by Matt Barr

Three wishes

An interesting debate is going on at Marginal Revolution about what you would ask for if you had three wishes -- more specifically, how you would amend the Constitution three times, if you could. The topic is prompted by a very interesting article by James Buchanan at the new Cato Unbound site. Here are my three.

1. I would repeal the 22nd Amendment's term limits for the President. I would provide for more candidates each year by requiring the Senate to nominate one of its members, and governors to nominate one of their number, for President, then letting the political parties nominate others, including the incumbent if they want. I would get minor parties in the door by providing for six debates by law, with participation open to any candidate who gets a certain number of signatures on a nationwide petition. I would require any participant in these debates to be on the ballot for President in every state.

I would provide that candidates for President could only take donations from persons, and must publicize the names and amounts as soon as the check is cashed. There would be no limit to the amount of a donation, but everyone (including the candidate's opponents, who would make sure the public knew) would know exactly where it came from. Finally, I would expand the number of electors to three times the number of Congressmen and Senators a state is entitled to and award electors proportionately to the popular vote in the state -- no more winner take all.

2. I would keep direct election of Senators, on the theory that I don't want to contract the franchise in the Constitution. But I would provide that a Senator could be recalled by vote of the state legislature and replaced by the sitting governor of the state. Hopefully, this would accomplish a couple things. It would make Senators more interested in doing what their constituents elected them to do; but the recall power would not be abused if the sitting governor had to take his/her place and a special election for governor had to ensue.

But what if the legislature wanted to effectively impeach the governor -- say, for example, Bob Taft in Ohio -- and had an unpopular Senator like Mike DeWine to work with? I think there would need to be a much better reason than this. The people of Ohio would be furious not only that they'd be getting a bigger dud in Washington than DeWine out of the deal, but that they would have to have a special election to pick a new governor (for I wouldn't want the Lieutenant Governor to be automatically elevated).

The more likely scenario is a Democratic (switch the parties around if you want, this is just for illustration) legislature with a Democratic governor recalling a Republican Senator. Again, they couldn't do this on a whim, because they risk a Republican being elected governor, and because the people of the state will hold the legislature to account if they recall a popular guy or gal. As long as that check is in place in terms of the voters of the state, I honestly couldn't care less how this affects the two-party balance of power in the Senate. I think the idea of state legislatures tipping the balance of power in the Senate is kind of attractive, anyway.

Ok, I'm sure there is some way to abuse this, but with more thought we could head that off. The upshot is, don't return to the pre-17th amendment appointment of Senators by the legislature, but give the legislature a recall power, making it difficult or unwieldy to exercise so it isn't abused.

Why do you want to do these two things? These are the most important things you can think of? Well, no, my third idea, below, is the real doozy. But: you may not share my theory that President Bush would be working a little harder to get the country behind him if he weren't a lame duck, but hopefully you can see the benefit of having a President who is motivated to do well by the possibility he could be re-elected. Getting more candidates involved means a more thorough debate of the issues, fewer (I hope) sound bites, and more choice. How often have we had an election where most people had to swallow hard and vote for the lesser of two evils? The more legitimate candidates on the ballot, mathematically, the less often that will happen. And splitting the electoral votes of a state according to percentage of the popular vote means states can't be given up for lost in August. Candidates would campaign in more places, talk to more people, and address issues of importance to a broader range of voters.

I want to be able to recall Senators because they're awfully difficult to unseat themselves. I don't like the 17th Amendment, but as I say, I like the idea of amending the constitution to give people less power to vote even less. The idea isn't to get rid of underperforming Senators, though that's a feature, it's to keep their feet to the fire and incentivize them to represent their states. Does Sen. Ted Stevens act so intractable in the face of significant opposition in his own state to his "bridge to nowhere" if Alaska's legislature can recall him, for example?

3. I would provide that Congress' power to enforce the 14th Amendment includes the exclusive right to determine whether a state law violates it, and that no federal court may strike down, nullify or substantially revise a state law as violative of that amendment.

Let the Supreme Court strike down federal laws that abridge freedom of speech, but they're out of the business of reviewing state laws under the 14th Amendment. (State laws will still find themselves in federal court, for example alleged to be pre-empted by the Congressional commerce power, or for enforcement under the Full Faith and Credit clause, for two examples out of many.) Let Congress vote on whether a state death penalty law is cruel and unusual punishment, and stand behind their votes come re-election time. Let Congress decide whether state laws regulating abortion are unconstitutional.

[sputter] [blub] [hffft] GAAAAAAH! you say on the left. But you shouldn't! Yes, Congress is in "Republican" hands now, but if they vote to repeal Roe v. Wade and start letting states outlaw abortion, then you have an incredible opportunity to retake the House and Senate. If the country agrees with you. And Congress would have to consider that as it went around striking down or upholding state laws. The upshot of this, of course, is that most laws would be considered constitutional, and the people of the state would have to contend with that if they don't like them by working to repeal them democratically.

Remember, of course, that unlike Supreme Court opinions, Congress' determination that something does or doesn't violate the 14th Amendment always leaves the issue open for legislative change if most people don't like it. That's how it's supposed to work in a republic, after all.

This is very drastic, and would be very fun. And for something so drastic, it squares pretty nicely with the text of the Constitution: "The Congress," after all, "shall have power to enforce, by appropriate legislation, the provisions of [the 14th Amendment]."

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