Do we need a new constitution?

 The events in Washington over the last weeks and months and the complete failure of the Supercommittee to reach any agreement have demonstrated to most Americans that our Congress no longer works.  In a recent poll conducted by CBS News/New York Times 91% of Americans disapprove of the way Congress is doing its job.  So, is it time to stop complaining?  Do we need something new?  Do we need a new constitution?  Is it time for a new constitutional convention to draw up a plan of government better suited to the 21^st century and the political, social, economic, environmental, and international problems we face today? Is it time to give up on Congress fixing itself?  Is it time to re-imagine how a democracy should and can work in the 21^st century?  I think so.

Every country comes to a moment when the citizens must decide whether the form of government they have is working the way it needs to work.  If not, they must decide whether they need to make a change and whether that change can be simple adjustments to the current form of government or whether major change is needed and they need to scrap what they have and start over.  I believe the time to start over with a totally new constitution is now.  We’ve done it before.

Our current constitution was written in 1787 by a group of practical men attempting to address governmental problems of their time caused by the limitations of the constitution of that time, the Articles of Confederation, which clearly was not working.  The problems the nation faced were many and growing.  Many were economic.  Although some areas of the country were prospering, much of the country was enduring a depression.  The national government, which had borrowed heavily to finance a war, was struggling to find a way to pay off its debts and, indeed, even to find the money to pay what it owed to its soldiers.  The states were having difficulty paying their own debts.  Many Americans felt that the taxes they were required to pay were unfair.  Many Americans were in danger of losing their homes and farms because they could not pay their debts.  Congress couldn’t raise the necessary funds to finance its operations and pay the country’s debts.  Congressional procedures made it nearly impossible to get anything done.  A few delegates could block almost any legislation.  The imbalance of power between the federal government and states made the management of interstate commerce and a national economy almost impossible.  The problems were much like those we face today. 

Many of the politically astute at the time came to the conclusion that the country’s constitution was not working.  They decided that tinkering with the existing constitution would not be enough.  They decided to do the brave thing even at the risk of being called traitors.  They decided to write a new constitution.  Meeting from May to September in 1787, often in sweltering heat, fifty-five men constructed a new constitution for our nation, the one we have now.  They then sold the country on the wisdom of adopting their new constitution.   It is testimony to their accomplishment that the basic structure of the government they designed has endured to this day, although substantially altered, changed in ways they could not have imagined and indeed, probably would not have liked.  Although the document they produced is revered and, as I said, was a remarkable achievement, it is an 18^th century document based upon 18^th century thinking about governments and governing.

We must devise a new form of government better suited to the realities of our time.  We must devise a form of government that works.  We must design a form of government where, unlike today, it is possible to get things done in Washington. 

There are many problems with our existing form of government that make it difficult and often nearly impossible to get anything done.  For any piece of legislation to get passed, it must be approved by the U.S. Senate and House of Representatives and signed into law by the President.  It then must withstand any constitutional challenge before the Supreme Court. 

Today, Senators are elected statewide and serve the interests of the voters in their states.  Representatives are elected in districts and serve the narrow interests of voters in their district.  Increasingly those districts are gerrymandered to be safe for the incumbent and party.  Whoever wins the party primary wins the general election, so candidates take whatever extreme policy positions are likely to appeal to the ideology of the dominate faction in the district.  Once elected, they have no incentive to compromise or work across party lines for the good of the nation and, in fact, are punished if they do so.

The President is elected nation-wide, not by a majority of the popular vote, but by a majority in an arcane electoral college which allocates votes to states according to their number of Senators and Representatives.  Consequently, the President doesn’t serve the interest of the nation as a whole but rather the interests of the voters in states with the most electoral votes, particularly in swing states with voters who can be persuaded to switch parties from one presidential election to the next.  The President knows it is politically safe for him to ignore the interests of small states and states that are known to be safe for his party.

Members of the Supreme Court are appointed by the President and confirmed by the Senate often because they share the President’s and majority party’s ideological and/or policy preferences.  Like the President, Supreme Court justices are supposed to serve the national interest but often they serve the ideological/policy preferences of a President and Senate that has long vanished from the national stage. In recent years, members of the Supreme Court have abandoned any pretext of impartially in favor of promoting a particular ideology and/or partisan interest.  Some have even endorsed a particular ideological point-of-view by participating in organizations and attending meetings of groups devoted to gaining control of government to advance a narrow view of the role of government.

To make matters even more complicated, the President, Senators and Representatives serve different terms.  Representatives must stand for election every two years.  Every six years 1/3rd of Senators must face the voters and every four years we vote for a President.  Supreme Court justices serve for life.  Senators, Representatives, the President and members of the court thus operate on different time horizons.

Political campaigns at all levels have become increasing expensive.  Consequently, candidates spend a considerable amount of time and effort simply raising a campaign war chest.  Fund raising doesn’t end with the election.  In fact, today Presidents, Senators and Congressman spend more time raising money for their next campaign than they do legislating.  Rich individuals and large corporations take advantage of this ongoing, desperate search for campaign funds to push their own narrow policy interests.  The corrupting force of money for influence is stronger than ever.

Often the party that controls the House is different from the party that controls the Senate.  Even when the House and Senate are controlled by the same party, the president may be from a different party.  There may be and often are sharp ideological differences and policy preferences between the two branches themselves and between the Congress and the president because of the way members of Congress and the president are elected and the frequency with which they must stand for reelection. 

Additionally, the rules of order in the two houses of Congress differ so that the very path a bill has to negotiate to become law is quite different.  For example, Senate rules concerning cutting off debate/filibuster, make it impossible to get controversial legislation passed without a super-majority of 60 members voting in the affirmative. 

Finally, since the justices on any particular sitting Supreme Court have been appointed by different presidents and confirmed by different Senates over what may be decades, the court itself may be severely split ideologically making unanimous rulings difficult, if not impossible.  Consequently, laws may be upheld or declared unconstitutional by the thinnest majority.  Additionally, at any time the court may be and often is significantly out of step with the prevailing political mood and wishes of the president, Congress and American people. 

Beyond these institutional barriers there are the barriers caused by individual and collective competing interests of a pluralistic and ever more fragmented society.  For all of the people who at any given time are suffering because of the way things are and hoping for change, there are a smaller but often richer and more powerful group who are prospering from the way things are and are determined to see that no change occurs.  The closer advocates of change get to making change happen the more determined the opposition becomes.  And, since change always involves a certain amount of the unknown which most of us find frightening, those opposed to change usually have an easier time convincing us to do nothing.  They have the fear of the unknown on their side. To get things done advocates of change have to overcome all the incentives built into the system to do nothing. Whenever anyone proposes a major change in public policy, they immediately encounter resistance from those who are threatened by and/are frightened by the change.  Momentum starts building to oppose change and it gains strength like a ball rolling down a hill gather anti-change speed as it goes.

Today the challenge of legislative accomplishment looms larger than ever.  Factions proliferate.  The corrupting force of money for influence is stronger than ever.  The manipulation of the media is pervasive and more sophisticated.  The use of known psychology of influence is more problematic.  Propaganda artfully disguised as truth is more widespread.  All sides on every issue use these weapons of persuasion resulting in every side persuading just enough of those in the middle to keep the other side from winning.  No side wins and we all lose.  We cannot go forward, not because we have no forward path, but because we have multitudes of paths all blocked by one interest or another.  We are too often at a stalemate and our form of government is largely to blame. 

Congress can work.  In my newest book, Getting Things Done in Washington, I tell the story of men and women who achieve great legislative victories and changed our country forever and for the better.  I extract lessons we can learn from their accomplishments, lessons that we must learn if we are to get anything done under the present system.  However, we may need to do more.  We need to start talking about major change.

The debate we should be having isn’t about debt, spending, deficits, regulations or even jobs.  It should be about our Constitution.  Washington isn’t broken.  Our Constitution is broken.  More precisely, our Constitution has outlived its ability to function.  We’re stuck with an eighteenth century form of government in the 21^st century. We need a new form of government. I’m proposing that we begin a national discussion about what form our new government might take.  The time to begin re-imaging America is now. It is time to consider a change or many changes, some major and some minor. 

Here are a few of the changes in our form of government we might consider.

• We might change the length of terms of office for President and Congress with a provision that no one could serve more than one term and that the President and any member of Congress could be required to face a recall election upon the petition of a certain percentage of eligible voters.  For example, why not have the President serve one 8 year term, Senators one 12 year term and Representatives one 4 year term?  Maybe if those who ran for office could not run for the same office again that they wouldn’t have to spend so much time raising money for their next campaign.  They could folks on getting things done and solving the nation’s problems.  Would longer terms hurt or help?
• We might scrap the presidential form of government altogether in favor of a parliamentarian system with prime minister.  Under such a system, the ruling party would have to either obtain the support of a majority of Americans or build a ruling coalition with other parties.  Would a parliamentarian system be better than the one we have?
• We might outlaw gerrymandering by requiring that Congressional districts adhere to existing local government boundaries so that counties, parishes and cities could not be split.  Would it help if there were no “safe” seats?
• Once again we might require members of the Senate to actually take to the floor of the Senate to mount a filibuster and place a time limit of the maximum length of a filibuster and/or provide for a sequence of votes to end a filibuster, each requiring fewer votes than the previous.  Would this cut down on the use of the filibuster in the Senate?  Would more get done?
• We might require members of the House and Senate to reside full time in Washington during their term of office, perhaps living in government housing so that once again members of opposing parties get to know each other as individuals instead of only as a member of the opposition.  Would it help if Congressmen and Senators their spouses got to know each other, if their kids played with each other?  Would they better understand each other?  Would they be more willing to compromise?
• We might require Congress to be in session eight hours per day with all members in their respective chamber and/or their office or a meeting room.  Short breaks could be allowed several times a year so members could return home to meet with their constituents.  Would making our representatives spend more time in Washington result in them getting more work done?
• We might severely limit campaign contributions and allow only individuals to make contributions.  Corporations, organizations and groups might be forbidden from contributing financially to campaign and/or offering non-monetary support. Pacs, Super-Pacs and all such organizations might be outlawed.  Is there a way to make Congressmen and Senators work for their constituents and not the interest group or groups with the most money?
• We might apportion the 100 Senators by population so that large states would have more than two Senators and small states might share a Senator.  Would that make our government more representative?
• We might have both a President and Prime Minister.  The President could handle foreign policy and serve as Commander-In-Chief of the armed forces.  The Prime Minister could handle domestic policy and direct the law making process.  We might allow the Prime Minister or President to manage the legislative process by limiting debate on a bill, limiting amendments to a bill or banning them completely, and/or declaring a bill critical to the national interest and therefore considered passed if not blocked by Congress with a certain time frame.  Is the job of President too big for one person? 
• We might give the President or Prime Minister the power to dissolve Congress and call for a special election in the case of gridlock or we might allow the President or Prime Minister to bypass Congress altogether and call for a special national referendum.  Would that help or hurt?

 These are just some of the changes we could consider.  There are many more.

Let me know what you think.  Is it time to start a dialogue about a new form of government/a new or greatly altered Constitution?  I think so.  I say, let the debate begin.  Do you agree?