Bigger U.S. House could renew fading Congress

 

Gordon L. Weil

Jared Golden is trying to close a circle that’s as old as the Constitution.

As one of Maine’s U.S. House members, he wants the House to take a new look at an old subject.  He has proposed that the House of Representatives should consider adding members.

During the drafting of the Constitution, the Framers debated the size of the House.  The original argument was so heated that it was the sole issue that caused George Washington to speak out at the Constitutional Convention.

How many people should be represented by a member of the House?  Too few would be undemocratic and but too many might be hard to manage.  James Madison, the chief drafter and later the fourth president, argued the problem would solve itself.  As more states joined, the House would naturally grow.

That worked until 1900, when the number of members stopped at 435.  In 1929, it was formally frozen there.  When Oklahoma, New Mexico, Arizona, Alaska and Hawaii had joined, their seats were taken from other states.

The result is that the number of people in any single House district is now larger that the entire population of some states.  Each Maine district includes more people than the entire population of the state of Wyoming.   The math shows that a voter in Wyoming has more power than a voter in Maine.

An easy path to voter equality would be to set the population for each district across the country at the population of the smallest state, Wyoming.  I calculate that would increase the House to about 573 members, an added 138 seats.  Even a larger House could make sense.

Adding new states should mean more seats were added, as originally intended.  The number of House seats should also increase as the national population grows. The purpose should be to keep the House representative and its members in touch with voters.

That increase would still leave the U.S. with a higher population per voter than any other major nation.  Citizens would remain distant from their representatives, and members might remain limited as true representatives of their people’s pulse.

One advantage of expansion would be the need for thorough redistricting into smaller districts.  That would make racial or political gerrymandering more difficult by making districts more compact. And it would certainly open the way for many new faces in Congress, which could enable more women and minorities to gain seats.

With a larger House, each member would not need to be assigned to several committees. Assigned to fewer committees, they would have more time to become more expert.  There might also be more committees or subcommittees, allowing each to have a far sharper focus than is possible today.

House expansion, allowing members to become more expert on specific subjects, is not political daydreaming; it could turn out to be critically important.

The Supreme Court is moving steadily toward stripping regulatory agencies of their independent powers. When it completes its works, perhaps quite soon, their decision-making powers would end up with the president.  Yet regulation is nothing more than powers that Congress could itself exercise by law.  Congress, not the president, could take on more responsibility.

A larger Congress should include enough members that focused House committees could take on more detailed decision-making.  Such targeted committees could produce strict, general rules, allowing less room for special interests to work out deals with regulators behind closed doors. If Congress fails to act, it will continue to lose its powers to the president.

There’s another benefit to the proposal for expanding the House.  Many want the electoral vote for president to better align with the popular vote.  One major reason they can misalign is the unbalanced voting power of some states over others. Each state’s electoral vote is the sum of the number of its House and Senate members.

If the House were larger, the Electoral College would be larger.  The number of voters per electoral vote member would be closer to equal than it is now.  With electoral votes better distributed based on population, the electoral vote will come closer to reflecting the popular will. 

Of course, each state would retain at least one House seat and two senators, no matter its population.  That’s what the Constitution requires and would prevent a fully popular vote for president.

While amending the Constitution is almost impossible given today’s political divide plus and the growing efforts by the Court to apply its constitutional views, some issues like term limits or maximum ages of officials cannot be addressed. But Congress can change the number of House members, which could breathe some new life into an old system.

Unlike many of his colleagues who routinely accept the current system, Golden has a good idea that could produce major bipartisan reform.  It’s worthy of study and action.

'Deep state'over shadows election; it's about presidential power

Gordon L. Weil

The “deep state” is neither deep nor a state.

Let’s “drain the swamp” to wash the mythical “deep state” down some cosmic hole.

If you succeed, what’s left?  Probably a smaller swamp.  And a one-person government operating openly to serve the purposes of that one person.

That’s what people mean when they warn about Donald Trump being a threat to democracy.  The American form of democracy is really a myth in his view, and the country is controlled by a hidden alliance between anonymous government officials and outside interests pursuing their own agendas. 

The “deep state” conspiracy lacks evidence and is designed to stir what a renegade journalist once called “fear and loathing on the campaign trail.”  This column now reveals the people behind the deep state: two U.S. presidents.  Ever hear of Chester Arthur?  Or Grover Cleveland?

In 1871, President Arthur, a Republican, took on the so-called “spoils system,” derived from the saying, “to the victor go the spoils” – if you win the election, you can shape the government to your will.  Too bad for people who don’t agree with you; they lose the protection of a government meant to serve all.  It was a form of legal corruption.

Arthur launched the civil service, a continuing corps of officials who maintain basic standards and operate essential programs, regardless of who is president.  The civil service, composed of government professionals rather than political loyalists, would allegedly become the in-house half of the deep state. 

A few years later, President Cleveland, a Democrat, approved the first independent federal agency, designed to regulate interstate railroads.  Independent agencies, run by expert panels with both parties represented, came to control complex matters beyond the ability of Congress to monitor successfully.  These experts cannot be removed for purely political reasons.

Trump doesn’t like the civil service or independent agencies. 

He seems to believe that the supposedly neutral civil service harbors people who oppose his policies and work to undermine his efforts.  His suspicion of barely hidden partisanship may be fueled by the heavily Democratic vote in D.C. 

The simple solution would be to strip people of civil service protection and replace them with loyal followers of White House policy rather than congressional intent.  That would expand presidential power.  Each election could result in sweeping changes in government with little consistency or reliability over the years.

As for independent agencies, a president might be able to overrule or influence their decisions.  Presidential power would come to dominate independent agencies, which in reality exercise delegated legislative power.  The shift of power from Congress to the president would continue.

But, even more significant, is the assault on independent agencies by a conservative Supreme Court, dominated by Trump’s appointees.  The Court is now severely weakening independent bodies, and this term will consider a case that could result in ending their regulatory authority.

Previously, the Court had allowed expert agencies to interpret the details of the laws under which Congress assigned them regulatory responsibilities.  The Court has now decided that the agencies should not have such powers.   Who can determine the meaning of the regulatory laws?  Why, it’s the courts.

The problem is that the courts lack expertise. In a recent majority decision, one Supreme Court justice mistook nitrous oxide for nitrogen oxide, substituting laughing gas for a dangerous chemical.

Aside from overruling the expertise of independent agencies, whose knowledge is beyond the abilities of the courts, the Supreme Court will now consider whether their ability to punish violators is beyond what the Constitution allows.  It could decide that such authority rests only with the president and the courts.

These attacks on neutral and independent components of the federal government are an attempt to strip Congress of the lawmaking power given to it by the Constitution.  The assault has been made possible by Congress itself shedding its authority, dodging major decisions and leaving them to others.

The elections will give people the chance to decide if they want a smaller government that offers them less protection and less regulation or the current system, as imperfect as it is.  Whatever the outcome, popular disapproval of Congress sends the message that the system needs reform.

The most obvious improvement would be for the unpopular Congress to begin doing its job. Many judgments now left to civil servants (those dreaded “bureaucrats”) and independent agencies could be eliminated by more simple and direct legislation, denying the special interests’ deals by not allowing for exceptions or special situations.

That could help ensure that the unseen parts of the deep state – corporate lobbyists working over regulators outside of the public view – would leave them only the public proceedings of Congress to press their demands.

An effective Congress, passing no-loophole laws, would be better than the personal rule of any president abusing their powers. 

Trump, the would-be autocrat, gets Supreme Court backing

 

Gordon L. Weil

What does Donald Trump want to do with the presidency?

He makes his intentions clear, though less clear is whether he can turn his plans into reality.  Kamala Harris describes him as “unserious,” but cautions that voters ought to consider as “serious” the risks of his presidency.

Trump favors a strong presidency, enjoying powers he can exercise with little or no control by Congress and with the expected support of his Supreme Court majority.  His next term, if he gets it, could look a lot like authoritarian government.

One indicator is his obvious affinity for leaders who bear the title of president, but who exercise strong or total control of their national governments.  He almost fraternally refers to Russia’s Putin, China’s Xi and North Korea’s Kim.  In fact, he likes their style and their complete freedom of action.

The presidential system of government places elected presidents, serving fixed terms, at the head of the executive branch alongside legislative bodies that cannot readily remove them, but can limit their powers.  In parliamentary systems, the legislative bodies control and can remove the top executive, usually the prime minister.  

In the U.S. system, the checks on a president are a key element of democracy.  The contrast between democratic balance and the authoritarian rule of false presidents is obvious. 

Independent ranking systems are surely not absolutely correct, but they offer strong signals that prove the point. Britain’s Economist Intelligence Unit ranks countries by their degree of democracy.  Among the counties ranked as being “full democracy,” almost all in this category have parliamentary systems.

The U.S. presidential system is rated in the “flawed democracy” group, which also includes India, Poland and Hungary.  America gets a high rating for “electoral process,” but a weak rating for “functioning of government.”  There’s also an “authoritarian” group, which includes Russia, China and North Korea, operating as one-party states.

Trump plans to use his governmental powers to pursue the political enemies he calls “vermin,” expel millions of migrants, and deploy the military to carry out his policies.  Sounds like an autocrat.

His extreme departure from national norms leads conservative Republicans, who may like his policies on the economy and immigration, to endorse Harris with whom they may disagree on the issues.  She is simply safer.

In the White House, Trump would be likely to do whatever pleases the right-wing constituency that put him in office.  Although he honestly reports that he has not read the 887-page Project 2025 blueprint, he is likely to follow its right-wing manifesto.  He has little of his own policy, but depends heavily on outside, conservative advocates.

Under its terms, the Justice Department and the FBI would be bought firmly under his control.  The Education Department would be abolished, and the Federal Reserve brought under  greater political control.  No agency would be missed.

Trump would be able to take control of the government.  Though the president is supposed to be constrained by Congress, it has failed to do its job.  It delegates much of its power to executive agencies.  The Senate is often unable to act, thanks to its rules allowing decisions to be blocked by a minority of senators.

The Supreme Court’s July decision, aptly named Trump v. United States, gave the president almost complete immunity from legal scrutiny for all but his most personal actions. And who gets to decide if his actions are presidential or personal?  The Supreme Court, now dominated by his allies.

This decision does more for placing the presidency above Congress and the states than any other event in American history.  It could easily mean that limits no longer exist on a president using the military for domestic, political purposes.

Congress, because it is ineffective except in doling out benefits and increasing the debt, and the Court, because it has become so obviously partisan, have become quite unpopular.  The unfavorable rating of Congress has reached 76 percent, and it is 51 percent for the Supreme Court. 

The remaining option for controlling presidential excess is impeachment and conviction.  But impeachment has become mere political routine, and conviction continues to be impossible and ineffective. 

Trump covets unlimited power, which no president of either party is meant to have.  The pathway to unchecked presidential power has been paved by the Supreme Court’s decision.  The evidence is that it intended to achieve this result before the election.  That leaves the decision to the voters.

The Court’s Roe v. Wade decision on abortion established policy in the absence of congressional action.   Trump v. U.S. did so as well.  As Roe shows, Court decisions can be reversed.  Congress can remove the Court’s jurisdiction, but seldom does.  Presidents can reshape the Court by their appointments.

A political movement pushed the reversal of Roe v. Wade.  A similar effort should now demand the reversal of Trump v. U.S.

 

 

Biden, Supreme Court boost national unease

Gordon L. Weil

Two events – seemingly unrelated – reveal a major historical change taking place right now.

The first is the U.S. Supreme Court decision on presidential immunity.  The second is the heightened public sensitivity, caused by Joe Biden’s personal crisis, to the risks of our heavy dependence on the single person who holds the presidency.  The two are related.

Despite the belief that the Court decision was about a group of partisan justices showing their barely hidden support for Donald Trump, it was far more significant than that. It was a sharp turn in the history of the country.  What the Court decided applies to all presidents.

The question before the Court was the extent that a president – any president – is immune from criminal responsibility for their acts while holding the office.  It said there were three areas of presidential activity related to immunity.

First, when the president has been given power under the Constitution or acts of Congress and acted in line with that authority, they would be completely immune from charges.

Second, where the president acted at the “outer perimeter” of their legal authority, they are presumed to have immunity, though that presumption can be tested in court.  Charges would likely be brought by the Justice Department, an agency under the ultimate control of the president, who might assert immunity and prevent prosecution.

Third, if the president acts outside of their authority, they would have no immunity from prosecution.  Trump’s counsel has asserted that a president, as the commander in chief, could order the military to kill his political opponent and could not be charged with murder unless they were first impeached for the act.

Who decides on the type of presidential activity in question?  The Supreme Court’s answer is that the decision is made by the federal courts, and would inevitably end up at the Supreme Court.  If you had any question about checks and balances, here’s the proof they are dead.

This decision departed from the foundation of the country as laid out in the Declaration of Independence. The basic reason for the Declaration was to reject the unlimited power of the British king, who could do no wrong.  He was subject to no checks. The basic message of the Court decision is that the president can do no wrong, unless the Court decides otherwise.

The new decision does not overrule the power of Congress to impeach a president, but the Constitution makes it clear that impeachment is not punishment and does not decide the question of criminal responsibility.

Now, turn to Trump, who has promised his administration would take legal action against Biden and exercise unprecedented executive authority, and Biden, whose uncertain physical and mental health could lead him to similarly unrestrained use of power.  The possible actions of either of them gives heartburn to a significant portion of the population.

To be sure, the U.S. has little history suggesting that presidents normally carry out criminal acts.  And the issues surrounding the possible excesses of this year’s candidates may be an historical warning to avoid taking big risks in choosing presidential candidates.

If the possibility of presidential felonies is rare, the Court’s decision could have an effect that is more theoretical than real.  But its thinking may represent something more essential than White House criminality.

We may be focusing too much on Trump and too little on the fact that he has wide, popular support.  Many of his backers seem to favor a more authoritarian government, though a limited one.  They appear to want government to be both narrower and deeper.

Support for stronger central rule and less popular democracy is not limited to the U.S.  Though the left-of-center Labour Party won the most seats in the British Parliament, conservatives got more popular votes.  In the French elections, the conservatives equaled the moderates and left. The same is happening in Germany, the Netherlands, Hungary and Slovakia.

The Court’s decision may reflect a landmark, generational change. Post-World War II liberal democracy is losing ground to more authoritarian and nationalistic politics.  International agencies are weakening.  National governments are challenged both as regulators and service providers.

Because the Supreme Court has assumed a right to have the last word, not specifically given it by the Constitution, it may have turned itself into a prime political issue.  Congress was supposed to be the dominant branch of the federal government, but it has let its powers slip away.  A powerful president and an unchecked Supreme Court continue to rise.

The Court is dominated by a well-disciplined philosophy and is not the neutral umpire we were promised by Chief Justice John Roberts.  Just as compromise is missing in Congress, it is missing at the Court. 

These developments place us at an historical turning point, which demands our attention and concern. 

U.S. partisan split: 'One side is going to win'

 Gordon L. Weil

A person, who later claimed to be a documentary reporter, interviewed members of the U.S. Supreme Court at a social event.  She hid her microphone, and they probably thought they were engaging in a purely personal conversation.

The reporter’s ambush was against the ethics that most journalists are expected to observe.  A responsible and free press is essential to our democratic form of government. But it hardly works if the media that is supposed to uncover cheating is itself a cheater.

The words of Justice Samuel Alito made their way into the media.  However questionable the method of collecting them, they proved informative, if not totally surprising.

Alito is an unrelenting partisan who reveals his orientation in his words as a justice.  So, if he took a conservative position reflecting his views and values in this chat, his comments were nothing new.  They apparently were meant to be revealed as evidence of his bias, though little more evidence was needed.

But Alito went beyond his political leanings to do a bit of political analysis. In stating his view, he was clear and forthright, characteristics often absent from political speech.  Not only might such clarity be helpful, but it may well have been an analysis understood by partisans on both sides.

Talking of the deep divide in the country, he said: “One side or the other is going to win. There can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised.  They really can’t be compromised. So, it’s not like you are going to split the difference.”

The essence of compromise is each side gives ground.  They split the difference, though not always equally.  Look at the deals to avoid mentioning slavery in the Declaration of Independence or to create a House of Representatives, elected by the people, and a Senate representing the states.  These deals resulted from big compromises.

Traditionally, when the two houses of Congress have disagreed, they created a conference committee to come up with a compromise, which is a deal that leaves both sides equally unhappy.  These committees have disappeared.

Beginning with the GOP Contract with America in 1994, compromise began to fade to the point that it hardly survives even on routine matters.  Republicans would not compromise, leading the Democrats to play hard ball.  Donald Trump exploited the grievances of frustrated Republicans to gain the presidency.  In turn, they gained greater power thanks to him.

In the Republican controlled House, the GOP intentionally adopts bills on which compromise is impossible.  They use such bills to create election issues. In the Senate, the majority Democrats picked up the practice.

Alito’s friends emphasize that he had offered that people could find ways to work and live together “peacefully.”  But he did not explain how.

Occasionally, Republican members of Congress, especially those in vulnerable districts, claim they are willing to compromise.  But it turns out that compromise means that agreement depends on Democrats accepting their positions.  Even if that were to happen, horse-trading in which they accept some Democratic positions doesn’t happen.

Take former GOP Speaker Kevin McCarthy. He wanted Democrats to join with loyal Republicans to oppose his ouster.  They had jointly supported his successful effort to keep the government open, overcoming right-wing GOP opposition.  Yet, just before the ouster vote, he bashed the Democrats, assuring they would not join his supporters and retain him.

What if compromise, the historic hallmark of American politics, is virtually dead, as Alito suggested?

The situation might drive American voters to give the Democrats strong congressional majorities and the presidency.  As a party much less unified than the GOP, they are familiar with compromise and would know how to restore it.  They might produce results.

But that depends on the people. Are we so nearly evenly split that a governing majority is not possible without Trump’s authoritarianism?  If so, matters will have to get much worse before a popular majority for compromise emerges.

If not, today’s abortion battles may show the way.  The Supreme Court, in an opinion written by Alito, said abortion would be left to the states, and they jumped to the challenge.  Leave more policy to state decisions and limit the Supreme Court’s powers by passing legislation to limit its jurisdiction.  Both sides might agree on that.

The result could be more conservative states than liberal states, but with an overwhelming majority of the American people in those liberal states.  Maybe some people would move.  The National Popular Vote for president would become increasingly likely.  In this continental country, a less centralized federation might become appealing.

Alito clearly sees national division.  Perhaps he believes that the Court could guard the conservative gates.  It shouldn’t, and it can’t.