By Michael Pierce
This month, members of Congress have shown themselves paralyzed when it comes to protecting victims of sex trafficking, yet perfectly capable of acting to embarrass the President (or, as Obama argues, themselves). Less than two years ago, budget negotiations between Democrats and Republicans deteriorated so far that the Federal Government actually shut down, costing the country $2,000,000,000 in lost productivity.
The Washington status quo is unacceptable. But don’t give up hope. With one change to the timing of our federal elections—which would leave our constitutional structure, including separation of powers, intact—we could reduce the frequency of these short-sighted, irresponsible showdowns between Congress and the President.
In 2016, voters will elect a President, along with a House of Representatives, and 34 Senators. Lots of people will go to the polls, many more than in 2014’s midterms. As a group, those elected are ensured only two years together–a terribly short amount of time to grapple with the deeply complex problems facing America. With campaign season almost immediately looming for the newly-minted Representatives, the potential for compromise with the opposition becomes less palatable each day that passes. You can hardly blame them for grandstanding: the midterm electorate that will decide whether to re-elect them in 2018 will be much older and much more partisan than the general-election voters who elected them in 2016. It’s unsurprising that in midterm elections, the opposition party benefits–the partisans out of power are riled up–and this affects behavior in the preceding two years.
This result is inevitable given our current system of staggered federal elections, but that system is certainly not. The Constitution provided that state legislatures choose our Senators; we became frustrated with the process, and in 1913 ratified the Seventeenth Amendment, radically changing the structure of Senate elections by mandating the use of direct elections. We need another federal-election-changing amendment, one that improves the quality of our governance by lengthening House terms to four years, shortening Senate terms to four years, and starting them all at the same time. There would be no more midterms, just a mega-election every four years, in which a broad swath of Americans would send their favored candidates to serve in the federal government, giving them four years to work together before judging their performance. (If you want to keep the Senate as the more deliberative body, you could still maintain most of the benefits of this proposal by lengthening Senatorial terms to eight years, with 50 Senators up for re-election every four years, one from each state.)
These changes would send a more representative cohort to Washington for a longer guaranteed time to govern together. These cohorts would be elected at a single point in time, by a single electorate–one that is large and representative of the American public. Arriving in Washington, they would look around and realize that they are stuck with each other for four years. While not an eternity, this extended time period free from fundraising and campaigning would be more conducive to getting things done; there would be more breathing room between elections for negotiation. Most importantly, under this proposed system, everyone in the four-year cohort would be accountable for America’s performance in a four-year term: they’ll come up for re-election at the same time, and at that point Americans will have real power to render a verdict on their performance.
This last point requires explanation. In our current system, if there’s frustration with the President and his/her party, the only outlet for it in a midterm election is through electing a House and 33 or 34 Senators unsympathetic to his/her agenda; it’s a fairly impotent frustration, because newly elected Representatives will encounter a Senate in which two of every three Senators won election in a different year and a President who was elected by an earlier electorate, but one with devastating collateral effects (think government shutdowns). Class of 2014 Congressional Republicans and Class of 2012 Obama are operating on mandates: they’re just inconsistent ones. While newly-minted Representatives feel they must do what they campaigned to do, so does Obama. Our system sets up our government to fail.
It’s also important to note what this proposal wouldn’t change: namely, our constitutional separation of powers. The President would still be the executive and commander-in-chief, and members of Congress would still be legislators. Elections occurring at the same point in time might bring to mind a parliament, but besides the latter (separation of powers) distinction, our President would be elected directly by the voters, as opposed to merely leading the majority party. Thus national voters could emulate those in Massachusetts, and deliberately vote one party into congressional power, and a member of the opposing party as the President; this proposal allows for divided government.
Conservative skeptics might ask, wouldn’t these reforms ensure more federal government; isn’t the whole point of staggered elections to restrain its growth? No, it’s not; it ensures continuity of the Senate, but at the expense of accountability to the people. Having more meaningful elections every four years would not necessarily produce a more activist federal government; it would only produce a government that more accurately reflects what Americans want from their federal government: if “divided government” is truly what Americans desire, that’s what they’ll get under this proposed system. There’s an interesting analogy here from the private sector: in 2002, most S&P 500 companies had staggered terms for their directors (i.e. those sitting on the board of directors, essentially shareholders’ elected representatives)– like Senators, only one-third of them ran for (re-)election each year. Empirical research has shown that whatever positive this set-up provided in terms of cohesion was overpowered by the negative effects of weakened shareholder control (this claim is hotly debated): the shareholders, like midterm voters, could only express their displeasure through electing a minority opposition; they demanded change: now, only 12% of the S&P 500 have staggered boards of directors. We need a similar revolution in Federal elections.
The next two years will likely produce dysfunctional Federal government; our current system of elections almost ensures it. Midterm elections might not be the cause of all the dysfunction, or even the most important one (others may include campaign finance and resulting lack of trust in Congress) but they are a significant one, and they can be eliminated in a non-partisan way; we must again amend the Constitution to improve our federal elections.
Michael Pierce (HLS Class of 2014) is a judicial law clerk at the Massachusetts Appeals Court. He wrote a student note for HLPR’s Volume 8.