The only workable solution is for the States to use an obscure method of amending the Constitution to modernize the national election system bypassing Congress.
Most of what we see in national politics today can be reduced to aspects of what it takes to get and stay elected. I left my federal job in frustration last year for an intense, unsuccessful run for Congress in Washington State’s jungle primary as an Independent. It was very apparent to me as a candidate that the election system could be easily and simply modernized, if there was a way to get it done.
The paradox of Congressional approval ratings helps to explain what is happening. How can a Congress with approval ratings hovering near 10 percent re-elect 90 percent of the members campaigning in 2012?
This leads us to a constitutional amendment. The Supreme Court’s view is nothing substantial can be done on election reform because campaign finance, as well as media, are protected forms of free speech. A well-drafted amendment works around the Court.
Amendment movements are often viewed as fringe. The bizarre episode of the Prohibition amendment followed by repeal is a case study in how not to use the amendment process. Amendments adjusting the governing apparatus, in contrast, are within a well-established tradition in American history. An election reform amendment is in this tradition.
A National Election Reform Amendment (NERA) would have three components. Given the realities of modern elections, the goal of the amendment is to provide more freedom of action for elected officials once in office to act in the public interest.
First, the duration of campaigns for all national offices would be limited; early campaigning would be penalized.
Second, the general elections of the top two primary finishers in every national office would be publicly financed. Funding for primaries would be privately funded, but capped with full public disclosure.
Finally, third-party ads could not air during the campaign season, and any coordination with candidates or parties before the campaign period would result in forfeiture of public financing.
The obstacle to a NERA is Congress itself. Both the House and Senate must pass a constitutional amendment by a two-thirds majority and send it to the States where three-quarters must ratify it. There is no chance a NERA would be passed. Imagine 67 Senate Republicans and Democrats and 290 House Republicans and Democrats agreeing to dismantle their own chances for re-election.
There is a way around Congress under Article V of the Constitution. Two-thirds or 34 of the States can petition Congress to hold a constitutional convention. The delegates at the convention would draft the amendment. If passed by two-thirds of the delegates, in theory, then the amendment would go back to the States for ratification, as in the standard amendment method.
The States have nearly held conventions before. The Senate refused to take-up a women’s suffrage amendment as over thirty States petitioned for a convention. The Senate finally relented and passed the 19th Amendment. More recently, in the 1980s, Congress would not consider a Balanced Budget Amendment. Over thirty State petitions for a convention again accumulated. Congress ended up passing spending caps in the form of the Gramm-Rudman-Hollings Balanced Budget Act.
A State-led push for a NERA has two potential outcomes. It could pressure Congress to act on an election reform amendment rather than unleash the unknowns of holding a constitutional convention. It could also result in a constitutional convention, which would be a historic event. Both would start the process toward national election reform to strengthen the ability of elected officials to work together and act.
Windle is a former staff member on the House Appropriations Committee and independent candidate for Congress in Washington during the 2012 election cycle.