Constitutional posturing: Dems propose ending the Electoral College

The first day of any new Congress usually consists of a mixture of self-congratulation and posturing, perhaps more so when control of a chamber changes hands. Yesterday offered both parties an opportunity to do a little of both, and both parties had rewrites of the Constitution ready to set the tone for the next two years.

For Democrats, though, the tone for the next two years looks like sour grapes over the last two years:

Rep. Steve Cohen (D-Tn.), a vocal critic of President Trump, on Thursday introduced two bills to eliminate the electoral college and prevent presidents from pardoning themselves or their family members.

Cohen introduced the constitutional amendments on the first night of the 116th Congress, both digs at Trump.

Let’s start with the Electoral College repeal, which has been a rallying cry for progressives ever since Election Night in 2016 — and in some cases, Election Night in 2000 too. The framers of the Constitution used this method to ensure that states had a hand in selecting the chief executive, attempting to assuage concerns that direct election would create an impulse for a central government to trample on their sovereignty. (Little did they know that would happen through the judiciary instead, in decisions like Wickard v Filburn and others.)

These days, however, smaller states are more worried about ceding all influence over elections to the most populated states on the coasts. Where exactly would Cohen expect to get two-thirds of states to concede control over presidential elections to California and New York? Even if that magically got two-thirds of the vote in both the House and Senate, it’d be lucky to get ratified in one quarter of the states, let alone three quarters.

The pardon issue might get a little more traction. It deals with an actual issue at hand, not just bitterness over an election loss by a historically inept major-party candidate. It’s tough in principle to disagree with Cohen’s argument, at least in some part:

“Presidents should not pardon themselves, their families, their administration or campaign staff,” Cohen said in a statement. “This constitutional amendment would expressly prohibit this and any future president, from abusing the pardon power.”

Only the most pedantic could justify the authority of a president to pardon himself, and then not as a virtue but as the present constitutional reality. The dogma that no man is above the law is deeply ingrained in the American psyche, and the potential authority for any president to do so seems outrageous. (So much so that Richard Nixon didn’t attempt it, leaving it to Gerald Ford to handle after his departure.) It would take a constitutional amendment to erect that boundary, and that might sail through Congress at least if it was only limited to that. The more that boundary narrows, the tougher it will be to get ratified. If Cohen’s willing to limit it to the president and family members, it might have a chance, although ratification would likely take too long for it to impact Trump. Widening it out to campaign figures and administration officials won’t make it more palatable to those in the House and Senate who have been either or both for other presidential candidates and administrations.

Republicans got in on the constitutional-rewrite fun too. Sen. Ted Cruz and Rep. Francis Rooney (R-FL) partnered on a proposal for term limits on Capitol Hill, a GOP priority in the 1994 Contract with America that got conveniently discarded, along with lobbying reforms. This proposal might be more virtuous than Cohen’s Electoral College repeal but has even less chance of getting endorsed for ratification:

Republican Sen. Ted Cruz and Republican Rep. Francis Rooney proposed a Constitutional amendment on Thursday that would impose term limits on members of both houses of Congress.

The amendment, co-sponsored by Sens. Marco Rubio (R-Fla.), Mike Lee (R-Utah), and David Perdue (R-Ga.), would restrict senators to two six-year terms and House members to three two-year terms. A similar amendment was proposed by Cruz in January of 2017.

“For too long, members of Congress have abused their power and ignored the will of the American people,” Cruz said. “Term limits on members of Congress offer a solution to the brokenness we see in Washington, D.C. It is long past time for Congress to hold itself accountable. I urge my colleagues to submit this constitutional amendment to the states for speedy ratification.”

Ahem. Do the sponsors of this bill really think they can get two-thirds of their colleagues to vote to impose term limits on themselves? Regardless of the merits of the proposal, it’s not going to get adopted from the inside. A term-limits amendment, like a balanced-budget amendment, would have to originate in an Article V convention and then ratified by the states to bypass Congress.

The merits of this idea are debatable, too. (For one thing, why not a twelve-year cap on the House as in the Senate?) Where term limits have been imposed, they have rarely if ever produced a cleaner or more responsive legislature. In California, it shifted institutional knowledge from the legislature to the lobbyists. In Colorado, it produced a partisan swing but no real improvements on the complaints that drove it. The best term limit is still a ballot in the hands of an informed voter.

No need to worry, though; none of these are serious efforts. They’re tone-setters and nothing more, a kind of easy messaging that takes the place of actual reform. If you want the latter, start organizing an Article V convention — and then see just how much the states limit the range of action.