perversions unavoidable because of https://en.wikipedia.org/wiki/Arrow%27s_impossibility_theorem . All voting systems are therefore trade-offs of which perversions one is least unwilling to live with. In multi-member situations I'm pretty confident STV is the best anyone came up with so far. In the degenerate single-member case of IRV the situation is more ambiguous but even there I think Internet voting nerds tend to get carried away with one side of the trade-off. Approval, for example, is much inferior but often proposed as a supposedly better alternative.
On Q4)
Yes. Coombs' method is a single-winner method. It doesn't give you what I talked about in ad 3.
All that said, I think doing it with STV is not really what you are looking for. I originally said it could be done with proportional representation and also STV is the best way to do proportional representation, but on second thought I don't think that means STV is the best way to do what you are looking for. For one, it is hard to explain and would therefore give you the same problems as the first attempt. For two, the big advantage over party-list systems is less pertinant in a situation of a small body of highly sophisticated voters. For three, there is a lot of information that can be hidden in rankings that don't really matter and this can be abused to de-anonymize a vote. That last disadvantage is of course shared with all ranking systems.
Ultimately I think my schmuck method from the previous comment gains much more in understandability than it looses in theoretical elegance.
If you want it less good and hard (i.e. still have a final vote among more than 1 candidate) then it is still simpler to give the strikes to ad-hoc alliances of members. Those would typically but not requiredly be the parties. Determine the total number of strikes and distribute them among the alliances according to a proportional algorithm to be prescribed by statute. The statute should say https://en.wikipedia.org/wiki/Sainte-Lagu%C3%AB_method , but that is probably already too complicated given that the algorithm for apportioning representatives to the states also isn't constitutionalized. (I briefly thought you could require using the same algorithm, but you really don't want to guarantee a minimum of one strike to each alliance or else there will only be single-member alliances.)
Hmm… if the idea is that DW-NOMINATE and the subsequent election is meant to be a painful threat and backstop to avoid deadlocks, couldn’t we keep the regular election at first, and use the threat of a secluded conclave (where they’re not allowed to leave until they choose) as the backstop?
This way (it seems) most of the costs of the conclave process are avoided because state senators would much rather come to a compromise while they’re still free and home, especially since they’ll be forced to make the exact same kind of compromise eventually, but behind gates and potentially far from home in DC (e.g. if the safe harbor provision is used, or maybe DC is simply required for the backstop).
Could you make Gilbert's suggestion of replacing DW-NOMINATE with an exclusion vote work by having multiple rounds of exclusion voting, and in each round each party of the state senate gets to exclude someone until you're left with the required number of nominees? If you don't like mentioning parties in the amendment, you can phrase it as a vote where the two candidates with the most votes in that round get eliminated.
If one party has a two thirds majority then you're not likely to get to the fall-back method anyway.
Perhaps there's a way to game this … I haven't thought of one though.
Gilbert himself has re-explained his proposal in this comment section, and it makes more sense (at least to me) now. I think you're thinking along similar lines as he.
"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."
I'm always saying this, but it's true here in a very literal sene: nearly 100% of our political problems in America today are because we don't love our neighbor.
Yes, to some extent this is just human nature, which is why the Constitution is designed so fiendishly to distribute power. ("If men were angels," as that wonderful Madison quote begins.) But things have gotten really bad recently because (if I may be so bold) we have become a worse, less virtuous people.
Reading this I have come up with a different proposal:
The entire state legislature elected both senators at the same time. Each member gets one vote. Top two vote getters win. No person currently in the legislature, nor currently holding any other state elected office is eligible.
Maybe it's a single transferrable vote, maybe not. Maybe it's just the state Senate, maybe it's the entire legislature in joint session. One legislator, one vote in a joint session.
If one senator dies or resigns, either both are removed, or the governor appoints a replacement who is ineligible to be elected at the next regular Senate election.
Doesn't this just run into the same problem of state legislative elections becoming proxy elections for the federal Senate, which was why states like Oregon had long since moved to "plebiscites" for Senators with the legislature duly "electing" the popular choice?
By electing both senators at once, the legislative *primaries* become proxy primaries for the Senate race. You probably get one senator of each party unless one party splits, or one party has 2/3s of the seats.
Oh, right, I had a brain fart and didn't notice that it's one vote for two positions; I'm used to having as many votes as there are positions when there are multiple positions to be filled at once. (Though in elections for the House of Councillors in Japan, some prefectures have multiple members and those are elected via single non-transferable vote, which is what this system is called.)
At any rate, I feel this still doesn't solve the issue James really wants: wise, well-informed, moderate Senators who can bring the Senate back to the more genteel traditions it started with. I think it still risks ending up with a whole bunch of Ragey McRageFaces, just chosen by the legislature instead of the voters at large, though whether they're from different parties or the same party depends on whether there's a two-thirds majority and the party with it can properly coordinate a split. If both sides know they're going to get one Senator, why wouldn't they just all vote for whoever's going to be the most reliable partisan?
Drifting into another topic, "having was many votes as there are positions" is the fatal flaw of basically any multi-member district voting arrangement.
I'd like to see a system where every legislative district elects three (or more) members at the same time, but everyone gets only one vote. This can, but doesn't have to, be single transferrable vote.
The big parties can set up primary rules that produce fewer than 3 candidates, but it has to be an algorithmic rule. The small parties can do that or just tell the ROV who their candidate(s) are.
This would be good in the House. One advantage of a much-expanded House is that you could do this more easily, without exaggerating the size of districts too extraordinarily.
Two-step process - make every existing district a three-seat district until the next reapportionment, then create 1300 three-seat districts, each with about 90,000 constituents.
I know the issues with the arrangement; we use it for municipal elections in my city since everyone is elected at-large (I think every municipality in my province does). Whenever a ward system gets proposed it's rejected on the basis of wanting to stop NIMBYism.
As I said, in some House of Councillors prefectures in Japan, they use the system you propose, and until reforms in the 1980s the nationwide constituency elected 50 councillors via single non-transferable vote at each election. (After the reforms that constituency switched to proportional representation, using what's known as "mixed-member majoritarian" where the proportional constituency allocates seats only on the basis of its own result without taking into account the results in the local districts, tending to lead to a majoritarian outcome.)
The main problem with such a system, and it's also seen to an extent in Ireland which uses single transferable vote in multi-member constituencies, is that it forces political parties to guess in advance how many seats they might realistically win, because if you nominate too many candidates then you'll split the vote between them and elect fewer than your support might have given you otherwise (this would happen to the Liberal Democratic Party in Japan in the nationwide constituency before the reforms; I do not know if the LDP pushed those reforms through precisely because of this problem) but if you nominate too few then your representation in the legislature won't reflect the level of your popular support (this happened to Sinn Féin in the 2020 Irish election, where they could well have won 70 or more seats had they run as many candidates as Fianna Fáil and Fine Gael).
Spain uses a similar system for elections to its Senate; in provinces in mainland Spain, voters have three votes for four positions, typically leading to the most popular party in the province electing three Senators and the second-most-popular electing one. Looking at the most recent election to Senate, of the forty-seven provinces of mainland Spain, only four did not follow this 3-1 pattern in their results. (Mexico takes this a step further and just has voters vote for parties for the Senate, with the most popular party in each state electing both its nominated senatorial candidates and the second-most-popular choosing one of its two to serve.)
How candidates are nominated is another matter altogether; as noted in the article I linked to James and he linked in this piece, the current system in the US largely dates to the Progressive Era, which doesn't exactly have a great track record when it comes to its democratic reforms.
I liked the original DW-NOMINATE idea, but reading this response to critics I had an idea that potentially deals with many of the issues people have had while still limiting the pool of candidates to be close to the median.
The core of my proposal is to use the old "I cut, you choose" logic. Rather than using an algorithm to determine the nominees in round 2, we just let the minority party pick. However, they must nominate according to some kind of proportionality rule that requires that they nominate some minimum number of majority party members according to how big of a majority they have. Fill in the details of what that proportionality rule looks like depending on how many candidates you want for the vote and at what point you want it to be impossible for anyone but majority party candidates to be in the running. As an overly simplistic example, maybe you have to nominate 10 candidates and the percentage a party has in the chamber determines how many candidates must come from among their members (so a 60-40 state senate would require the minority party to nominate at least 6 majority party members). Then, the whole state senate votes on the slate of nominees using your favorite voting method.
The minority party has an incentive to choose the most palatable members from the majority party *and* the members of their party who they expect to be the most palatable to the majority party (since they need support from some percent of the majority party to have any chance at getting one of their own elected). Thus, a slate of the most mutually-agreeable candidates weighted by the size of each party. No complex algos, no ability to game the selection process with weird parliamentary procedures or long term vote moderating strategies, no deadlocks from supermajority rules. We also can ditch the rules that limit it to members who have done a certain number of votes if votes in the state senate isn't an intrinsically valuable eligibility requirement.
Problems with this that I haven't thought about enough yet: (1) what if there are more than two parties? (2) what if a state is super annoying and does everything in a unique snowflake way and their state legislatures are officially nonpartisan? (I'm looking at you, Nebraska); (3) what do we do with quasi-Independents? (e.g., Bernie Sanders). I think these are probably solvable with more thought, but I just wanted to outline the idea here as a start in case I'm missing some critical flaw that dooms the whole idea.
This doesn't quite have the same level of guarantee of restricting the eligible pool to moderates: the minority party might try a gambit like nominating a hyper-extremist of the other side, with the hope that the majority prefers a moderate (and so they get to push the envelope slightly further toward their preferred moderates), but they miscalculate and the hyper-extremist ends up winning. I think that's an acceptable risk though - I expect that only needs to go wrong a couple times before the minority party realizes that the risk-reward ratio isn't great. In any case, the reformed Senate will likely have a few extremists hailing from extremist states anyway.
I think the main issue here is that it would entrench the notion of partisan caucuses into the Constitution. Yes, they exist, and they're (probably) not going anywhere, and ordinary bills do reference them from time to time (as I recall the proposed John Lewis Voting Rights Advancement Act's provision for redistricting referenced party registration) but it's both a bug and a feature of the US Constitution that it doesn't. (A feature in that it's saying by omission "don't form these, they're bad" and a bug in that it's left with no means to control them, whatever form they take, even as it precludes banning or severely restricting them legislatively because they're obviously a core subject of freedom of peaceful association.)
Fekking Nebraska always throwing mud in our gears! STOP BEING WEIRD, NEBRASKA!
(Nebraskans, I jest only.)
I agree with Daniel's criticism BUT AT THE SAME TIME I think there are... let's say for now that I think there are related approaches that can avoid the party difficulties you've noticed. I'll say no more for the moment, because I am still thinking, but we are thinking along similar lines.
On reading the post more closely, and contrary to my previous statement, I see no route to me getting pettily vindicated on mislabeling or not holding roll-call votes, nor on collapsing DW-NOMINATE to two points, or on adjourning the two-thirds part of the election process; therefore be it known to all to whom these tidings come that on these questions James stands pettily vindicated.
Now on to my remaining points of petty vindication:
My theoretical point on overturning vs. preempting incompatible law is totes relevant! Here's how: It is conceivable if admittedly not likely that even a career politician may feel bound by an oath even if it can't be enforced by the human legal system. Your amendment says "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)." Here's the loophole: The state Constitution can contain a provision purporting to bind the electors. That provision is unenforceable, but there is an explicit exception allowing the oath. That would be neatly resolved if such a clause was completely nuked from the legal order and I took the next sentence ("Any instruction, advice, or requirement laid upon an elector, outside the provisions of this Constitution, shall be likewise null and void.") to mean precisely that. This is actually exactly how the German supremacy clause works ("Federal law breaks state law.") but much stronger than the American version ("[...]shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding."). In the American version (what German lawyers call "Anwendungsvorrang") the inferior conflicting law remains "in the Constitution or Laws of any State" in the German version ("Geltungsvorrang") it doesn't. In practice there are two differences: If it is only Anwendungsvorrang, the clause can revive if federal law changes. And if it is only Anwendungsvorrang, you made an explicit exception to allow the state to require its senators to swear by it.
On the parties collaborating to statistically de-moderate their respective moderates in DW-NOMINATE:
This would start happening years before the election and in particular before they would know which party is in the majority at the next election. In that situation it is plausible that they would collaborate to shoot each side's ?INOs, and then see who gets their candidate in later. Basically a chance of an own hard-liner for a risk of the other side's.
On defining the state senate:
Speaking as advocatus diaboli, I don't think any state ever really wanted different qualifications for state and federal electors, so the argument that it wasn't exploited isn't that strong.
But at the end of the day I think there is no way easy way to exploit-proof this. How about just giving up and retreating to "a popularly elected branch of the state's legislature, and if there is more than one such branch the most senatorial one, which may be authoritatively identified by state law".
Your last attempt ("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. ") also has issues:
You may view this as a feature, but this bans direct democracy like e.g. the Californian initiative system. (Yes, I know it's my formulation, I wasn't trying to write evil-djinn-proof.) Also not really what you want, because a state might actually want to make its reflective chamber overridable like most European countries do.
I suppose I might as well comment on the responses to my points. As is often it seems I come in rather late compared to everyone else.
I feel a bit bad that you spent so much time critiquing the idea I gave of proportional representation for the Senate, because the specific thing I suggested was a kind of random idea I had, mostly to show how someone could look at other countries to get ideas. I think it did have some promise, but it was meant to be more of an example than necessarily a strong suggestion. I perhaps should have made that more clear. So I won’t be getting into too much of an argument on your points there, but I wanted to respond to this part:
“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.”
I have looked at the linked article, and I am very uncertain of its claims. It talks over and over about how third parties are legally unable to do things, like when it says:
“Maybe the Socialism Party wants to select candidates at its annual convention after a rich and edifying political debate. Too bad, that’s illegal. The state doesn’t care for these smoke-filled room candidate selection processes, it got rid of them back in the Progressive Era. Candidates will be selected inside a state-sponsored ballot box by individual voters.”
But… third parties do this. Various third parties run candidates without public primaries. Granted, I’m speaking only of my own state, so maybe it’s more of an issue in other states. But what it insists is illegal is exactly what I do see third parties do. Heck, a comment on that linked post (the comment by hash872) asserts this, saying that the claims in the article seem “wildly wrong” and gives various examples of parties doing exactly what the linked article claims they are not able to do. If the claims of hash872 are correct--and they seem to be--political parties do appear to have more control over candidates than the article you linked seems to think. However, even if we were to suppose everything it claimed was correct, there’s a larger problem with the argument. The argument is “well, this method of proportional representation for Senators won’t work right, because due to various laws, parties don’t really have control over who they nominate, so they can’t do it.” But… the whole reason we have the current primary system is precisely because we don’t have proportional representation. It would not exist, and inherently could not exist in proportional representation. Saying it wouldn’t work under current rules is like if someone were to dismiss your electing-the-President-by-governors idea on the grounds that it doesn’t work with the laws states have about primaries! The rules making this political party “illegal” would be mooted by the new method of election anyway.
At any rate, the main point I was trying to raise, which I think remains valid, was the question of why you don’t look more at other countries and how they do it. Because an issue with your analysis—and this is actually something, upon reflection, occurs frequently in these amendment series—is that it’s so strongly focused on US history of government with barely a look at other countries outside of sometimes talking about the UK. It makes perfect sense to focus primarily on US history given that’s the country the adjustments are designed for, but I can’t help but think that there isn’t a whole lot of value in looking at what other countries have done in the last 200+ years for inspiration in seeing what worked and what didn’t work.
So, when you say:
“To my knowledge, 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.”
But that just brings up the question: SHOULD we be doing that? Should we be rigidly trying to recreate their ideas via untested voting systems, or looking at the other voting systems people have tried and seeing if they might have real merit?
But here is the thing. Even if we are married to the idea of the Senate being chosen by state legislatures or state governments… other countries have done that. Some STILL do it. It looks to me like Germany, Austria, Belgium, India, and South Africa all have their upper house chosen by state governments, and there are probably others too. That means that unlike the Senate in the United States, apparently people are satisfied enough with the representative chosen by governments that, unlike the United States, it hasn’t been changed to be popular elections. Why does it work there, or at least work well enough that people haven’t thrown it out like they did in the United States? (maybe it works poorly, but it at least works well enough it’s still in place) There’s probably varied explanations based on countries, and no doubt another factor is what their upper house actually does could be be different than that of the US Senate—but it’s something that seems like it could merit investigation, at least for inspiration.
Granted, the fact the US Senate requires equal representation in the Senate is something some of those countries don’t have (e.g. Germany’s is more population-based), but that could be adjusted to meet US needs.
Granted, I’m not so sure how well any amendment that would shift it back to state governments over more direct votes by the people would do. Voters normally don’t like losing power, and that’s an issue with this (that I don’t think I mentioned in my prior comment, and perhaps should have been more explicit about). “Hey, voters! Want to have LESS of a say in choosing Senators?” That’s a hard pitch. That’s another reason why I have to wonder if trying to do it by state legislature is even possible to get into an amendment, and why an adjustment that keeps power in the people’s hands more directly in some way would be easier to persuade people about. The proportional representation I threw out, while just a random idea, is something that would better keep the power in the hands of the people and therefore be more attractive to them. A pitch of telling people to give up power is always a very hard one.
Still, even if we were to try to go with something by the legislatures, I do think it would be smart to look at other countries that are actually currently having a house chosen by state governments and seeing if what they are doing might work and avoid the problems that changed the Senate. I’ll admit that to some extent this is just me dumping work on you that I haven’t done (“hey, why not look into these things that I haven’t dived deep into yet!”). But it still seems to me like if one is looking for good inspiration, seeing what other people are doing and seeing how it does/doesn’t work could possibly be very useful rather than jumping to an untested idea.
One thing I wonder about is whether the proxy voting problem (voting for someone in the state legislature to indirectly vote for Senator) might be less of an issue if there were more political parties. If it's unlikely that one party will get a majority, they'd inherently have to form a coalition in order to choose a Senator, so you wouldn't have any guarantee that your vote for a particular party would end up getting a Senator of that party (it turns from "vote for the Republican and you get a Republican senator" into "vote for the Republican and you get a Senator who might be Republican or just Republican-ish" which is obviously a weaker inncentive). Then again, that might end up causing the gridlock problems seen prior to the 17th Amendment.
This last part was not directed at me, but I still want to comment:
“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!”
I guess it’s time for me to be the dissenter. I didn’t comment on the size because I didn’t think it actually really mattered that much; whether the size goes down or up isn’t of great importance to me. However, I don’t think reducing it is so important that it should mean we should be rejecting ideas that keep its size or even increase it.
The argument for reduction is the claim that with so many people, it isn’t able to “deliberate properly”. This seems a bit too abstract of a complaint to me. Honestly, the idea of it being a small deliberative chamber at this point seems to be a lost cause with how many states there are; whether 50 or 100, it’s too big to recapture whatever original hope there was back when its membership was in the 20’s. Sure, 50 could be seen as an improvement over 100 or even larger numbers, but not to such an extent that I think any ideas on how to fix the Senate should be viewed as requiring a reduction. I suppose all other things being equal I wouldn’t object to a reduction to 50, but I do not think decreasing it is of such importance that things should ever be dismissed for keeping it at the same size or even increasing it.
I am admittedly guessing here, but what I would speculate about minor parties functionally getting to nominate their own candidates without a primary process is as follows.
It's not so much a strictly legal matter as it is a confluence of law and on-the-ground reality. In (almost) every election in the US, either the Democratic candidate or the Republican candidate will win. (There are exceptions, of course.) Most people voting in primary contests, therefore, will choose to vote in one of those two, and as I understand it you typically can't vote in more than one. The people voting in a contest for a minor party, therefore, may well just be the party executive in the area in question, thus effectively giving them the power to nominate their own preferred candidate.
The true problems that arise are twofold. For one, if a third party were somehow to become popular enough to draw people to vote in their nominating contest because their candidate has a real shot at winning, the party executive loses this ability. (New York, which still allows fusion voting, where a candidate can run for multiple parties at the same time, sidesteps this by having closed primaries, at least last I heard, so in particular to vote for Presidential convention delegates in New York for one of the major parties you have to register with one or the other, which precludes voting for who appears on the lower-race ballot lines for the Working Families Party or the Conservative Party or what have you, leaving only the true diehards to decide who gets those ballot lines.) The second problem is that once a candidate is nominated, because legally they were nominated by party members and not party executives (even if the two are coterminous), the party executive can't remove them. This arose, again in New York, when Alexandria Ocasio-Cortez unexpectedly upset Joe Crowley as the Democratic nominee for his House seat, but the Working Families Party had already nominated Crowley (probably without opposition) for their line, probably as part of a working relationship they have with the Democratic Party (Crowley was in House Democratic leadership), so even though the Working Families Party verbally endorsed Ocasio-Cortez, Crowley remained their official candidate and was on the ballot.
This stands in contrast to places like the UK and Canada. In 2024 (this is brought up in the article), Labour in the UK decided that Jeremy Corbyn--former leader, still popular with part of the party base--had become too toxic to the party's brand overall (in part because of his views on Israel-Palestine and claims that he'd allowed antisemitism to fester in Labour under his leadership) and summarily removed him as the Labour candidate for Islington North (a constituency in Greater London), running another candidate in his place and campaigning against him. Corbyn chose to run as an independent regardless and won. Labour Party members in Islington North probably would've chosen Corbyn, but the national executive didn't want to be saddled with him, so to prevent what they saw as further damage to their brand they got rid of him. In 2025, the Liberals in Canada decided that Chandra Arya, three-term MP for Nepean (an Ottawa-area riding), could not be allowed to run under their party banner and summarily removed him as candidate for the riding (Arya did not stand as an independent). They never gave a reason for this (they had earlier removed him from the race for the party leadership, again without a reason) and newly elected leader Mark Carney ran and won in Nepean (which sure looks suspicious; Carney had said he would run in an Ottawa-area seat because his main professional experience in Canada, working at and then Governor of the Bank of Canada, was in Ottawa, but there were no open seats there when he made that announcement, until Arya was removed). (If I had to guess, the Liberals removed Arya because he was seen to be too close to Narendra Modi, and Canada-India relations aren't great right now, but this was never confirmed and there was no obligation on the Liberals' part to give a reason.)
That is just my guess, as I said, I haven't trawled through state electoral laws to see exactly how it all works--for instance, maybe some states have separate provisions for parties with low registration numbers--but I think the point remains valid if you're talking about a party that becomes a serious challenger to the major parties and attracts voters to its nominating contests.
As for other countries choosing their upper houses via state legislatures, that is true, but the catch is that those upper houses almost always have less power. India maybe comes closest but even then it's subject to some limitations, such as not being able to bring a no-confidence motion (a typical restriction on upper houses in bicameral Parliamentary systems anyway), and being entirely unable to originate and effectively unable to block money bills (the latter probably imported from the UK and the Parliament Act 1911), and India has a joint-sitting provision (probably imported from Australia; also Indian federalism, unlike almost any federal system aside from Canada's, assigns residual powers to the federal legislature), so a government with a majority in Lok Sabha but not Rajya Sabha can request that the two bodies sit in joint session and vote as a unicameral legislature, with the government's majority in the lower house being large enough that combined with its members in the upper house it has a majority in the combined assembly. So Rajya Sabha doesn't really fit the mould that James wants the US Senate to fill.
I do agree with you, as I brought up in my own remarks, that it is worth asking whether the Senate is still an institution worth having at all, at least in its current form (or in a form where some body other than the electorate selects its members) and with its current powers.
"The constitution of a second legislative body for the united Legislature, involves questions of very great difficulty. The present constitution of the Legislative Councils of these Provinces has always appeared to me inconsistent with sound principles, and little calculated to answer the purpose of placing the effective check which I consider necessary on the popular branch of the Legislature. The analogy which some persons have attempted to draw between the House of Lords and the Legislative Councils seems to me erroneous. The constitution of the House of Lords is consonant with the frame of English society; and as the creation of a precisely similar body in such a state of society as that of these Colonies is impossible, it has always appeared to me most unwise to attempt to supply its place by one which has no point of resemblance to it, except that of being a non-elective check on the elective branch of the Legislature. The attempt to invest a few persons, distinguished from their fellow-colonists neither by birth nor hereditary property, and often only transiently connected with the country, with such a power, seems only calculated to ensure jealousy and bad feelings in the first instance, and collision at last. ... It will be necessary, therefore, for the completion of any stable scheme of government, that Parliament should revise the constitution of the Legislative Council, and, by adopting every practicable means to give that institution such a character as would enable it, by its tranquil and safe, but effective working, to act as an useful check on the popular branch of the Legislature, prevent a repetition of those collisions which have already caused such dangerous irritation." (Anti-French bigotry omitted.)
To put it in the words of Lord Durham, is the US Senate still "consonant with the frame of [American] society?" Because even if society would shift after some electoral reform is enacted (hardly a given; society shifted in the decades after Lord Durham's report to make the Lords seem ever more anachronistic even as it retained its full powers, until passage of something like what became the Parliament Act 1911 became necessary and inevitable) it's still a major problem to find a reform that could be enacted in the society that exists now and wouldn't eventually lead to demands to give (or, in this case, return) election of Senators to the people at large.
FWIW, here is how it works in Minnesota. I know a little about this, because I served for several years in the immediate post-Trump aftermath as the Secretary of the American Solidarity Party of Minnesota.
When you first start out, you're just a non-profit organization, governed like a normal non-profit organization. You can do whatever: nominate people as you please, eject them as you please, as long as it's done according to the organization's constitution and by-laws. The State of Minnesota doesn't care because, as far as the State of Minnesota is concerned, you don't even count as a political party!
The first goal is to achieve the status of "minor political party" (statewide). This is vital, because it gives you access to Minnesota's public campaign finance system (an income tax checkoff and a program called the PCR, where every citizen can give $50 to the program once a year, optionally designated for a specific party, and get a full refund of the money on income tax). Achieving minor party status requires winning 1% of the popular vote statewide or collecting an equivalent number of signatures. However, you still exercise no actual power, and you still can only get on the ballot the same way an independent candidate must: by gathering signatures for a petition, for every office, for every election.
The holy grail, of course, is guaranteed ballot access. This is secured by achieving "major political party" status. Obviously, the MNGOP and MNDFL both have this status, but we occasionally see other interlopers: Jesse Ventura's iteration of the Reform Party had it for a while, and the Legalize Marijuana Now! party had it for a few years. (I think they've since lost it.) "Major political party" status requires a party to place 76 candidates on ballots around the state (by gathering signatures) all at one election (or to collect signatures = 5% of all votes statewide). Once you do that, you have party-based ballot access.
You are also boned, as far as your associational rights go.
Once you are a major political party, you *must* participate in the state's *open* primary election. *Anyone* can run as a candidate for your party, even if you have specifically ejected them from your party. They do not have to gather signatures! They just have to have participated in your last precinct caucus! Your actual nominee, endorsed by the convention, will not even receive a special marking to show that she has the endorsement! Moreover, *anyone* can vote for those candidates, even if they are not members of your party (although they can only vote in one primary).
Oh, speaking of precinct caucuses: you have to have them now. Party officials must be elected by those caucuses. The caucuses must have ultimate control over the party. The caucuses must elect the delegates to the state convention which controls party rules. These caucuses are open to anyone, although participants are at least supposed to affirm their support for the party's principles.
You do not get the option to just not become a major political party. Once you have enough candidates, you legally hold the status, and all these requirements begin to attach.
So, no, I read your article and agreed with it completely. There's definitely culture involved here, too, but the law, by itself, destroys the ability of political parties to simultaneously wield political power *while also* regulating their own membership. To hold political power, at least in Minnesota, your party must sacrifice the level of control over the nominating process that it would need to manage list-based proportional representation. Of course, we could change that! But it would require a wholesale reorganization of America's political parties and sweeping changes to party powers and elections in most of the 50 states. That is thornier, in my view, than simply reorganizing the Senate.
@Tarb mentions a comment by a hash872 on the original article (https://jwmason.org/slackwire/political-parties-are-illegal-in-the-united-states/ ) where hash872 made some claims against the article's claim. It is true that some states allow some limited space for parties to operate. The Virginia GOP was able to nominate a governor by convention *in lieu of* a primary, although I'll bet $10 that the convention still had to be made of delegates ultimately tracing their authority back to an open caucus. Utah only goes to a primary if a convention fails to endorse. These are, however, exceptions, not the rule. Many states close primaries, but none restrict them to dues-payers only (and party registration is not a high obstacle).
I think you could have list-based PR in a system like that used in most states while still falling within the spirit of Progressive Era reforms.
(For all that its democratic reforms have been, well, not great, the Progressive Era had an important insight: that for the average voter, a legislative body has more legitimacy to participate in the lawmaking process the greater and more direct the popular input into its composition is. Perhaps you think this is a flaw in human psychology and agree with Lord Durham's view that it is good to have an "effective check ... on the popular branch of the Legislature" but it is nonetheless one that any reformer must grapple with.)
The catch is that it couldn't be party executives choosing the lists unilaterally; it would have to be, probably, a party convention (chosen by a caucus process, likely).
In fact, for the system I think we're both thinking of, James, you'd still need such a process, though only as a fallback in case one party gets an outright majority of the qualifying party vote (which does happen from time to time; see 2020 New Zealand for a recent example).
Of course, this will put a lot of populist energy into picking said lists and you will probably end up, after the usual suspects, getting a lot of candidates from the "traditional buckets of populism". (Apparently Italian parties will often put celebrities and the like low on their lists, just to fill them out. I'm not sure if the person even has to consent to being placed there.)
On the final point, it just occurred to me that restricting voting in primaries to dues-payers only (even if it's the party to whom the dues are paid, and not the state) would either come very close to violating, or actually violate, the 24th Amendment.
"As for other countries choosing their upper houses via state legislatures, that is true, but the catch is that those upper houses almost always have less power. India maybe comes closest but even then it's subject to some limitations, such as not being able to bring a no-confidence motion (a typical restriction on upper houses in bicameral Parliamentary systems anyway), and being entirely unable to originate and effectively unable to block money bills (the latter probably imported from the UK and the Parliament Act 1911), and India has a joint-sitting provision (probably imported from Australia; also Indian federalism, unlike almost any federal system aside from Canada's, assigns residual powers to the federal legislature), so a government with a majority in Lok Sabha but not Rajya Sabha can request that the two bodies sit in joint session and vote as a unicameral legislature, with the government's majority in the lower house being large enough that combined with its members in the upper house it has a majority in the combined assembly. So Rajya Sabha doesn't really fit the mould that James wants the US Senate to fill."
Yes, them being less powerful is likely a factor—I alluded to this when I said “and no doubt another factor is what their upper house actually does could be be different than that of the US Senate”. For example, I was looking into the Bundesrat, Germany’s upper house (Bundestag is the lower one). Legislation has to start in the Bundestag (the Bundesrat can propose legislation to the Bundestag which can pick it up if it’s interested, though), and then goes to the Bundesrat. For bills that affect the states, called consent bills, the Bundesrat needs to pass it by majority vote. For other bills, called objection bills, if the Bunderat votes it down, the Bundestag can bypass that vote by passing it by majority a second time, unless a full 2/3 of the Bundesrat voted it down, in which case the Bundestag needs 2/3 of its members to vote for the bill. (the Bundesrat actually has a website that has English descriptions of everything, which is nice, like https://www.bundesrat.de/EN/funktionen-en/gesetzgebung-en/zust-einspr-en/zust-einspr-en-node.html#doc5157314bodyText1) This does indeed make the Bundesrat a lot less powerful than the Bundestag (I’m a little unsure how many bills count as objection and how many count as consent, though; I saw someone say it was about two thirds of them that were objection bills (which again the Bundesrat has great difficulty stopping), and ChatGPT, for whatever that’s worth, gives a similar number).
But honestly, maybe that’s a sign that the Senate should be weakened, especially given the fact it’s clearly the more powerful of the two houses (presidential appointment approval is a VERY big deal, and in return the House gets… basically nothing). A previous article in this amendments series suggested making the Originations Clause work as it was supposed to by forbidding the Senate the ability to amend money bills as a way to strengthen the House. I was skeptical of that idea for several reasons, one being that I didn’t think it actually did much to empower the House… but if it was like the Bundestag/Bundesrat and EVERYTHING had to effectively start in the House, and the Senate couldn’t give ANY amendments to ANY bills, that could make more of a difference. A further possibility would be to somehow weaken the Senate’s power to vote down bills, possibly by enacting something like the system described prior.
Of course, one tricky thing is trying to evaluate how these things work in practice, as presumably the best information on what people think would be in German, which I don’t speak. Still, in my looking up information on this specific arrangement (I went with Germany just because it was the one I was most interested in--notably, Germany is a federation like the US rather than a unitary state), it has given me a number of more things to think about.
The thing is, James also specifically said that he doesn't want a weaker Senate, so doing that also defeats the purpose of the question in the first place.
I agree with you about his Origination Clause proposal; it does very little as long as the Senate can block money bills, even if it can't amend them (or, for that matter, if the President can veto them, even if there's no line-item veto). But tweaking it to not work that way gives the House an absurd amount of leverage over the Senate and the President: they can pass a money bill which denies funding to the Senate and to the executive if they block anything else the House passes (and maybe to the judiciary if it does that).
(You might be able to finagle past this by defining "money bill" in a way that would prevent such a clause from being in there; the Parliament Act 1911 has a strict definition of money bill and requires that Opposition leaders agree that a bill meets it, and only in that case can the Commons demand that the Lords pass the bill without amendment within one month.)
The fix, really, is to give the House co-equal power over appointments, as they have with the Vice President, because it seems to me like any fix to money bills is either too weak or too strong, within the context of the US system.
(Costa Rica has a unicameral legislature in a Presidential system; of note is that the President cannot veto the budget, but the legislature cannot block executive-branch appointments. I'm not entirely sure how judicial appointments work there, and I'm not sure what legal mechanisms, if any, exist to stop the legislature from telling the President he can't turn the lights on at the Casa Presidencial if he vetoes anything.)
"The thing is, James also specifically said that he doesn't want a weaker Senate, so doing that also defeats the purpose of the question in the first place."
I dunno. I'm not sure of everything I said or where I said it, but, right at this moment, I'm looking at this and thinking "a Senate that can't originate or amend is a very interesting idea."
The House really should be primus inter pares, and it may well be that strengthening the Origination Clause on money bills doesn't go far enough.
"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."
The Lords, back then, had an absolute veto and significant powers of amendment and origination. Just about the only powers they didn't enjoy were the origination of money bills (or substantial amendments thereto) and voting no confidence in the government. But the Lords was (and I will keep quoting Lord Durham*) "consonant with the frame of English society" of the time. And maybe the US Senate, at the time, similarly reflected American society. (The somewhat macabre joke I heard about this: An American exchange student in Europe was asked why Americans call themselves that when there are so many other countries in the Americas. She asked what else they should call themselves, and the questioner suggested state demonyms. She noted that they used to do that, and then they had a big civil war.)
You're right that a Senate that can only vote yea or nay on bills proposed by the House might be better, but there would still be resentment if the Senate perpetually blocks legislation that the House keeps sending to it. (I bring this up further in a comment I made on someone else's article that I linked in my longer comments here, but the Senate of Canada has a sense of its role in the modern balance: study and debate, and provide sober second thought, not beholden to the vicissitudes of electoral democracy, but ultimately do not block if the Commons makes itself clear on a question.) The House should perhaps be primus inter pares, but there is a very careful balance to be struck between that and the House being able to bulldoze everyone else, and I'm not entirely sure if that balance can be struck within the constraints and confines of a Presidential system. (Whereas mechanisms like confidence and the monarchical/Presidential recommendation, or financial veto, or similar that may exist elsewhere but that I haven't run across for want of having looked, seem to me to serve that purpose in Parliamentary systems, of making the popular branch the primary body while still leaving space for other organs to tap the brakes and prompt it to take another look at its more ill-considered ideas.)
There were some other interesting differences with the Senate and Bundesrat I didn't note, and maybe should have (I was just talking about power/duties). I meant to edit my post, but by the time I wanted to, I already had replied! Anyway...
-There are no fixed terms; members just serve at the pleasure of the state governments, who can replace them at any time (times of replacing them would normally be if there's a shift in the parties in charge of the state government). This seems to have various advantages, though it does mean it can change very abruptly, unlike the Senate where only 1/3 can change in an election cycle.
-Members of the Bundesrat are all members of the state governments and serve simultaneously in the Bundesrat and state government. This actually seems a decent idea, as it provides a stronger link between the state government and the upper house. This would have been unthinkable for the writers of the Constitution given the issue of travel and communication times, so they had to have a separate Senator not part of the state legislature, but by the late 1940's when the German constitution was made, this sort of setup was actually possible given faster communication and travel times, plus the fact Germany is a lot smaller than the US was even at US's founding. And of course nowadays there's no real travel or communications obstacle for members of congress, which is why the Recess Appointments Clause is a total anachronism at this point, as Justice Scalia observed.
-Bundesrat members from a particular state have to vote unanimously (if they don't, their votes get ignored).
The one thing I'm having difficulty figuring out is the exact mechanism for choosing the Bundesrat members. Websites about how it works like Wikipedia or the Bundestag site itself seem to only ambiguously say that they're "appointed" by state governments without clearer specifications (see for example https://www.bundesrat.de/EN/organisation-en/stimmenverteilung-en/stimmenverteilung-en-inhalt.html).
Keep in mind that Germany uses a variant of responsible government in a parliamentary republic.
(The chief difference between its form and that in the UK, aside from the monarchical aspect, is that no-confidence votes are not generally allowed, except when the government is moving confidence in itself, usually to lose deliberately and trigger an election, or when a different governing coalition is moving no confidence and will replace the current coalition upon passage of the motion, known as a constructive vote of no confidence. This is to avoid the instability seen in the Weimar Republic, where it proved far easier to find a majority against the current government than it was to find a governing majority.)
The method of selection of Bundesrat members is somewhat beside the point; since they must vote as a bloc anyway, it doesn't really matter which particular people are chosen, but typically they are part of the state Cabinet and are chosen by that body, likely as part of coalition negotiations (except in those rare cases when no coalition is necessary). It's even less relevant since I think they can be changed at any time, even without the governing coalition changing.
The Bundesrat's composition does shift somewhat abruptly, but it shifts whenever a state holds an election (and the election produces a new governing coalition). It's more that its composition shifts more often but less strongly (since at any one time at most six members, from any one of the most populous states, can change, unless there's coincident elections and/or delays in coalition formation).
It's interesting to consider the Bundesrat (and other such upper houses) but it is very much rooted in a German form of responsible government. It exists to protect the interests of the states, but it does so by giving state executives, chosen by state legislatures, direct representation which changes whenever the state executive changes. A similar method of selection wouldn't make nearly as much sense in the US, where the state legislature and state executive can be controlled by different ideological factions (eg Vermont, Kansas, Kentucky). But this goes into the argument I regularly make for the superiority of systems of responsible government, to which now I will only remark that when the US had significant input into a country's constitution (rather than just being a source of inspiration for its writers), it chose models of responsible government (West Germany, Japan, Iraq), that Linz's "The Perils of Presidentialism" contains points which remain valid today, and this observation from Tony Benn, found at https://yougov.co.uk/politics/articles/8865-tony-benns-finest-speech:
"Our ancient pageantry is but a cloak covering the most flexible and adaptable system of Government ever devised by man. It has been copied all over the world just because it is such a supreme instrument of peaceful change."
EDIT: Also, looking at other countries' implementations of federalism and upper houses right now is technically an exercise in futility, since the current official position of the US government is that no other country is actually federal. (Source: https://www.cbc.ca/news/politics/us-ambassador-trade-9.6985050 re whether Canada as a whole is responsible for an ad run by the Government of Ontario, "I'm sorry, we don't go through that slicing and dicing.")
(Yes, I'm Canadian. Yes, I'm beyond livid that the current President has said "51st state", and I'm even further beyond livid that Americans don't take it seriously, and even more beyond that that the current ambassador is nothing but a crude gaslighter, and I think we should kick him out--he'd be less insulting if he threatened to drop a nuke on Ottawa. And I will never, ever trust the US again without a Dayton Agreement arrangement.)
- As Daniel Pareja already pointed out, "the government" in this context has a narrower meaning then just everybody in power, it's somewhat similar to what Americans would call the cabinet but responsible to and recallable by a parliament.
- The state government appointing members to the Bundesrat is just a resolution that says these particular people are hereby appointed to the Bundesrat. The precise names don't matter much because in practice that resolution will go on appointing all other members of the state government as deputy members of the Bundesrat and the rights of members and deputiy members are exactly identical.
- At least the plenary session of the Bundesrat is very much not designed to be particularly deliberative. They meet once every three or four weeks for a few hours. The last session had 82 agenda items and took four hours, so on average less than 3 minutes per decision. There are a few speeches but applause is frowned upon (used to be forbidden) and there are no questions, back- and forth interactions etc.
- State governments decide their votes in their home states before sending anyone to Berlin and also agree on one person to raise his or her hand to cast all of the state's votes. There is no quorum and typically a state will have less people present than it has votes. In theory the president of the Bundesrat knows how many votes each state has and does the arithmethic in half a second before announcing the majority. In practice that works because the votes are known in advance.
- Allegedly the comittees do have more open-ended discussions on practicalities of execution because they have the beurocrats who actually will be implementing the law. (In Germany most federal legislation is executed by the states.) At least that's what is said, but I wouldn't really know since the comittees don't meet in public.
- A majority in the Bundesrat is defined as a majority of the total number of possible votes, so an abstention has exactly the same effect as a vote against whatever the motion is. Most states have coalition governments and most coalition agreements specify the state will abstain if the coalition parties can't agree a joint position. Functionally this is very similar to a super-majority requirement perhaps also slightly similar to the filibuster in the US Senate. Then it depends on the bill; some bills require assent of the Bundesrat, so a defeat of the motion is defeat of the bill and other bills pass if the Bundesrat doesn't object so a defeat of the motion effectively passes the bill.
- Most of the things Americans would do by regualtion or executive order are done by "Rechtsverordnung" in Germany; see Art. 80 of the basic law (https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0420) for the procedure. Most federal Rechtsverordnungen need affirmative assent of the Bundesrat and one might argue if this is more or less important than its role in primary legislation. This kind of executive intertwining makes sense in Germany's weird version of federalism where most questions are legislated federally but then executed by the states, so Rechtsverordnungen often are the federation telling the states details about how to do their jobs.
- Very occasionally there is a question where the conflict line is the states vs. the federation (usually about money) but of course most of the time the state level parties agree with their federal collegues and that plus the state-level coalition agreements is where Bundesrat votes come from. So most of the time it is party politics plus a functional supermajority requirement.
- I think the functional super-majority requirement even for quasi-legislative executive decisions probably does play a role in German politics being more consensus orientated than American politics. But that doesn't come from wise statesmen deliberating under parliamentary procedure, it comes from anything big needing some opposition buy-in and backroom deals before the official debate starts. Also German wonks hate that functional super-majority requirement and perennial reform proposals for making the Bundesrat less obstructive are probably the cultural equivalent of American proposals to get rid of the electoral college. I like the obstructionism but I'm a weirdo.
- State level elections in Germany are to a large part determined by the federal-level political mood, and how the election result affects the Bundesrat is often the big news item after a state level election. It doesn't help that the exact distribution of power between the EU, the federation, and the states can't be explained in a typical attention span so even very educated German voters typically have no clue who is responsible for what. But also the most controversial questions do tend to be federal so treating the state-level vote as a Bundesrat election is somewhat rational in the short term.
It seems to me laws mandating party primaries would be unconstitutional under the First Amendment, and there is a significant chance they would be held ineffective by courts. Here is a similar, but slightly different case, that I haven't completely read, so it is possible that the court says primaries are fine and completely great somewhere: https://supreme.justia.com/cases/federal/us/530/567/
It is also my understanding that in a lot of states, the party actually has to elect to use the state primary apparatus.
Anyway: 1) there hasn't been a King of England for several centuries :)
2) there is a play (and a filmed BBC version I think) where Charles III vetoes a law and dissolves Parliament. Ultimately, he is forced to abdicate by protests (and the opposition leader is an asshole, first advises the King to veto the law, but then sides against him). https://en.wikipedia.org/wiki/King_Charles_III_(play)
I (as a Croatian with no UK connections :)am also very interested what powers and possibilities a UK monarch going against the Government would have, since idk how courts would view the various advice conventions, and it could (on my uninformed reading of some laws) also devolve into nonsense like the government hiding seals from the monarch. But, it seems to me the various issues like raising taxes wouldn't be an issue in modern times, as the Civil Contingencies Act lets the monarch (and senior ministers, but the monarch-in-council is the ordinary preferred method, and woild presumably have precedence over contrary ministerial regulations) do basically whatever that can be done by prerogative or statute, including presumably raising money, except some exceptions like violating the Human Rights Act.
I am also unsure of how the Privy Council functions, lots of things are done on its advice (but not consent, that is only in the enacting clauses od statutes), but the quorum is low and AFAIK a monarch could easily hear advice from people he already agrees with (in addition to adding and removing privy counsellors). It is unclear whether it would be better to do things with or without advice, as there is a chance courts would declare the advice justiciable, so maybe ignoring advice whenever possible is actually preferable. I guess if it were to actually happen, the best litigating position would be to hear advice from who agree with the monarch, but also specifically declare he would have done it anyway.
I hope you are interested in my thoughts on the authority of British monarchs.
The point you bring up about the monarch being forced to abdicate is in fact the very thing that keeps the monarch from using much of the authority that he does legally possess. Popular revolt is the primary check on the power of the monarch.
The term "monarch-in-council" is just a fancy way of saying "the Cabinet", that is, the council of the monarch's advisors, whom the monarch, on paper, selects, but whom the House of Commons can fire (through a vote of no confidence). The Cabinet, meanwhile, is just those members of the Privy Council who are actively heading ministries (with the occasional exception for ministers without portfolio). Privy Council appointment is lifetime, but the prerogatives of a Privy Councillor not in government are generally very limited. (For instance, many government documents which require Privy Council membership to view also require a security clearance, and Privy Councillors not in government have no decision-making authority in executive matters.)
Since they already overruled a royal proclamation based on illegal advice, I'm pretty sure if it became practically relevant the UK supreme court would also overrule a royal proclamation made without any advice. The principle of courts overruling the actions of the king is already established. So if Charles just dissolves Parliament without advice that would just be held to legally not have happened. If he refused royal assent to a law that would be harder because that is an inaction so there is just no instrument to quash. But ultimately they have been clear that the modern democratic substance wins over the traditional form whenever they conflict so they would find some theory to make the law stand. I think the decision on Johnson's pretend prorogation (https://www.supremecourt.uk/cases/uksc-2019-0192) is really worth reading for the dicta, it's making it very clear and occasionally borderline explicit that the ceremonial constitution is not the actual constitution.
But the ruling is technically based on the advice being justiciable, that is my point that it may or may not be better to act without advice
Yes, but only because they go by the actual substance and the actual substance is that the prime minister made the decision. But as I said read it for the principle approach more than the specific application, and the principle approach is that the substantial modern constitution trumps the ceremonial one as soon as they clash in practice. Also the hypo of no advice gets near explicit for example here: "50. For the purposes of the present case, therefore, the relevant limit upon the power to prorogue can be expressed in this way: that a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing,[...]"
You're first quote of me omitted Rule 1, which was what we are actually talking about. You might have meant to include that one instead of Rule 2.
"
Rule 1:
No person who has previously been a member of any house in the state legislature, or the Governor or lt. Governor in the State executive branch, or been a member of the US Federal House of Representatives, or held any other office which is normally determined by means of a statewide election, or who has been President or Vice President of the United States, may ever be a US federal senator under any circumstances, ever.
"
"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."
To be clear, you don't actually have to have a special rule about minority-party legislators being required to stick to their votes.
Take say the recent vote to invoke cloture on the shutdown crisis: The voting was held open for about two hours while waiting on the last four hours, all stout republicans: 3 members of leadership plus Cornyn.
All you have to do is make certain that the person presiding over the vote is also the last person to vote, or closely coordinates with the last person to vote. Then, he holds the vote open as long as he wants, and close it anytime he wants by simply choosing when the final vote is cast.
Hold it open for a few hours so everyone goes back to their offices, then give a secret signal, all the members of the majority party rush in to change their votes, and then bam, voting closed. A few minority members might react in time to change their votes too, but not enough to matter.
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
No, that would (basically) work, I think!
One of my first ideas was that, instead of a fallback election, you just put the names of every state senator in a hat and draw one. Yippee!
I like yours better, because it allows more open nominations. However, you'd have to cap nominations in some way, because, if you don't, both parties would just nominate millions of people ad infinitum to increase their odds. And you'd have to cap nominations without giving the majority control of who gets nominated. However, there are ways of doing this!
Have each senator get one nominee only. I thought there was some limit on legislators proposing a nominee in the original proposal, but if there wasn't just do that.
All right, various notes.
First, I brought up the example of the Senate of Spain as a larger body--but not as a proportional body! The Senate of Spain is, in fact, extremely malapportioned! As I noted, each province of mainland Spain gets four Senators, directly elected, regardless of population, for 188 Senators. (And then there are twenty from places not in mainland continental Europe, apportioned differently.) Then each autonomous community receives Senators depending on its population, those being elected legislatively. This results in, as I said, the autonomous community of Castile and León having about three times as many Senators as Madrid, despite having about a third of Madrid's population.
The result of this entire process is that in the most recent election to the Senate of Spain, in 2023, the two major parties in Spain, the Partido Popular and the Partido Socialista Obrero Español, received very similar vote totals (23.5 million to 22 million) but the former elected 120 Senators to the latter's 60 (plus 12 from an associated party in Catalonia), out of the 208 elected. When the legislatively elected Senators are added to this total, the Partido Popular holds an outright majority in the body.
The insight of the Spanish Senate is twofold. For one, it is a model which blends direct and legislative election, though it does so simply by having a whole lot of Senators. For another, having as it does less democratic legitimacy than the Congress of Deputies, it has less legislative authority than that body. I think this is the key insight: the further removed from democratic legitimacy a legislative body is, the less legislative authority the People will tolerate it having. (Maybe at one time this was not true, but I think it is now.)
Another view on this comes from Earl Durham's report on British North America in 1839 (following rebellions in Upper and Lower Canada in 1837 and 1838; see https://en.wikisource.org/wiki/Report_on_the_Affairs_of_British_North_America ):
"The constitution of a second legislative body for the united Legislature, involves questions of very great difficulty. The present constitution of the Legislative Councils of these Provinces has always appeared to me inconsistent with sound principles, and little calculated to answer the purpose of placing the effective check which I consider necessary on the popular branch of the Legislature. The analogy which some persons have attempted to draw between the House of Lords and the Legislative Councils seems to me erroneous. The constitution of the House of Lords is consonant with the frame of English society; and as the creation of a precisely similar body in such a state of society as that of these Colonies is impossible, it has always appeared to me most unwise to attempt to supply its place by one which has no point of resemblance to it, except that of being a non-elective check on the elective branch of the Legislature. The attempt to invest a few persons, distinguished from their fellow-colonists neither by birth nor hereditary property, and often only transiently connected with the country, with such a power, seems only calculated to ensure jealousy and bad feelings in the first instance, and collision at last. ... It will be necessary, therefore, for the completion of any stable scheme of government, that Parliament should revise the constitution of the Legislative Council, and, by adopting every practicable means to give that institution such a character as would enable it, by its tranquil and safe, but effective working, to act as an useful check on the popular branch of the Legislature, prevent a repetition of those collisions which have already caused such dangerous irritation." (Anti-French bigotry omitted.)
(At one time I would have just called this the Durham Report but writing for a primarily American audience I must now distinguish it from https://en.wikipedia.org/wiki/Durham_special_counsel_investigation .)
In other words, the question of "how to have a legislative body with less democratic legitimacy that can still effectively check the democratic excesses of the popularly elected body" is one that has been of "very great difficulty" for a very long time in a great many places! That is not to say that it is not worth trying to make it work, because I do think there is value in having a house of "sober second thought" (still a better analogy than a cooling saucer or nuclear reactor control rods; further thoughts at https://canadianreturnee.substack.com/p/why-canadians-should-rethink-the/comment/171542232 ), just that it is a question that has had a lot of thought put into it and arguably never really had a satisfying answer. (Including the answers of "elect it anyway", see among others Australia and many of its states, and most US states, and "just get rid of it", see among others New Zealand and every Canadian province*.) So whatever the issues with the merits of the proposal, coming up with something that is as novel as your proposal is itself a good thing.
*Prince Edward Island had one of the most interesting constructions of a bicameral legislature of which I'm aware. Originally the province was divided into 15 malapportioned constituencies (later 16 because of population growth, though it was still very malapportioned). The lower house was elected by the voters in each riding. The upper house was elected by the landowners in each riding. In 1893 these were merged into a unicameral legislature. (Yes, this means someone could have voted sixteen or seventeen times, by living in one riding but owning land in all of them.) This was changed in the 1960s to have each riding's voters elect two members, and then in the 1990s the legislature was changed to have twenty-seven single-member constituencies, with less malapportionment.
The "constitution of the [US Senate]", meanwhile, may at one time have been "consonant with the frame of [American] society", but it may no longer be so. (I would argue that it hasn't been since the Civil War, which was arguably the first example of a major social problem that federalism was supposed to allow each state to develop its own solution for, that being slavery, being decided firmly in favour of one position at the national level. The slaveholding South came to view the Senate as its final bulwark against the abolition of slavery, and the admission of California as a free state without a balancing slave state was bitterly opposed by slave-state Senators like Albert Gallatin Brown who feared the admission of more free states with votes solely from free-state Senators eventually leading to the necessary supermajorities to amend the Constitution. As I've noted to you before, though, one of California's first two Senators was pro-slavery, and the ideological balance of the Senate did not tilt against slavery until the later admission of Minnesota. That is not to say that the Reconstruction Amendments were bad, or that the Union should have allowed the Confederacy to secede, or that slavery was in any way good or worth preserving, just that the eventual solution may have had knock-on effects like eventually making the Senate no longer reflective of the nature of American society.)
To the question of mandatory voting putting moderate demagogues (as opposed to extremist demagogues) in office, I think that depends on the extent to which all of those non-voters suddenly having to go to the polls are turned off not just by extremism but also by demagoguery. Maybe all those current non-voters would just end up treating voting as a "vibe check" rather than a serious civic duty and the system would tilt even further in a populist direction. I think that's a valid concern. (I hadn't noticed it before when I pointed out Australia's voter participation rate, but Australia has a very high rate of informal votes, what we up here call spoiled ballots--you'll forgive me for not knowing what it's called in the US, with in 2025 about 5% of all eligible voters choosing to cast such a ballot for the House of Representatives and about 3% doing so for the Senate.)
As for upper houses not excessively influenced by the Progressive Era, I'm actually not sure if there are any that are truly that way any more, whether by law (eg UK House of Lords, Parliament Acts 1911 and 1949) or convention (eg Senate of Canada, UK Salisbury Convention) or construction (many others, through built-in limited powers, direct election, and so on). But, see Lord Durham above, this is in part because it's a lot easier to have an upper house that the People will accept as legitimate and useful (or at least just legitimate and useful enough not to get rid of) if it incorporates at least some of those Progressive Era principles, however ill one might think of said principles!
My suggestion of the Venetian system is somewhat tongue-in-cheek. I'm aware that it was intended in part to check quid pro quo bribery, and you're right that it might well deadlock in any legislative body that isn't heavily tilted in one partisan direction or another, and when it doesn't it probably wouldn't promote moderation. (Wyoming's Senate ain't ever returning a Democrat under any method--there's only two of them in the entire body.) And if you get unlucky in choosing any of the groups by lot, then yes, one party or the other in any close legislature will control the entire process from then on. It's more a case of "maybe there's something worth considering here" than a suggestion to adopt it outright.
On businessmen in government, I defer to Jean Chrétien's observations:
"It is not the government's purpose to make a profit the way a company does, because a company doesn't have to give a damn about the unemployed poor or provide services that are non-commercial by definition."
"I learned early that business is business and politics is politics. The proof is how few important businessmen have made good politicians. They may think that they are very smart about everything because they made millions of dollars by digging a hole in the ground and finding oil, but the talent and luck needed to become rich are not the same talent and luck needed to succeed on Parliament Hill."
(Also: "When you're a mayor and you have a problem you blame the provincial government. If you are provincial government and you have a problem you blame the federal government. We don't blame the Queen any more, so once in a while we might blame the Americans.")
"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."
This arguably goes back to a resolution of the English Parliament in 1624, which provided that membership in the House of Commons is something "that a man, after he is duly chosen, cannot relinquish." This was because duly elected MPs didn't want to serve because travelling to and from Parliament was arduous and time-consuming, over bad roads, which took them away from their local affairs, and this was made worse by the fact that members of the Commons were not compensated for their service in that body until 1911 ( https://researchbriefings.files.parliament.uk/documents/SN05075/SN05075.pdf ). So having to take time away from your local business to go debate and vote in Parliament was a real hardship. This rule stands to this day, though there are a few offices that exist solely for this purpose that require a member to resign from the Commons upon assuming them, so MPs can in effect resign their position by requesting an appointment to such an office, which is conventionally always granted.
"Once an amendment proposal picks up a partisan valence, it’s dead."
Except that one time when the one side (largely the Republicans) won a skirmish concurrent with the last few years of the Taiping Rebellion (yes, I am downplaying the US Civil War here. But go look at the body counts) and forced the other side (largely the Democrats) to agree to their amendments just to have a voice in the national government again.
But things have failed far beyond the point of fixing via a technical amendment to the method of election to the federal Senate if a shooting war is at all imminent.
"the very threat of it keeps Parliament from going too far."
I don't think this is what keeps Parliament from going too far. What keeps Parliament from going too far is the ease of repeal of any especially partisan and unpopular proposal unless a government thinks it will remain in power for a very long time, enough for those proposals to get baked into the law and society and be next to impossible to repeal without bringing down the entire structure like a Jenga tower. (And if you pass too many things that piss off the electorate, they'll turf you out at the next election.) This creates its own form of moderation, where policies might be transiently enacted by one side or the other, but can't stick unless there's broader agreement. I think Linz had something to say about the rigidity of a presidential system giving the appearance of solidity while hiding its brittleness, while the fluidity of a parliamentary system gives the appearance of chaos while hiding its robustness.
"Perhaps the best way to summarize the basic differences between presidential and parliamentary systems is to say that while parliamentarism imparts flexibility to the political process, presidentialism makes it rather rigid. Proponents of presidentialism might reply that this rigidity is an advantage, for it guards against the uncertainty and instability so characteristic of parliamentary politics. Under parliamentary government, after all, myriad actors-parties, their leaders, even rank-and-file legislators-may at any time between elections adopt basic changes, cause realignments, and, above all, make or break prime ministers. But while the need for authority and predictability would seem to favor presidentialism, there are unexpected developments-ranging from the death of the incumbent to serious errors in judgment committed under the pressure of unruly circumstances-that make presidential rule less predictable and often weaker than that of a prime minister. The latter can always seek to shore up his legitimacy and authority, either through a vote of confidence or the dissolution of parliament and the ensuing new elections. Moreover, a prime minister can be changed without necessarily creating a regime crisis."
EDIT: For a real doozy of a celebrity candidate, don't forget Herschel Walker.
A few more points, on further reflection.
First, on the question of using the royal veto, while as I said I think partisan politics is a more effective check on keeping parties from going too far, there is still an obvious way around this: cancel general elections! Especially in the UK, that could just be done through an ordinary statute, the Lords' objections overridden by the Parliament Act 1911 (and one section of that act appropriately amended), and give MPs life tenure, with the composition of the Commons changing only at by-elections upon death or resignation.
The royal veto as a reserve power exists, among other reasons, to prevent exactly this sort of breakdown in democratic governance. If such a bill were passed through Parliament, the monarch would veto it, and would be right to veto it--but even its being debated and passed would already have done so much damage to the democratic order that the veto would serve to restore that order (to some extent).
Second, on the question of those Pierre Trudeau pieces you noted I linked, those aren't a defence of the Westminster system generally, but rather a defence specifically of the Canadian form of federalism in which the provinces do not receive input into the operations of the federal Parliament. Other forms of federalism that more or less follow the responsible government model give the subnational polities (whatever they may be called) more input, in various ways.
EDIT: Third, on the point of US political parties not having the same functions as political parties in other democracies, what I think they do have a lot of control over is fundraising and aiding local campaigns monetarily. Current jurisprudence, I believe, puts few limits on that sort of thing (at least if you structure everything correctly), so the national umbrella organisations especially can throw around substantial sums of money to help candidates win key races--if the current executive likes the candidates! So those organisations end up as agglomerations of what would be anywhere from two to four or even five political parties in other countries, all fighting internally over control of the fundraising and spending apparatus. (This is my read, I'm probably wrong in some key details that invalidate this entire point.)
EDIT #2: Fourth, it occurs to me that there are some votes which are not roll-call votes but would nonetheless be more important than, say, a roll-call vote on whether to recess. What mainly comes to mind are unanimous-consent motions that are passed without objection. (That might not affect very much, it would probably just make everyone look slightly more moderate, but maybe there's some edge case I'm not thinking of, so I brought it up.)
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.
Okay, you're right that I didn't understand you! I grant you *partial* vindication, because your method really is better than I gave it credit for, and there was enough there in your comment that I *should* have figured out what you were going for based on the word "proportional" and all that implies -- but only partial, because it really wasn't very clear! Hmph! ;)
Now, I have questions for you. The truth is that, even before your comment, I thought there was promise in your general sort of approach. You have already been thanked in a footnote in the draft of Part IV, and I may have to make it more profuse if I steal more from you. And, yes, I think you are correct that the thing you are aiming at is "the good and hard version" of what I wanted DW-NOMINATE to do.
Question 1: This is using a Hare quota rather than a Droop quota, yes? This threw me off.
Question 2: What if someone abstains or spoils their (secret) ballot? There's several approaches to this, but I want to know which one you have in mind.
Question 3: At a high theoretical level (not sure how much you have to say about this but I welcome it), does this (as a Hare method) inherit all the usual weirdness of Hare methods? Center squeezes and tactical votes based on later-no-harm manipulation and clone non-immunity and so forth? Or does the fact that so many people DON'T get elected somehow cure this? I haven't thought it through thoroughly but am trying to, and welcome your thoughts.
Question 4: Does this beat Coombs' method? (I don't think it *reduces* to Coombs' method, but sometimes it takes me a few days to work such things out, because my brain moves slow.)
On Q1)
Rightly noticed by you and wrongly done by me!
Honestly I only decided to do fractional transfers half-way through designing the example and then got translation of the quotas wrong. The point of the Droop quota is really to make the quota as small as possible without electing too many candidates, because then we get more surplus transfers and surplus transfers are the good part (because see answer to question 3). Translated to a fractional quota that means the moral equivalent of the Droop quota is #votes/(#seats + 1) + epsilon and rounding that up to an integer gives the usual formula. So in my example the quota should not have been 1.1... but rather something like 1.00000000000000001. This would not make a difference in my example but one could construct examples where it would.
On Q2)
Hmm. The mathematically best and therefore most nerd-satisfying answer is Meek's method (https://en.wikipedia.org/wiki/Counting_single_transferable_votes#Meek). On the other hand that is not that much less complicated than DW-NOMINATE. Later no harm means doing this on purpose can only hurt their own side and these are highly sophisticated voters (by advice if not their own understanding) so I think I would do the simplest thing and let them suffer the consequences: Count the vote for nobody and leave the quota as if the vote had been valid.
On Q3)
Generally the sunshine and rainbows part of STV is surplus transfers. There one quota gets one seat, voters are not bound by party proposals, and all the voting paradoxes don't strike yet. Then eliminations are the kludge to clean up the fractional rests, there is really no clean way to do that, and that's where the paradoxes and strategies sneak back in. The single-member case is worst, because then there are no surplus transfers at all and only eliminations.
The limit of all the system's perversions is really that every uniform group of voters always at least gets their fair share rounded down. There are conceivable situations where shenenigans might cost a group more than one seat but only if that loss comes out of gains they would otherwise have made from the rounded-down part of other people's fair share.
In the situation we are talking about here and a house where the honest division is two parties, that means the worst case is that one party might steal one strike from the other, thus electing a second least hated candidate to the federal senate. This would be annoying but not fatal to the overal system.
Even more generally, there is no such thing as a good voting system. According to https://en.wikipedia.org/wiki/Gibbard%27s_theorem , whatever system you end up designing will, by mathematical necessity, also be susceptiple to strategic shenenigans, which ultimately will stem from underlying perversions unavoidable because of https://en.wikipedia.org/wiki/Arrow%27s_impossibility_theorem . All voting systems are therefore trade-offs of which perversions one is least unwilling to live with. In multi-member situations I'm pretty confident STV is the best anyone came up with so far. In the degenerate single-member case of IRV the situation is more ambiguous but even there I think Internet voting nerds tend to get carried away with one side of the trade-off. Approval, for example, is much inferior but often proposed as a supposedly better alternative.
On Q4)
Yes. Coombs' method is a single-winner method. It doesn't give you what I talked about in ad 3.
All that said, I think doing it with STV is not really what you are looking for. I originally said it could be done with proportional representation and also STV is the best way to do proportional representation, but on second thought I don't think that means STV is the best way to do what you are looking for. For one, it is hard to explain and would therefore give you the same problems as the first attempt. For two, the big advantage over party-list systems is less pertinant in a situation of a small body of highly sophisticated voters. For three, there is a lot of information that can be hidden in rankings that don't really matter and this can be abused to de-anonymize a vote. That last disadvantage is of course shared with all ranking systems.
Ultimately I think my schmuck method from the previous comment gains much more in understandability than it looses in theoretical elegance.
If you want it less good and hard (i.e. still have a final vote among more than 1 candidate) then it is still simpler to give the strikes to ad-hoc alliances of members. Those would typically but not requiredly be the parties. Determine the total number of strikes and distribute them among the alliances according to a proportional algorithm to be prescribed by statute. The statute should say https://en.wikipedia.org/wiki/Sainte-Lagu%C3%AB_method , but that is probably already too complicated given that the algorithm for apportioning representatives to the states also isn't constitutionalized. (I briefly thought you could require using the same algorithm, but you really don't want to guarantee a minimum of one strike to each alliance or else there will only be single-member alliances.)
Hmm… if the idea is that DW-NOMINATE and the subsequent election is meant to be a painful threat and backstop to avoid deadlocks, couldn’t we keep the regular election at first, and use the threat of a secluded conclave (where they’re not allowed to leave until they choose) as the backstop?
This way (it seems) most of the costs of the conclave process are avoided because state senators would much rather come to a compromise while they’re still free and home, especially since they’ll be forced to make the exact same kind of compromise eventually, but behind gates and potentially far from home in DC (e.g. if the safe harbor provision is used, or maybe DC is simply required for the backstop).
Could you make Gilbert's suggestion of replacing DW-NOMINATE with an exclusion vote work by having multiple rounds of exclusion voting, and in each round each party of the state senate gets to exclude someone until you're left with the required number of nominees? If you don't like mentioning parties in the amendment, you can phrase it as a vote where the two candidates with the most votes in that round get eliminated.
If one party has a two thirds majority then you're not likely to get to the fall-back method anyway.
Perhaps there's a way to game this … I haven't thought of one though.
Gilbert himself has re-explained his proposal in this comment section, and it makes more sense (at least to me) now. I think you're thinking along similar lines as he.
"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."
I'm always saying this, but it's true here in a very literal sene: nearly 100% of our political problems in America today are because we don't love our neighbor.
Yes, to some extent this is just human nature, which is why the Constitution is designed so fiendishly to distribute power. ("If men were angels," as that wonderful Madison quote begins.) But things have gotten really bad recently because (if I may be so bold) we have become a worse, less virtuous people.
Yes, exactly!
Reading this I have come up with a different proposal:
The entire state legislature elected both senators at the same time. Each member gets one vote. Top two vote getters win. No person currently in the legislature, nor currently holding any other state elected office is eligible.
Maybe it's a single transferrable vote, maybe not. Maybe it's just the state Senate, maybe it's the entire legislature in joint session. One legislator, one vote in a joint session.
If one senator dies or resigns, either both are removed, or the governor appoints a replacement who is ineligible to be elected at the next regular Senate election.
Doesn't this just run into the same problem of state legislative elections becoming proxy elections for the federal Senate, which was why states like Oregon had long since moved to "plebiscites" for Senators with the legislature duly "electing" the popular choice?
By electing both senators at once, the legislative *primaries* become proxy primaries for the Senate race. You probably get one senator of each party unless one party splits, or one party has 2/3s of the seats.
Oh, right, I had a brain fart and didn't notice that it's one vote for two positions; I'm used to having as many votes as there are positions when there are multiple positions to be filled at once. (Though in elections for the House of Councillors in Japan, some prefectures have multiple members and those are elected via single non-transferable vote, which is what this system is called.)
At any rate, I feel this still doesn't solve the issue James really wants: wise, well-informed, moderate Senators who can bring the Senate back to the more genteel traditions it started with. I think it still risks ending up with a whole bunch of Ragey McRageFaces, just chosen by the legislature instead of the voters at large, though whether they're from different parties or the same party depends on whether there's a two-thirds majority and the party with it can properly coordinate a split. If both sides know they're going to get one Senator, why wouldn't they just all vote for whoever's going to be the most reliable partisan?
Drifting into another topic, "having was many votes as there are positions" is the fatal flaw of basically any multi-member district voting arrangement.
I'd like to see a system where every legislative district elects three (or more) members at the same time, but everyone gets only one vote. This can, but doesn't have to, be single transferrable vote.
The big parties can set up primary rules that produce fewer than 3 candidates, but it has to be an algorithmic rule. The small parties can do that or just tell the ROV who their candidate(s) are.
This would be good in the House. One advantage of a much-expanded House is that you could do this more easily, without exaggerating the size of districts too extraordinarily.
Two-step process - make every existing district a three-seat district until the next reapportionment, then create 1300 three-seat districts, each with about 90,000 constituents.
I know the issues with the arrangement; we use it for municipal elections in my city since everyone is elected at-large (I think every municipality in my province does). Whenever a ward system gets proposed it's rejected on the basis of wanting to stop NIMBYism.
As I said, in some House of Councillors prefectures in Japan, they use the system you propose, and until reforms in the 1980s the nationwide constituency elected 50 councillors via single non-transferable vote at each election. (After the reforms that constituency switched to proportional representation, using what's known as "mixed-member majoritarian" where the proportional constituency allocates seats only on the basis of its own result without taking into account the results in the local districts, tending to lead to a majoritarian outcome.)
The main problem with such a system, and it's also seen to an extent in Ireland which uses single transferable vote in multi-member constituencies, is that it forces political parties to guess in advance how many seats they might realistically win, because if you nominate too many candidates then you'll split the vote between them and elect fewer than your support might have given you otherwise (this would happen to the Liberal Democratic Party in Japan in the nationwide constituency before the reforms; I do not know if the LDP pushed those reforms through precisely because of this problem) but if you nominate too few then your representation in the legislature won't reflect the level of your popular support (this happened to Sinn Féin in the 2020 Irish election, where they could well have won 70 or more seats had they run as many candidates as Fianna Fáil and Fine Gael).
Spain uses a similar system for elections to its Senate; in provinces in mainland Spain, voters have three votes for four positions, typically leading to the most popular party in the province electing three Senators and the second-most-popular electing one. Looking at the most recent election to Senate, of the forty-seven provinces of mainland Spain, only four did not follow this 3-1 pattern in their results. (Mexico takes this a step further and just has voters vote for parties for the Senate, with the most popular party in each state electing both its nominated senatorial candidates and the second-most-popular choosing one of its two to serve.)
How candidates are nominated is another matter altogether; as noted in the article I linked to James and he linked in this piece, the current system in the US largely dates to the Progressive Era, which doesn't exactly have a great track record when it comes to its democratic reforms.
I liked the original DW-NOMINATE idea, but reading this response to critics I had an idea that potentially deals with many of the issues people have had while still limiting the pool of candidates to be close to the median.
The core of my proposal is to use the old "I cut, you choose" logic. Rather than using an algorithm to determine the nominees in round 2, we just let the minority party pick. However, they must nominate according to some kind of proportionality rule that requires that they nominate some minimum number of majority party members according to how big of a majority they have. Fill in the details of what that proportionality rule looks like depending on how many candidates you want for the vote and at what point you want it to be impossible for anyone but majority party candidates to be in the running. As an overly simplistic example, maybe you have to nominate 10 candidates and the percentage a party has in the chamber determines how many candidates must come from among their members (so a 60-40 state senate would require the minority party to nominate at least 6 majority party members). Then, the whole state senate votes on the slate of nominees using your favorite voting method.
The minority party has an incentive to choose the most palatable members from the majority party *and* the members of their party who they expect to be the most palatable to the majority party (since they need support from some percent of the majority party to have any chance at getting one of their own elected). Thus, a slate of the most mutually-agreeable candidates weighted by the size of each party. No complex algos, no ability to game the selection process with weird parliamentary procedures or long term vote moderating strategies, no deadlocks from supermajority rules. We also can ditch the rules that limit it to members who have done a certain number of votes if votes in the state senate isn't an intrinsically valuable eligibility requirement.
Problems with this that I haven't thought about enough yet: (1) what if there are more than two parties? (2) what if a state is super annoying and does everything in a unique snowflake way and their state legislatures are officially nonpartisan? (I'm looking at you, Nebraska); (3) what do we do with quasi-Independents? (e.g., Bernie Sanders). I think these are probably solvable with more thought, but I just wanted to outline the idea here as a start in case I'm missing some critical flaw that dooms the whole idea.
This doesn't quite have the same level of guarantee of restricting the eligible pool to moderates: the minority party might try a gambit like nominating a hyper-extremist of the other side, with the hope that the majority prefers a moderate (and so they get to push the envelope slightly further toward their preferred moderates), but they miscalculate and the hyper-extremist ends up winning. I think that's an acceptable risk though - I expect that only needs to go wrong a couple times before the minority party realizes that the risk-reward ratio isn't great. In any case, the reformed Senate will likely have a few extremists hailing from extremist states anyway.
I think the main issue here is that it would entrench the notion of partisan caucuses into the Constitution. Yes, they exist, and they're (probably) not going anywhere, and ordinary bills do reference them from time to time (as I recall the proposed John Lewis Voting Rights Advancement Act's provision for redistricting referenced party registration) but it's both a bug and a feature of the US Constitution that it doesn't. (A feature in that it's saying by omission "don't form these, they're bad" and a bug in that it's left with no means to control them, whatever form they take, even as it precludes banning or severely restricting them legislatively because they're obviously a core subject of freedom of peaceful association.)
Fekking Nebraska always throwing mud in our gears! STOP BEING WEIRD, NEBRASKA!
(Nebraskans, I jest only.)
I agree with Daniel's criticism BUT AT THE SAME TIME I think there are... let's say for now that I think there are related approaches that can avoid the party difficulties you've noticed. I'll say no more for the moment, because I am still thinking, but we are thinking along similar lines.
On reading the post more closely, and contrary to my previous statement, I see no route to me getting pettily vindicated on mislabeling or not holding roll-call votes, nor on collapsing DW-NOMINATE to two points, or on adjourning the two-thirds part of the election process; therefore be it known to all to whom these tidings come that on these questions James stands pettily vindicated.
Now on to my remaining points of petty vindication:
My theoretical point on overturning vs. preempting incompatible law is totes relevant! Here's how: It is conceivable if admittedly not likely that even a career politician may feel bound by an oath even if it can't be enforced by the human legal system. Your amendment says "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)." Here's the loophole: The state Constitution can contain a provision purporting to bind the electors. That provision is unenforceable, but there is an explicit exception allowing the oath. That would be neatly resolved if such a clause was completely nuked from the legal order and I took the next sentence ("Any instruction, advice, or requirement laid upon an elector, outside the provisions of this Constitution, shall be likewise null and void.") to mean precisely that. This is actually exactly how the German supremacy clause works ("Federal law breaks state law.") but much stronger than the American version ("[...]shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding."). In the American version (what German lawyers call "Anwendungsvorrang") the inferior conflicting law remains "in the Constitution or Laws of any State" in the German version ("Geltungsvorrang") it doesn't. In practice there are two differences: If it is only Anwendungsvorrang, the clause can revive if federal law changes. And if it is only Anwendungsvorrang, you made an explicit exception to allow the state to require its senators to swear by it.
On the parties collaborating to statistically de-moderate their respective moderates in DW-NOMINATE:
This would start happening years before the election and in particular before they would know which party is in the majority at the next election. In that situation it is plausible that they would collaborate to shoot each side's ?INOs, and then see who gets their candidate in later. Basically a chance of an own hard-liner for a risk of the other side's.
On defining the state senate:
Speaking as advocatus diaboli, I don't think any state ever really wanted different qualifications for state and federal electors, so the argument that it wasn't exploited isn't that strong.
But at the end of the day I think there is no way easy way to exploit-proof this. How about just giving up and retreating to "a popularly elected branch of the state's legislature, and if there is more than one such branch the most senatorial one, which may be authoritatively identified by state law".
Your last attempt ("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. ") also has issues:
You may view this as a feature, but this bans direct democracy like e.g. the Californian initiative system. (Yes, I know it's my formulation, I wasn't trying to write evil-djinn-proof.) Also not really what you want, because a state might actually want to make its reflective chamber overridable like most European countries do.
I suppose I might as well comment on the responses to my points. As is often it seems I come in rather late compared to everyone else.
I feel a bit bad that you spent so much time critiquing the idea I gave of proportional representation for the Senate, because the specific thing I suggested was a kind of random idea I had, mostly to show how someone could look at other countries to get ideas. I think it did have some promise, but it was meant to be more of an example than necessarily a strong suggestion. I perhaps should have made that more clear. So I won’t be getting into too much of an argument on your points there, but I wanted to respond to this part:
“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.”
I have looked at the linked article, and I am very uncertain of its claims. It talks over and over about how third parties are legally unable to do things, like when it says:
“Maybe the Socialism Party wants to select candidates at its annual convention after a rich and edifying political debate. Too bad, that’s illegal. The state doesn’t care for these smoke-filled room candidate selection processes, it got rid of them back in the Progressive Era. Candidates will be selected inside a state-sponsored ballot box by individual voters.”
But… third parties do this. Various third parties run candidates without public primaries. Granted, I’m speaking only of my own state, so maybe it’s more of an issue in other states. But what it insists is illegal is exactly what I do see third parties do. Heck, a comment on that linked post (the comment by hash872) asserts this, saying that the claims in the article seem “wildly wrong” and gives various examples of parties doing exactly what the linked article claims they are not able to do. If the claims of hash872 are correct--and they seem to be--political parties do appear to have more control over candidates than the article you linked seems to think. However, even if we were to suppose everything it claimed was correct, there’s a larger problem with the argument. The argument is “well, this method of proportional representation for Senators won’t work right, because due to various laws, parties don’t really have control over who they nominate, so they can’t do it.” But… the whole reason we have the current primary system is precisely because we don’t have proportional representation. It would not exist, and inherently could not exist in proportional representation. Saying it wouldn’t work under current rules is like if someone were to dismiss your electing-the-President-by-governors idea on the grounds that it doesn’t work with the laws states have about primaries! The rules making this political party “illegal” would be mooted by the new method of election anyway.
At any rate, the main point I was trying to raise, which I think remains valid, was the question of why you don’t look more at other countries and how they do it. Because an issue with your analysis—and this is actually something, upon reflection, occurs frequently in these amendment series—is that it’s so strongly focused on US history of government with barely a look at other countries outside of sometimes talking about the UK. It makes perfect sense to focus primarily on US history given that’s the country the adjustments are designed for, but I can’t help but think that there isn’t a whole lot of value in looking at what other countries have done in the last 200+ years for inspiration in seeing what worked and what didn’t work.
So, when you say:
“To my knowledge, 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.”
But that just brings up the question: SHOULD we be doing that? Should we be rigidly trying to recreate their ideas via untested voting systems, or looking at the other voting systems people have tried and seeing if they might have real merit?
But here is the thing. Even if we are married to the idea of the Senate being chosen by state legislatures or state governments… other countries have done that. Some STILL do it. It looks to me like Germany, Austria, Belgium, India, and South Africa all have their upper house chosen by state governments, and there are probably others too. That means that unlike the Senate in the United States, apparently people are satisfied enough with the representative chosen by governments that, unlike the United States, it hasn’t been changed to be popular elections. Why does it work there, or at least work well enough that people haven’t thrown it out like they did in the United States? (maybe it works poorly, but it at least works well enough it’s still in place) There’s probably varied explanations based on countries, and no doubt another factor is what their upper house actually does could be be different than that of the US Senate—but it’s something that seems like it could merit investigation, at least for inspiration.
Granted, the fact the US Senate requires equal representation in the Senate is something some of those countries don’t have (e.g. Germany’s is more population-based), but that could be adjusted to meet US needs.
Granted, I’m not so sure how well any amendment that would shift it back to state governments over more direct votes by the people would do. Voters normally don’t like losing power, and that’s an issue with this (that I don’t think I mentioned in my prior comment, and perhaps should have been more explicit about). “Hey, voters! Want to have LESS of a say in choosing Senators?” That’s a hard pitch. That’s another reason why I have to wonder if trying to do it by state legislature is even possible to get into an amendment, and why an adjustment that keeps power in the people’s hands more directly in some way would be easier to persuade people about. The proportional representation I threw out, while just a random idea, is something that would better keep the power in the hands of the people and therefore be more attractive to them. A pitch of telling people to give up power is always a very hard one.
Still, even if we were to try to go with something by the legislatures, I do think it would be smart to look at other countries that are actually currently having a house chosen by state governments and seeing if what they are doing might work and avoid the problems that changed the Senate. I’ll admit that to some extent this is just me dumping work on you that I haven’t done (“hey, why not look into these things that I haven’t dived deep into yet!”). But it still seems to me like if one is looking for good inspiration, seeing what other people are doing and seeing how it does/doesn’t work could possibly be very useful rather than jumping to an untested idea.
One thing I wonder about is whether the proxy voting problem (voting for someone in the state legislature to indirectly vote for Senator) might be less of an issue if there were more political parties. If it's unlikely that one party will get a majority, they'd inherently have to form a coalition in order to choose a Senator, so you wouldn't have any guarantee that your vote for a particular party would end up getting a Senator of that party (it turns from "vote for the Republican and you get a Republican senator" into "vote for the Republican and you get a Senator who might be Republican or just Republican-ish" which is obviously a weaker inncentive). Then again, that might end up causing the gridlock problems seen prior to the 17th Amendment.
This last part was not directed at me, but I still want to comment:
“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!”
I guess it’s time for me to be the dissenter. I didn’t comment on the size because I didn’t think it actually really mattered that much; whether the size goes down or up isn’t of great importance to me. However, I don’t think reducing it is so important that it should mean we should be rejecting ideas that keep its size or even increase it.
The argument for reduction is the claim that with so many people, it isn’t able to “deliberate properly”. This seems a bit too abstract of a complaint to me. Honestly, the idea of it being a small deliberative chamber at this point seems to be a lost cause with how many states there are; whether 50 or 100, it’s too big to recapture whatever original hope there was back when its membership was in the 20’s. Sure, 50 could be seen as an improvement over 100 or even larger numbers, but not to such an extent that I think any ideas on how to fix the Senate should be viewed as requiring a reduction. I suppose all other things being equal I wouldn’t object to a reduction to 50, but I do not think decreasing it is of such importance that things should ever be dismissed for keeping it at the same size or even increasing it.
I am admittedly guessing here, but what I would speculate about minor parties functionally getting to nominate their own candidates without a primary process is as follows.
It's not so much a strictly legal matter as it is a confluence of law and on-the-ground reality. In (almost) every election in the US, either the Democratic candidate or the Republican candidate will win. (There are exceptions, of course.) Most people voting in primary contests, therefore, will choose to vote in one of those two, and as I understand it you typically can't vote in more than one. The people voting in a contest for a minor party, therefore, may well just be the party executive in the area in question, thus effectively giving them the power to nominate their own preferred candidate.
The true problems that arise are twofold. For one, if a third party were somehow to become popular enough to draw people to vote in their nominating contest because their candidate has a real shot at winning, the party executive loses this ability. (New York, which still allows fusion voting, where a candidate can run for multiple parties at the same time, sidesteps this by having closed primaries, at least last I heard, so in particular to vote for Presidential convention delegates in New York for one of the major parties you have to register with one or the other, which precludes voting for who appears on the lower-race ballot lines for the Working Families Party or the Conservative Party or what have you, leaving only the true diehards to decide who gets those ballot lines.) The second problem is that once a candidate is nominated, because legally they were nominated by party members and not party executives (even if the two are coterminous), the party executive can't remove them. This arose, again in New York, when Alexandria Ocasio-Cortez unexpectedly upset Joe Crowley as the Democratic nominee for his House seat, but the Working Families Party had already nominated Crowley (probably without opposition) for their line, probably as part of a working relationship they have with the Democratic Party (Crowley was in House Democratic leadership), so even though the Working Families Party verbally endorsed Ocasio-Cortez, Crowley remained their official candidate and was on the ballot.
This stands in contrast to places like the UK and Canada. In 2024 (this is brought up in the article), Labour in the UK decided that Jeremy Corbyn--former leader, still popular with part of the party base--had become too toxic to the party's brand overall (in part because of his views on Israel-Palestine and claims that he'd allowed antisemitism to fester in Labour under his leadership) and summarily removed him as the Labour candidate for Islington North (a constituency in Greater London), running another candidate in his place and campaigning against him. Corbyn chose to run as an independent regardless and won. Labour Party members in Islington North probably would've chosen Corbyn, but the national executive didn't want to be saddled with him, so to prevent what they saw as further damage to their brand they got rid of him. In 2025, the Liberals in Canada decided that Chandra Arya, three-term MP for Nepean (an Ottawa-area riding), could not be allowed to run under their party banner and summarily removed him as candidate for the riding (Arya did not stand as an independent). They never gave a reason for this (they had earlier removed him from the race for the party leadership, again without a reason) and newly elected leader Mark Carney ran and won in Nepean (which sure looks suspicious; Carney had said he would run in an Ottawa-area seat because his main professional experience in Canada, working at and then Governor of the Bank of Canada, was in Ottawa, but there were no open seats there when he made that announcement, until Arya was removed). (If I had to guess, the Liberals removed Arya because he was seen to be too close to Narendra Modi, and Canada-India relations aren't great right now, but this was never confirmed and there was no obligation on the Liberals' part to give a reason.)
That is just my guess, as I said, I haven't trawled through state electoral laws to see exactly how it all works--for instance, maybe some states have separate provisions for parties with low registration numbers--but I think the point remains valid if you're talking about a party that becomes a serious challenger to the major parties and attracts voters to its nominating contests.
As for other countries choosing their upper houses via state legislatures, that is true, but the catch is that those upper houses almost always have less power. India maybe comes closest but even then it's subject to some limitations, such as not being able to bring a no-confidence motion (a typical restriction on upper houses in bicameral Parliamentary systems anyway), and being entirely unable to originate and effectively unable to block money bills (the latter probably imported from the UK and the Parliament Act 1911), and India has a joint-sitting provision (probably imported from Australia; also Indian federalism, unlike almost any federal system aside from Canada's, assigns residual powers to the federal legislature), so a government with a majority in Lok Sabha but not Rajya Sabha can request that the two bodies sit in joint session and vote as a unicameral legislature, with the government's majority in the lower house being large enough that combined with its members in the upper house it has a majority in the combined assembly. So Rajya Sabha doesn't really fit the mould that James wants the US Senate to fill.
I do agree with you, as I brought up in my own remarks, that it is worth asking whether the Senate is still an institution worth having at all, at least in its current form (or in a form where some body other than the electorate selects its members) and with its current powers.
"The constitution of a second legislative body for the united Legislature, involves questions of very great difficulty. The present constitution of the Legislative Councils of these Provinces has always appeared to me inconsistent with sound principles, and little calculated to answer the purpose of placing the effective check which I consider necessary on the popular branch of the Legislature. The analogy which some persons have attempted to draw between the House of Lords and the Legislative Councils seems to me erroneous. The constitution of the House of Lords is consonant with the frame of English society; and as the creation of a precisely similar body in such a state of society as that of these Colonies is impossible, it has always appeared to me most unwise to attempt to supply its place by one which has no point of resemblance to it, except that of being a non-elective check on the elective branch of the Legislature. The attempt to invest a few persons, distinguished from their fellow-colonists neither by birth nor hereditary property, and often only transiently connected with the country, with such a power, seems only calculated to ensure jealousy and bad feelings in the first instance, and collision at last. ... It will be necessary, therefore, for the completion of any stable scheme of government, that Parliament should revise the constitution of the Legislative Council, and, by adopting every practicable means to give that institution such a character as would enable it, by its tranquil and safe, but effective working, to act as an useful check on the popular branch of the Legislature, prevent a repetition of those collisions which have already caused such dangerous irritation." (Anti-French bigotry omitted.)
To put it in the words of Lord Durham, is the US Senate still "consonant with the frame of [American] society?" Because even if society would shift after some electoral reform is enacted (hardly a given; society shifted in the decades after Lord Durham's report to make the Lords seem ever more anachronistic even as it retained its full powers, until passage of something like what became the Parliament Act 1911 became necessary and inevitable) it's still a major problem to find a reform that could be enacted in the society that exists now and wouldn't eventually lead to demands to give (or, in this case, return) election of Senators to the people at large.
FWIW, here is how it works in Minnesota. I know a little about this, because I served for several years in the immediate post-Trump aftermath as the Secretary of the American Solidarity Party of Minnesota.
When you first start out, you're just a non-profit organization, governed like a normal non-profit organization. You can do whatever: nominate people as you please, eject them as you please, as long as it's done according to the organization's constitution and by-laws. The State of Minnesota doesn't care because, as far as the State of Minnesota is concerned, you don't even count as a political party!
The first goal is to achieve the status of "minor political party" (statewide). This is vital, because it gives you access to Minnesota's public campaign finance system (an income tax checkoff and a program called the PCR, where every citizen can give $50 to the program once a year, optionally designated for a specific party, and get a full refund of the money on income tax). Achieving minor party status requires winning 1% of the popular vote statewide or collecting an equivalent number of signatures. However, you still exercise no actual power, and you still can only get on the ballot the same way an independent candidate must: by gathering signatures for a petition, for every office, for every election.
The holy grail, of course, is guaranteed ballot access. This is secured by achieving "major political party" status. Obviously, the MNGOP and MNDFL both have this status, but we occasionally see other interlopers: Jesse Ventura's iteration of the Reform Party had it for a while, and the Legalize Marijuana Now! party had it for a few years. (I think they've since lost it.) "Major political party" status requires a party to place 76 candidates on ballots around the state (by gathering signatures) all at one election (or to collect signatures = 5% of all votes statewide). Once you do that, you have party-based ballot access.
You are also boned, as far as your associational rights go.
Once you are a major political party, you *must* participate in the state's *open* primary election. *Anyone* can run as a candidate for your party, even if you have specifically ejected them from your party. They do not have to gather signatures! They just have to have participated in your last precinct caucus! Your actual nominee, endorsed by the convention, will not even receive a special marking to show that she has the endorsement! Moreover, *anyone* can vote for those candidates, even if they are not members of your party (although they can only vote in one primary).
Oh, speaking of precinct caucuses: you have to have them now. Party officials must be elected by those caucuses. The caucuses must have ultimate control over the party. The caucuses must elect the delegates to the state convention which controls party rules. These caucuses are open to anyone, although participants are at least supposed to affirm their support for the party's principles.
You do not get the option to just not become a major political party. Once you have enough candidates, you legally hold the status, and all these requirements begin to attach.
So, no, I read your article and agreed with it completely. There's definitely culture involved here, too, but the law, by itself, destroys the ability of political parties to simultaneously wield political power *while also* regulating their own membership. To hold political power, at least in Minnesota, your party must sacrifice the level of control over the nominating process that it would need to manage list-based proportional representation. Of course, we could change that! But it would require a wholesale reorganization of America's political parties and sweeping changes to party powers and elections in most of the 50 states. That is thornier, in my view, than simply reorganizing the Senate.
@Tarb mentions a comment by a hash872 on the original article (https://jwmason.org/slackwire/political-parties-are-illegal-in-the-united-states/ ) where hash872 made some claims against the article's claim. It is true that some states allow some limited space for parties to operate. The Virginia GOP was able to nominate a governor by convention *in lieu of* a primary, although I'll bet $10 that the convention still had to be made of delegates ultimately tracing their authority back to an open caucus. Utah only goes to a primary if a convention fails to endorse. These are, however, exceptions, not the rule. Many states close primaries, but none restrict them to dues-payers only (and party registration is not a high obstacle).
I think you could have list-based PR in a system like that used in most states while still falling within the spirit of Progressive Era reforms.
(For all that its democratic reforms have been, well, not great, the Progressive Era had an important insight: that for the average voter, a legislative body has more legitimacy to participate in the lawmaking process the greater and more direct the popular input into its composition is. Perhaps you think this is a flaw in human psychology and agree with Lord Durham's view that it is good to have an "effective check ... on the popular branch of the Legislature" but it is nonetheless one that any reformer must grapple with.)
The catch is that it couldn't be party executives choosing the lists unilaterally; it would have to be, probably, a party convention (chosen by a caucus process, likely).
In fact, for the system I think we're both thinking of, James, you'd still need such a process, though only as a fallback in case one party gets an outright majority of the qualifying party vote (which does happen from time to time; see 2020 New Zealand for a recent example).
Of course, this will put a lot of populist energy into picking said lists and you will probably end up, after the usual suspects, getting a lot of candidates from the "traditional buckets of populism". (Apparently Italian parties will often put celebrities and the like low on their lists, just to fill them out. I'm not sure if the person even has to consent to being placed there.)
On the final point, it just occurred to me that restricting voting in primaries to dues-payers only (even if it's the party to whom the dues are paid, and not the state) would either come very close to violating, or actually violate, the 24th Amendment.
"As for other countries choosing their upper houses via state legislatures, that is true, but the catch is that those upper houses almost always have less power. India maybe comes closest but even then it's subject to some limitations, such as not being able to bring a no-confidence motion (a typical restriction on upper houses in bicameral Parliamentary systems anyway), and being entirely unable to originate and effectively unable to block money bills (the latter probably imported from the UK and the Parliament Act 1911), and India has a joint-sitting provision (probably imported from Australia; also Indian federalism, unlike almost any federal system aside from Canada's, assigns residual powers to the federal legislature), so a government with a majority in Lok Sabha but not Rajya Sabha can request that the two bodies sit in joint session and vote as a unicameral legislature, with the government's majority in the lower house being large enough that combined with its members in the upper house it has a majority in the combined assembly. So Rajya Sabha doesn't really fit the mould that James wants the US Senate to fill."
Yes, them being less powerful is likely a factor—I alluded to this when I said “and no doubt another factor is what their upper house actually does could be be different than that of the US Senate”. For example, I was looking into the Bundesrat, Germany’s upper house (Bundestag is the lower one). Legislation has to start in the Bundestag (the Bundesrat can propose legislation to the Bundestag which can pick it up if it’s interested, though), and then goes to the Bundesrat. For bills that affect the states, called consent bills, the Bundesrat needs to pass it by majority vote. For other bills, called objection bills, if the Bunderat votes it down, the Bundestag can bypass that vote by passing it by majority a second time, unless a full 2/3 of the Bundesrat voted it down, in which case the Bundestag needs 2/3 of its members to vote for the bill. (the Bundesrat actually has a website that has English descriptions of everything, which is nice, like https://www.bundesrat.de/EN/funktionen-en/gesetzgebung-en/zust-einspr-en/zust-einspr-en-node.html#doc5157314bodyText1) This does indeed make the Bundesrat a lot less powerful than the Bundestag (I’m a little unsure how many bills count as objection and how many count as consent, though; I saw someone say it was about two thirds of them that were objection bills (which again the Bundesrat has great difficulty stopping), and ChatGPT, for whatever that’s worth, gives a similar number).
But honestly, maybe that’s a sign that the Senate should be weakened, especially given the fact it’s clearly the more powerful of the two houses (presidential appointment approval is a VERY big deal, and in return the House gets… basically nothing). A previous article in this amendments series suggested making the Originations Clause work as it was supposed to by forbidding the Senate the ability to amend money bills as a way to strengthen the House. I was skeptical of that idea for several reasons, one being that I didn’t think it actually did much to empower the House… but if it was like the Bundestag/Bundesrat and EVERYTHING had to effectively start in the House, and the Senate couldn’t give ANY amendments to ANY bills, that could make more of a difference. A further possibility would be to somehow weaken the Senate’s power to vote down bills, possibly by enacting something like the system described prior.
Of course, one tricky thing is trying to evaluate how these things work in practice, as presumably the best information on what people think would be in German, which I don’t speak. Still, in my looking up information on this specific arrangement (I went with Germany just because it was the one I was most interested in--notably, Germany is a federation like the US rather than a unitary state), it has given me a number of more things to think about.
The thing is, James also specifically said that he doesn't want a weaker Senate, so doing that also defeats the purpose of the question in the first place.
I agree with you about his Origination Clause proposal; it does very little as long as the Senate can block money bills, even if it can't amend them (or, for that matter, if the President can veto them, even if there's no line-item veto). But tweaking it to not work that way gives the House an absurd amount of leverage over the Senate and the President: they can pass a money bill which denies funding to the Senate and to the executive if they block anything else the House passes (and maybe to the judiciary if it does that).
(You might be able to finagle past this by defining "money bill" in a way that would prevent such a clause from being in there; the Parliament Act 1911 has a strict definition of money bill and requires that Opposition leaders agree that a bill meets it, and only in that case can the Commons demand that the Lords pass the bill without amendment within one month.)
The fix, really, is to give the House co-equal power over appointments, as they have with the Vice President, because it seems to me like any fix to money bills is either too weak or too strong, within the context of the US system.
(Costa Rica has a unicameral legislature in a Presidential system; of note is that the President cannot veto the budget, but the legislature cannot block executive-branch appointments. I'm not entirely sure how judicial appointments work there, and I'm not sure what legal mechanisms, if any, exist to stop the legislature from telling the President he can't turn the lights on at the Casa Presidencial if he vetoes anything.)
"The thing is, James also specifically said that he doesn't want a weaker Senate, so doing that also defeats the purpose of the question in the first place."
I dunno. I'm not sure of everything I said or where I said it, but, right at this moment, I'm looking at this and thinking "a Senate that can't originate or amend is a very interesting idea."
The House really should be primus inter pares, and it may well be that strengthening the Origination Clause on money bills doesn't go far enough.
That's how I read this paragraph (among others):
"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."
The Lords, back then, had an absolute veto and significant powers of amendment and origination. Just about the only powers they didn't enjoy were the origination of money bills (or substantial amendments thereto) and voting no confidence in the government. But the Lords was (and I will keep quoting Lord Durham*) "consonant with the frame of English society" of the time. And maybe the US Senate, at the time, similarly reflected American society. (The somewhat macabre joke I heard about this: An American exchange student in Europe was asked why Americans call themselves that when there are so many other countries in the Americas. She asked what else they should call themselves, and the questioner suggested state demonyms. She noted that they used to do that, and then they had a big civil war.)
*Full report: https://en.wikisource.org/wiki/Report_on_the_Affairs_of_British_North_America (all of my quotes come from the last section, General Review and Recommendation)
You're right that a Senate that can only vote yea or nay on bills proposed by the House might be better, but there would still be resentment if the Senate perpetually blocks legislation that the House keeps sending to it. (I bring this up further in a comment I made on someone else's article that I linked in my longer comments here, but the Senate of Canada has a sense of its role in the modern balance: study and debate, and provide sober second thought, not beholden to the vicissitudes of electoral democracy, but ultimately do not block if the Commons makes itself clear on a question.) The House should perhaps be primus inter pares, but there is a very careful balance to be struck between that and the House being able to bulldoze everyone else, and I'm not entirely sure if that balance can be struck within the constraints and confines of a Presidential system. (Whereas mechanisms like confidence and the monarchical/Presidential recommendation, or financial veto, or similar that may exist elsewhere but that I haven't run across for want of having looked, seem to me to serve that purpose in Parliamentary systems, of making the popular branch the primary body while still leaving space for other organs to tap the brakes and prompt it to take another look at its more ill-considered ideas.)
There were some other interesting differences with the Senate and Bundesrat I didn't note, and maybe should have (I was just talking about power/duties). I meant to edit my post, but by the time I wanted to, I already had replied! Anyway...
-There are no fixed terms; members just serve at the pleasure of the state governments, who can replace them at any time (times of replacing them would normally be if there's a shift in the parties in charge of the state government). This seems to have various advantages, though it does mean it can change very abruptly, unlike the Senate where only 1/3 can change in an election cycle.
-Members of the Bundesrat are all members of the state governments and serve simultaneously in the Bundesrat and state government. This actually seems a decent idea, as it provides a stronger link between the state government and the upper house. This would have been unthinkable for the writers of the Constitution given the issue of travel and communication times, so they had to have a separate Senator not part of the state legislature, but by the late 1940's when the German constitution was made, this sort of setup was actually possible given faster communication and travel times, plus the fact Germany is a lot smaller than the US was even at US's founding. And of course nowadays there's no real travel or communications obstacle for members of congress, which is why the Recess Appointments Clause is a total anachronism at this point, as Justice Scalia observed.
-Bundesrat members from a particular state have to vote unanimously (if they don't, their votes get ignored).
The one thing I'm having difficulty figuring out is the exact mechanism for choosing the Bundesrat members. Websites about how it works like Wikipedia or the Bundestag site itself seem to only ambiguously say that they're "appointed" by state governments without clearer specifications (see for example https://www.bundesrat.de/EN/organisation-en/stimmenverteilung-en/stimmenverteilung-en-inhalt.html).
Keep in mind that Germany uses a variant of responsible government in a parliamentary republic.
(The chief difference between its form and that in the UK, aside from the monarchical aspect, is that no-confidence votes are not generally allowed, except when the government is moving confidence in itself, usually to lose deliberately and trigger an election, or when a different governing coalition is moving no confidence and will replace the current coalition upon passage of the motion, known as a constructive vote of no confidence. This is to avoid the instability seen in the Weimar Republic, where it proved far easier to find a majority against the current government than it was to find a governing majority.)
The method of selection of Bundesrat members is somewhat beside the point; since they must vote as a bloc anyway, it doesn't really matter which particular people are chosen, but typically they are part of the state Cabinet and are chosen by that body, likely as part of coalition negotiations (except in those rare cases when no coalition is necessary). It's even less relevant since I think they can be changed at any time, even without the governing coalition changing.
The Bundesrat's composition does shift somewhat abruptly, but it shifts whenever a state holds an election (and the election produces a new governing coalition). It's more that its composition shifts more often but less strongly (since at any one time at most six members, from any one of the most populous states, can change, unless there's coincident elections and/or delays in coalition formation).
It's interesting to consider the Bundesrat (and other such upper houses) but it is very much rooted in a German form of responsible government. It exists to protect the interests of the states, but it does so by giving state executives, chosen by state legislatures, direct representation which changes whenever the state executive changes. A similar method of selection wouldn't make nearly as much sense in the US, where the state legislature and state executive can be controlled by different ideological factions (eg Vermont, Kansas, Kentucky). But this goes into the argument I regularly make for the superiority of systems of responsible government, to which now I will only remark that when the US had significant input into a country's constitution (rather than just being a source of inspiration for its writers), it chose models of responsible government (West Germany, Japan, Iraq), that Linz's "The Perils of Presidentialism" contains points which remain valid today, and this observation from Tony Benn, found at https://yougov.co.uk/politics/articles/8865-tony-benns-finest-speech:
"Our ancient pageantry is but a cloak covering the most flexible and adaptable system of Government ever devised by man. It has been copied all over the world just because it is such a supreme instrument of peaceful change."
EDIT: Also, looking at other countries' implementations of federalism and upper houses right now is technically an exercise in futility, since the current official position of the US government is that no other country is actually federal. (Source: https://www.cbc.ca/news/politics/us-ambassador-trade-9.6985050 re whether Canada as a whole is responsible for an ad run by the Government of Ontario, "I'm sorry, we don't go through that slicing and dicing.")
(Yes, I'm Canadian. Yes, I'm beyond livid that the current President has said "51st state", and I'm even further beyond livid that Americans don't take it seriously, and even more beyond that that the current ambassador is nothing but a crude gaslighter, and I think we should kick him out--he'd be less insulting if he threatened to drop a nuke on Ottawa. And I will never, ever trust the US again without a Dayton Agreement arrangement.)
Assorted points of explanation on the Bundesrat:
- As Daniel Pareja already pointed out, "the government" in this context has a narrower meaning then just everybody in power, it's somewhat similar to what Americans would call the cabinet but responsible to and recallable by a parliament.
- The state government appointing members to the Bundesrat is just a resolution that says these particular people are hereby appointed to the Bundesrat. The precise names don't matter much because in practice that resolution will go on appointing all other members of the state government as deputy members of the Bundesrat and the rights of members and deputiy members are exactly identical.
- At least the plenary session of the Bundesrat is very much not designed to be particularly deliberative. They meet once every three or four weeks for a few hours. The last session had 82 agenda items and took four hours, so on average less than 3 minutes per decision. There are a few speeches but applause is frowned upon (used to be forbidden) and there are no questions, back- and forth interactions etc.
- State governments decide their votes in their home states before sending anyone to Berlin and also agree on one person to raise his or her hand to cast all of the state's votes. There is no quorum and typically a state will have less people present than it has votes. In theory the president of the Bundesrat knows how many votes each state has and does the arithmethic in half a second before announcing the majority. In practice that works because the votes are known in advance.
- Allegedly the comittees do have more open-ended discussions on practicalities of execution because they have the beurocrats who actually will be implementing the law. (In Germany most federal legislation is executed by the states.) At least that's what is said, but I wouldn't really know since the comittees don't meet in public.
- A majority in the Bundesrat is defined as a majority of the total number of possible votes, so an abstention has exactly the same effect as a vote against whatever the motion is. Most states have coalition governments and most coalition agreements specify the state will abstain if the coalition parties can't agree a joint position. Functionally this is very similar to a super-majority requirement perhaps also slightly similar to the filibuster in the US Senate. Then it depends on the bill; some bills require assent of the Bundesrat, so a defeat of the motion is defeat of the bill and other bills pass if the Bundesrat doesn't object so a defeat of the motion effectively passes the bill.
- Most of the things Americans would do by regualtion or executive order are done by "Rechtsverordnung" in Germany; see Art. 80 of the basic law (https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0420) for the procedure. Most federal Rechtsverordnungen need affirmative assent of the Bundesrat and one might argue if this is more or less important than its role in primary legislation. This kind of executive intertwining makes sense in Germany's weird version of federalism where most questions are legislated federally but then executed by the states, so Rechtsverordnungen often are the federation telling the states details about how to do their jobs.
- Very occasionally there is a question where the conflict line is the states vs. the federation (usually about money) but of course most of the time the state level parties agree with their federal collegues and that plus the state-level coalition agreements is where Bundesrat votes come from. So most of the time it is party politics plus a functional supermajority requirement.
- I think the functional super-majority requirement even for quasi-legislative executive decisions probably does play a role in German politics being more consensus orientated than American politics. But that doesn't come from wise statesmen deliberating under parliamentary procedure, it comes from anything big needing some opposition buy-in and backroom deals before the official debate starts. Also German wonks hate that functional super-majority requirement and perennial reform proposals for making the Bundesrat less obstructive are probably the cultural equivalent of American proposals to get rid of the electoral college. I like the obstructionism but I'm a weirdo.
- State level elections in Germany are to a large part determined by the federal-level political mood, and how the election result affects the Bundesrat is often the big news item after a state level election. It doesn't help that the exact distribution of power between the EU, the federation, and the states can't be explained in a typical attention span so even very educated German voters typically have no clue who is responsible for what. But also the most controversial questions do tend to be federal so treating the state-level vote as a Bundesrat election is somewhat rational in the short term.