Fix Congress? No, Demolish It!
Amending the Constitution is the only way to make Congress be the people's house
» KEY POINTS
- Congress cannot represent the will of the people because the Constitution is irreparably flawed. Only by Amending the Constitution can we better the Legislative Branch for everyone.
- The House of Representatives needs to be changed from a “winner takes all” system using voting districts to one with a proportional mix for all the varied political views in America.
- While the Senate needs to remain a State check on Federal power, that does not mean each State should have equal power no matter its size and/or population.
Congress is not the will of the people.
There are many ways to divvy the American populous up. However, no matter which way you do Congress does not align to the unique mix of people in this country. Whether it is age, gender/sexual identity, race, religion/religiosity, age, education, earnings, net worth, or any other superfluous factor—the members of Congress are as far from the mean as could be. Even something as simple as political alignment completely misses the mark!
We could go much deeper into specific policy beliefs, desires for the direction of the country, and other socio/economic/physical differences, but that is unnecessary. The point is just to show that no matter which way you slice it, Congress is not in line with those they are supposed to stand for. If the will, setup, and diversity of the people is not reflected in the government, then how can the government give back to the people what is needed?
To be clear, much of this is not Congress’s fault. Members of Congress should not feel shame or be diminished because they happen to be part of group that is severely over-represented. Being more educated, making a fair wage, following your beliefs, expressing your culture and ethnicity—these are all things that should be pursued by those who desire it. In a way, Congress is as much of a victim as the citizenry because if there are no representatives to express other views, how can these incumbents possibly respond? If it is not part of their life experience and there is no one in Congress to express another perspective, how would they know?
There is a systematic issue here. No amount of law, policy, redistricting, quota filling, or any other “bubble gum and masking tape” method can change the current situation. All of those solutions can make slight tweaks but will still leave at least half of America without someone to speak on their behalf. The Legislature of the United States of America is broken at its core because of the compromises that were made to get 13 former colonies to agree to join and stay in a single federalist union. We have had over 230 years to experience the consequences firsthand.
Even if Congress functioned perfectly, the parties worked together, and legislation passed regularly, they would still have no incentive to fix these glaring holes. Instead, our Representatives and Senators benefit from a broken system that keeps them indefinitely employed, well paid, and with a modicum of power. No, in order to fix these base concerns, we need to Amend the Constitution and bring Congress back under WE THE PEOPLE.
» WHOSE HOUSE?
Though the Founders wanted to avoid political parties, it is just not in human nature. Homo Sapiens will create groups no matter what, and we must accept that it is always going to be this way in order to move on. While the purpose of a Political Party is to group together like-minded people into a single force, the two main parties in the United States are so large that there is no way they can cover the many nuanced and various viewpoints of the American people. One of the biggest lies these parties tell is that there are “two sides to every issue”. In reality, most concerns have a rainbow of different perspectives and approaches, and others have almost universal agreement.
If we want the House of Representatives to be a reflection of the people’s will at the Federal level, we must Amend the Constitution to make it so:
The House of Representatives shall be composed of Members chosen every fourth year on the even years opposite elections for President and Vice President by the People of the several States and Territories.
The people of the United States and its Territories shall vote for the Political Parties directly.
Today, the entire House of Representatives is re-elected every two years. Because of this cycle and the focus on individual races, most Representatives spend a majority of their time campaigning and fundraising instead of governing. Therefore, let us first aim to smooth out the schedule and make it every four years instead; as well as time those elections to be opposite the ones for the Executive Branch. That will give the people a voice during the middle of a President’s term and they will have a say about what their priorities are: do they want more legislators in line with the President to push forward the Executive agenda, or do they want to rein the office in? And this would for the first time include the 4.4 million people who live in the Territories*—people who have no voice in Congress at all right now.
[ * Note that for our purposes, the District of Columbia is being considered a ‘Territory’ even though technically it is a ‘Federal District’, something quite distinct. ]
They are not the only ones who have never had a voice in Congress, though. As noted above, our current “Winner Takes All” system is not getting us anywhere near the breakdown of the American populace by any factor. Many other western-style democracies elect their legislature by Political Party and not by individuals that cover specific oddly-shaped slices of the country. The House of Representatives should follow a similar methodology in order to align to the will of the people. In other words, it will not be a zero-sum game of winning and losing, but a distribution game by the intent of the people. This would bring further engagement of the citizenry because people would have actual representation no matter where they live and what their beliefs are.
Here, let us return to the political affiliation chart from the top of this chapter, but with some modifications. If we extrapolate a few assumptions, we can see a couple of different scenarios in how a straight party election would result in a very different distribution in the House of Representatives:
- Both Scenarios: 95% of Democrats and Republicans vote for their preferred party, 2% of Democrats and Republicans vote for the other party, 3% of Democrats and Republicans vote for Third Parties, and all Unknowns vote for Third Parties.
- Scenario 1 [Independents Lean to Major Parties]: 40% of Independents vote Republican, 40% of Independents vote Democrat, 20% of Independents vote for Third Parties.
- Scenario 2 [Independents Lean to Third Parties]: 20% of Independents vote Republican, 20% of Independents vote Democrat, 60% of Independents vote for Third Parties.
In this, we get two potentialities where Scenario 1 is most Independents lean either Democrat or Republican and Scenario 2 where a small majority of Independents lean Third Party. This results in a striking re-alignment of the House of Representatives:
Even in Scenario 1, neither the Democrats nor the Republicans would have been able to take single Party control of the House. In order to pass legislation, they would have to work with others! This is the utmost critical element of this process: breaking up the oligopoly of the two major Political Parties and getting more competition and diversity. Instead of extremists on either the left or the right being able to control the agenda for as long as they are in charge, discussion and deals among many parties with particular needs would be necessary.
The number of Members of the House of Representatives shall be no less than one hundred. The Members shall be determined by taking the number of votes for a Political Party and dividing among total votes to get a proportional vote. Those attaining at least one percent of the vote shall receive a Seat and shall receive an additional Seat for each percentage point above that. Partial percentages shall always be rounded up to the next highest full number. With the number of Seats by each Party set, the Members shall be filled by the Lists provided by the Political Parties.
Political Parties shall create Lists of one hundred persons in order of preference to be considered for Membership.
Just to clear this up, there are currently 435 members of the House of Representatives as that is what Congress decided it should be, not because it is mandated anywhere in the Constitution. As such, let us go through a couple of situations to see how this new math could result in different mixes:
- If one party receives 99.00...1% or higher of the vote, they would receive 100 Seats, which would be the absolute minimum. Since no other Party would have passed the 1% threshold, they would be alone in the House of Representatives; thus showing why a list of 100 people is necessary as it is the maximum number of potential Members that a Party can receive.
- If 99 Parties receive 1.00...1% of the vote, then all other Parties cannot reach the 1% threshold. Since all percentages are rounded up to the nearest whole number, each of the 99 Parties would receive 2 Seats. In this situation, the House of Representatives would have a maximum of 198 Members.
Both of these conditions are highly unlikely to happen. In the 2018 election, no third party made the 1% threshold by themselves so that election would have ended up with 55 Democrats and 46 Republicans. However, Third Parties receive so few votes because of various methods of suppression, not the least of which are gerrymandered districts. Since there is not good enough data on Third Parties, if we go back to Scenarios 1 and 2 from before we could have ended up with any of these other situations (and many in between):
The last situation is particularly interesting in that it makes all Other Parties the largest party by Members. While none individually would be the largest Party, by design it gives them an outstripped power so that the larger Parties could not run roughshod over them and dismiss their claims. In other words, it is a check within the House of Representative to make sure those in the minority are still heard and must be worked with.
The Government of the United States and the Governments of the States and Territories shall provide no support to Political Parties for determining their Lists and the Political Parties are solely responsible for determining the method of developing their Lists. Nor shall the Government of the United States nor the Governments of the States and Territories provide any other type of support or resources for internal Political Party decisions.
There shall be no criteria for a Political Party to appear on the ballots save producing the List of candidates, though the List must be limited to those people who meet the criteria for the House of Representatives as written in the Constitution.
Part of the issue with the Democratic/Republican oligopoly is that they have created rules that have the Federal, State, and local governments spending time, money, and resources on what should be internal Party responsibility. In particular, the fact that Primaries are conducted as if they are part of the election system and that the government should support them is completely the antithesis to equal protections.
Why should the government spend any time and resources on helping a Political Party decide who is going to run in their spots for an election? That is purely a Party responsibility, and as such this clause makes it clear that there is a separation of roles between the government and those running to be in it. The act of coming up with a list of candidates and putting them in order of preference is a methodology that the Parties must decide themselves. If they need to go through a Primary process, it is up to them to create a voting system and pay for that with internal funds. Neither the United States government nor the governments of States, Territories, Counties, Cities, or any other division should have a responsibility for determining how an—essentially—nonprofit organization makes management decisions.
Further, in order to fully remove the Government from being involved with Political Parties, all criteria for what a “Political Party” is needs to be eliminated. One of the major issues for Third Parties like Libertarians, Greens, and others is that they must go State-by-State and meet criteria that may be impossible unless they were already on a ballot. And even after they pass those criteria, they can still be capriciously removed and have to go through the whole process all over again.
When vacancies happen in the Representation the Parties elected shall fill those vacancies from the next eligible and available names on their Lists.
Finally, instead of expensive new elections in an area and a long time without some people having representation, a stability is created. With the pre-defined Lists, the next people in line are already there if for any reason a replacement is needed.
» MORE THAN MITTENS
As set up today, the Senate makes absolutely no sense. Every State has two Senators no matter if there are more sheep than people or the amount of land is bigger than ten other States combined. Meanwhile, the largest Territories that are physically and population wise bigger than half the rest of the country have no say whatsoever. It is an incredibly imbalanced solution to a real concern.
The genuine issue that the Senate tries to resolve is that the States need to be a check on the power of the Federal Government so that the latter does not become too authoritative and trample on their rights. While this was the gravest concern in the late 18th century, this is still a logical—though not as pronounced—consideration even today. In order to balance out the will of the Federal Government, there must be a counter. However, the counter needs to be fair to all constituents within it.
The Senate of the United States shall be composed of at least two Senators from each State and Territory with permanent population, elected by the people thereof, for four Years on the even years opposite elections for President and Vice President.
The first change is the relative number of Senators by saying that each State and Territory must have at a minimum two. Once again, Territories are included so that the millions of people living in those places and the thousands of square miles are not excluded. However, unlike the House of Representatives’ Amendments, there is an important distinction in Territories that have a permanent population since there are several more that do not have any people at all. These places do not need special attention because there is no real citizenry to represent and the Federal Government already manages the land.
Beyond the structure, much like the House of Representatives, the Senate would be elected every four years in totality and once again on the even years opposite the Executive Branch. This would ensure that the entire Legislature is renewed during the term of the President and serve as a check on or expansion of power as defined by the will of the people. Using this method would make each 2-year election cycle incredibly important because either it would be for the President/Vice President or all Congressional positions would be filled at once.
The total number of Senators received by each State and Territory shall be one Seat for each State and zero Seats for each Territory; plus a proportional distribution of one hundred Seats based upon the total population of the States and Territories; plus a proportional distribution of one hundred Seats based upon the total land area of the States and Territories; such that each State shall have no less than three Senators and each Territory shall have no less than two Senators.
Continuing on this path, there would then be a distribution of available Seats. While we have previously condensed the House of Representatives, we have expanded the Senate within certain confines. Where the House of Representatives needed pruning for efficiency, the Senate needs expansion to limit power mongering.
The first part is saying that if the location is a “State” it would receive a Seat and if it was a “Territory with Permanent Population”, it would not. There are certain rights and responsibilities that come with being a full-fledged State and this is one of those areas where it makes sense to include a distinction to incentivize Territories to become full States.
That is not to say Territories would not receive full representation, though. As the next part lays out, there would be 100 Seats to be distributed by physical area and another 100 Seats to be distributed by population. Given the current layout of the United States, this would result in a total of 250 seats—which would go up slightly by 1 as Territories became States or a new State were admitted to the Union. Even breaking up California or Texas would have a minimal impact compared to what would happen today (each new State getting two Senators would be replaced with one new Senator and a redistribution of the limited area and population seats).
What you will notice is that this re-imagining of the Senate is rather silent on the method by which the distribution is to happen, and this is intentional. Trying to use straight methods on limited seats always creates exceptions, so therefore it would be up to Congress to determine the necessary formula.
As an example, I have used a method where rounding at a particular point for area worked fine, but left me with one extra Senator for population no matter what I did. In the end, looking at overall population criteria, Indiana had to have one Senator removed. Apologies to Indiana. The result was this:
Of the 56 States and Populated Territories, exactly half (28) ended up with 2 or 3 Senators. Among the States and Territories at the top of the charts, Alaska is by far the biggest winner expanding to 19 Senators based almost solely on its massive land area (which might make a case for splitting Alaska up, but that is not a concern for this particular argument). Outside of Alaska, though, the real winners were as expected with California and Texas each receiving 16 Senators—the exact outcome one would surmise for States with such vast amounts of area and populations to go along with them. The next highest States were Florida at 8 Seats and New York at 7 Seats. Though a precipitous drop off, it does reflect fairly the two factors of population and size. From there it continues to drop off so that States with large populations and small sizes (like Massachusetts) share the same number of Senators with those that have small population and large sizes (like South Dakota). None of the Territories escaped their 2-Seat minimum.
Per above, this is just an example and Congress may make other decisions on distribution, but it shows the methodology in play. It makes sure States and Territories that have more land and people in turn have a larger say while also making sure that no area has too little say or blocks of votes. Yes, it is not completely even, nor is it 100% fair; it is just intended to level the playing field without going overboard to create perfection.
The legal body of each State and Territory shall determine the method by which Senators are elected.
Critically different compared to the House of Representatives, though, is that the Senators are selected in a method decided by the States and Territories themselves. Once they know how many Seats they have, the method they choose to fill those positions is up to them save for being elected by the people (already an Amendment). Now, it would be hoped that they would fill them in a distributed manner akin to the House of Representatives, but that is a regional decision that must be up to each locale, as is the right of a State/Territory.
» PUTTING CONGRESS IN A BOX
With these Amendments to the Constitution, we have completely changed the makeup of Congress so that it is more balanced and a closer reflection of the will of the people. Now, getting them to do their jobs once elected... that is a different story.
The above piece is an excerpt from Always Divided, Never United: And Other Stories During a Time of Pandemics and Politics by J.P. Prag, available at booksellers worldwide.
Learn more about author J.P. Prag at www.jpprag.com.
An earlier version of this article appeared on Medium.
About the author
J.P. Prag is the author of "Always Divided, Never United", "New & Improved: The United States of America", and "In Defense Of... Exonerating Professional Wrestling's Most Hated". Learn more at www.jpprag.com.