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How Can We Fix the Constitution?

Ruling the Future

A clever way to force Congress to come up with better rules for itself, starting with the filibuster.

Harry Reid
Harry Reid hasn't brought a budget to the Senate floor since 2009. Should we amend the Constution to fix how Congress operates?

Photo by T.J. Kirkpatrick/Getty Images

This month, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, moving up the date of the presidential inauguration, restoring the balance of war powers, and Supreme Court term limits.

Rules of Congressional Procedure (Article I)

The rules of procedure in Congress are often criticized but rarely reformed. The current version of the Senate filibuster, which effectively requires 60 votes even for routine legislation and confirmation of judges and executive nominees, takes a beating most often—though almost exclusively by advocates of the party against whom it is used. (The New York Times laughably has shifted its editorial opinion on the filibuster when party control of the Senate changes.)

Other congressional rules might also benefit from reconsideration—such as allowing seniority-based committees dominated by special interests to control legislation, depriving the minority in the House of any real opportunity to participate in lawmaking, and permitting passage of massive bills without making them available to the public in advance for comment. The problem is that at any given point in time, every rule predictably benefits one side (majority or minority) and hurts the other. Neither Republicans nor Democrats have a real interest in evenhanded reform. Either they are in the majority, and enjoy the benefits the rules bring to them, or they are in the minority and want to play tit-for-tat for the injuries done by the other side last time. A ready example is the Democrats’ extension of the filibuster to George W. Bush’s appellate court nominations in 2003, which Republican denounced at the time but (of course) are now more than willing to use against Barack Obama’s nominees. Now it’s the Democrats’ turn to complain of unfairness and gridlock, but mark my words, if control of the Senate shifts again, they will return to lauding the filibuster as a bulwark against extremism and a vital protection for minority rights.

Trying to establish fair rules when everyone knows who the winners and losers will be is not possible. It’s like deciding which cards are wild in poker after the players see their hands. I do not know what rules are optimal (though I am inclined to think the filibuster should be reformed but not entirely eliminated). But I believe we would get better rules, and a more functional Congress, if Article I, Section 5, Clause 2 were amended to read:

Each House may determine the Rules of its Proceedings by vote of a majority of the whole number of its members, provided that such Rules shall take effect three years following their enactment.

This proposed amendment would have two effects. First, it would require each House to set rules behind a Rawlsian veil of ignorance. Before the rules go into effect, there will be an intervening election, and neither party knows who will prevail in it. This gives both sides an incentive to support rules that are optimal for both majority and minority. Second, it ensures that any limitations on majority rules, such as the filibuster, will be enacted by a majority and can be changed by a majority.  The result should be fairer rules of procedure and a more functional Congress.

Length of Presidential Term (Article II and Amendment XXII)

I propose amending Article II, Section 1, and Amendment XXII as follows:

The President of the United States shall serve a single six-year term of office. In the event that the Vice President, or the next person in line, becomes President pursuant to Amendment XX, he shall be eligible to stand for election for a full term only if he has served less than three years as President.

I have three reasons for this proposal.

First, the last 50 years has shown that even the best presidents and administrations lose steam and run out of ideas during their last two years in office. Worse, they often become mired in debilitating scandal (such as Watergate, the Iran-contra affair, or Monica Lewinsky). Six years is long enough.

Second, eliminating re-election campaigns makes it more likely that the president will be able to work constructively with Congress. The president will be less reluctant to propose measures that are public-interested but politically risky, and members of the opposite party in Congress will be less reluctant to work with the administration to enact them. The current system gives the opposition party an incentive to undermine the president and make him look bad. If the president cannot stand for re-election, this incentive will be reduced, albeit not eliminated.

Third, I would shorten the period during which a replacement president, who was not elected to the office would serve, as a means of strengthening democratic legitimacy. Vice presidents are often accidents waiting to happen. The last sentence of my amendment prevents any person from serving more than a total of nine years as president.

The Budget Process (New Amendment)

The Budget Act of 1974 was an eminently sensible piece of legislation. By requiring the president, the House, and the Senate to enact a budget containing estimates of outlays (by functional category), revenues, and necessary increases to the debt ceiling for the coming fiscal year, the act forces each of the major players to plan for the future and to inform the public accordingly. Unfortunately, there is no enforcement mechanism. The Senate has declined to pass a budget since 2009, enabling Senate Democrats, and the Obama administration, to attack the budget passed by the Republican-led House without presenting an alternative.

I propose a constitutional amendment embodying the substance of the Budget Act, but with the following enforcement provision:

On or before February 1 of each year, the President shall submit to Congress a proposed budget for the following fiscal year, projecting outlays, revenues, and necessary increases in the debt limit, if any, in a form to be specified by Congress. On the first legislative day after April 1 of each year, it shall be in order for the majority and minority leader of each House to present proposed budgets satisfying these requirements, and to call the question. Whichever of these proposed budgets receives the higher number of votes, whether or not a majority, shall be deemed to have been enacted.

Under this proposal, if the majority of either House declines to bring a budget to the floor, as Majority Leader Harry Reid has done in recent years, the minority will be able to pass its own budget. Presumably, that will be sufficient inducement to force the majority to comply.

This should lead to greater budgetary responsibility—and greater accountability to the public.

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