U.S. votes, Brexit reveal problems from overuse of referendums

Gordon L. Weil

The 2016 presidential vote and Brexit have something in common. In both cases, many voters found the result was much different than their expectations.

In recent months, the British Parliament has been grappling with putting into effect the closely decided referendum vote to leave the European Union. It proved easier to say "Leave" than finding a way to do it.

The main problem is Northern Ireland, a part of the United Kingdom. Leaving the E.U. means either it will have a new border with the country of Ireland or one with the rest of the U.K. It has neither now. Nobody has come up with a solution to avoid one or the other.

This issue has disastrously complicated the "Leave" decision. Faced with uncertainty, major parts of the U.K. economy are departing for the E.U. They cannot accept the situation and assume the worst. Confusion reigns.

Resolving the issues created by the "Leave" vote has been left to Parliament, which cannot agree on any course of action except delay. The result is political chaos.

The Brexit crisis is the result of using a popular referendum in a country having little experience with direct democracy – decision-making by the people rather than by their legislative representatives. Perhaps the most national voting experience many people had was the Eurovision Song Contest.

In the U.S., Donald Trump's election was the American version of a national referendum, and he got four years at the helm. Not only did he win the presidency without a majority of the popular vote, but he has stirred deep concerns about his leadership on matters ranging from race to trade.

The safety valve on this national vote has always been the election of the House of Representatives. The people get to express their political opinion midway through a presidential term. If they dislike the results of the presidential election, they may elect an opposition House.

That's why the entire House is elected every two years while senators, members of a body designed to slow change, are elected for six-year terms. The House can become the short-term monitor of the president. The Democrats, newly in control, are trying to slow Trump down.

There are two solutions for dealing with the complicated consequences of a referendum.

One is used in Switzerland where voters participate in national referendums as often as four times a year. The issues are usually narrow and specific, and their votes make laws that can be immediately applied.

The other approach is to allow the legislative body to complete or even modify referendum results. There are 23 states, including Maine, that authorize referendums initiated by voters, while 49 allow legislatures to put questions before the voters.

State legislatures can deal with trying the fulfill voters' decisions that cannot go directly into law. In Maine, when a vote authorizes action without providing necessary funding, the Legislature regains control. The 2004 vote on school funding has not gone into effect, because it might force an increase in state taxes.

A possible reform proposed for referendums would be to require a super-majority for passage. If, say, 60 percent of voters were needed, legislatures would be more likely to find ways of fulfilling the will of the people. Another suggestion is that the number of signatures to initiate a referendum could be increased.

The problem in the U.K. undoubtedly arose out of the lack of familiarity with direct democracy. The error was using a referendum. After the vote, the British Government mistakenly tried to keep Parliament out of the "Leave" process. It did not succeed.

In the U.S., Trump won in one of the four presidential elections since 1824 in which another candidate got more votes. Despite having won only a minority popular victory, he has sought to make huge changes in American policy. The House can block some of his moves, but Congress has given presidents great, unchecked powers.

Some House members propose impeachment, implying that it can be used for policy reasons, as in the past. Both of the earlier times it was tried amounted to a pure politics, and it failed.

Direct democracy works on a small scale, as in Switzerland. The New England town meeting system succeeds, though with low participation. But referendums are beginning to show defects, especially in mass democracies like the U.S. and the U.K.

Elected legislators need to exercise their powers. The British Parliament could have dealt better with E.U. issues by itself without first holding a referendum. Congress should cease delegating its powers to presidents and recover its constitutional authority.

Moderates count little in partisan world; voters harbor unrealistic hopes

Many voters consider themselves to be political moderates, not partisans on the right or left. To appeal for their votes, candidates claim they can "work across the aisle."

But do voters really favor political leaders who will sometimes vote in line with their wishes and sometimes against them? Is it possible to be a moderate politician, if the "aisle" turns out to be a canyon?

Moderate politics may be one of the grand myths of American politics and more wishful thinking by voters than reality.

A moderate might propose solutions to political issues that yield some satisfaction to each side, but also some dissatisfaction. Compromise might be acceptable, because everybody wins something, just not everything, they sought.

That kind of moderation is only possible if both sides are willing to give some ground. If one side insists on full acceptance of its demands, a moderate politician will fail. In Congress, the extremes of both parties show little willingness to accept anything less than complete victory.

The ideological wings of both parties now have enough seats to block compromise. Though still occasionally possible, it is unusual.

More often, what voters mean by "moderate" is the politician who generally supports their party but may sometimes split with it on key votes. Such a moderate may act independently when responding to their constituents or adhering to a personal principle when they resist party discipline. They may do so, especially if they don't tip the balance.

Some voters believe that on issues mattering a lot to them, the office holder can be counted on to split with their party. When that does not happen, the moderate can quickly be scorned as a mere partisan.

Take the case of Sen. Susan Collins. She provided one of the key votes that saved the Affordable Care Act and opposed some major Trump appointments. She has been considered to be a rare GOP moderate and most likely that is how she sees herself.

Then she voted with her party to confirm Brett Kavanaugh to the Supreme Court. Everything changed. In the eyes of Kavanaugh's opponents, Collins became a loyal Trump supporter, though she had not supported him for president and had routinely backed presidential Supreme Court nominees.

Collins' situation is complicated by Sen. Mitch McConnell, her Republican leader in the Senate. As a member of his party, she inevitably votes to retain him as her Senate leader. But McConnell does not see some major issues as she does.

She is then exposed to his obvious willingness to back Trump and his strict discipline in the Senate, blocking many votes that might embarrass GOP senators. He usually bars compromises, insisting on his way or nothing. Collins may have to go along with him so she can get good Senate committee assignments, which he doles out.

McConnell initially expressed concern about President Trump's declaration of a national emergency to fund the Wall. But when Trump insisted, he changed position without hesitation. Collins had been among Republican senators opposed to the declaration. McConnell simply ignored them. She stuck to her opposition.

Does that make her a moderate? Now set against her, some voters disappointed by her Kavanaugh vote said her latest position was a sham, because she could count on Trump successfully vetoing the resolution disapproving his declaration. Had she supported Trump, she would also have been condemned.

Perhaps this case showed there's no room for moderates in American politics. They cannot create compromises, and independent-minded moderates cannot satisfy some voters unless they act like they belong to the other party. Then, of course, they would not be moderates.

It may also show that voters who say they want moderate politics are either chasing a political ghost or badly missing the excessively partisan nature of today's politics.

Suppose a majority of Maine voters had opposed Kavanaugh and believed his appointment would be the single most important issue before the Senate. By voting for Collins, they had given McConnell great power to steer the Kavanaugh vote.

Of course, that kind of foresight by voters is impossible. We cannot predict what votes or nominees are coming and if a senator will break party discipline on a critical issue – even if the senator is a moderate.

Politicians, even moderates, do not often split from their party. If voters want politicians who will reliably vote in favor of their positions, they may have a better chance if they choose between the parties.

In this age of extreme partisanship, more certainty may only come from voting as a partisan, not as a moderate.

Direct election of president expected, despite bitter opposition

The country has found a politician who is honest, speaking the truth as he sees it, no matter the consequences. Paul LePage, the former Republican governor of Maine, has spoken out against the proposal for popular election of the president of the United States.

"It saddens me that we're willing to take everything we stand for and throw it away," LePage said. "It's only going to be the minorities who would elect." He continued, "White people will not have anything to say."

Two of the last three presidents, including Trump, won the electoral vote while losing the popular vote. That has given a big push to the proposal of having presidents elected by a majority of American voters.

LePage has said, "I was Donald Trump before Donald Trump became popular." We are "one of the same cloth," he said, inviting his listeners to accept him as an authentic supporter of the president's views.

Unfortunately, the issue has become partisan. Five times, the U.S. has elected a president supported by only a minority of voters. All of the losers were Democrats. Not surprisingly, the GOP opposes the national popular vote proposal.

Many Republicans seek to suppress the influence of "minority" voters, allowing white voters to continue to dominate the political process. Electoral voting goes along with gerrymandering and measures making it more difficult to register or vote.

These policies amount to a rearguard action to slow the inevitability that the "minority" – mainly African Americans, Hispanics, Asians and American Indians – will soon constitute the majority of the population.

The proposal before Maine and the country is that states will instruct their presidential electors to vote for the candidate who has won the popular vote nationally. When states with 270 electoral votes, a majority, support this approach, it can come into effect. Right now, less than 100 more electoral votes are needed.

One complaint about the proposal is that Maine, a small state, will lose influence. The electoral vote gives Maine 74/100 of one percent of national voting power. The national popular vote, based on the 2016 election, would give Maine 56/100 of one percent. Maine's above-average voter turnout would allow it to retain its modest influence.

We expect every voter to have equal weight in the democratic process – one person, one vote. Without the national popular vote, a Wyoming voter has almost four times the influence of a California voter and counts somewhat more than a Maine voter.

In both the 2000 and 2016 elections, Maine voted with the popular majority only to see the loser in the state gain the presidency. The same was true for California, New York and other states, which could not have seemed fair to their majorities. In Maine, despite LePage's worries, the majority was obviously mostly white people.

In 1787, when the Constitution was drafted, the Framers showed mistrust of democracy, which they limited to the House of Representatives. States retained much power. Each one, no matter its size, got three automatic seats in Congress – two in the Senate and one in the House. The size of a state's congressional delegation determines its electoral vote.

Since then, popular democracy has risen. The Senate is elected by popular vote, not by state legislatures as it was originally. Women, African Americans and younger people have been added to the original corps of white men. National media and a national economy have grown, engaging citizens across the country.

Under the Constitution, each presidential election is actually 51 separate elections – the 50 states and D.C. Maine, with its split electoral vote system, shows that states can act independently in deciding how their electoral votes will be determined. That is what is now happening.

Jurisdictions with a majority of electoral votes can decide that the state will allocate its votes to a national winner. There are now enough states that have seen their majorities overruled by a popular minority to provide the necessary 270 votes to make the change. There's no need to amend the Constitution.

Whatever Maine does, the national popular vote is inevitable. Presidential campaigns are national, ignoring state lines. Healthcare, federal taxes, immigration, individual rights, and the economy are addressed nationally not state-by-state by presidential candidates.

The Republican Party needs to extend its appeal to a broader constituency rather then trying to suppress the vote of non-white ethnic groups. It must see that its policies to discourage voting by new participants in the political process are not good for the party or for the country.

Healthcare needs reform, not reckless cuts or impossible extremes

In the 2020 election campaign, healthcare looms as a major issue. 

Many Republicans want to repeal the Affordable Care Act and slash Medicare.  Eliminating Obama's signature policy and reducing Medicare are centerpieces of their effort to end Democratic "big government."  They like the traditional system based mainly on insurance provided by employers. 

Many conservatives believe healthcare should be left to private sector insurance and emergency care.  The U.N. World Health Organization rates U.S. medical services as only average, except for its top-flight emergency rooms.  The country also ranks first world-wide with the highest healthcare costs.

Medicare gives most older Americans, who lack coverage under employer plans, regular access to hospital and doctor care.  Drug costs are subsidized.  If they cannot afford the program's premiums or co-pays, Medicaid can help.

Under Medicare, people can choose their doctors.  In addition to Medicare payments, they either come up with cash or use supplementary coverage, provided by private insurers. 

Medicare Advantage, a popular form of the program, tempts insurers to cheat the government by claiming they paid doctors for more care than they actually did.  Last week, the massive extent of this cheating was revealed, with more bad news expected.  Many major insurers appear to be involved.

Congress has blocked Medicare from selecting drugs based on their price.  Suppliers have an incentive to charge as much as the market will bear, far above actual cost.  Their prices are not regulated.  They may expect that co-pays would be raised.  

Because Medicare covers so many people who might otherwise have no protection, some Democrats propose universal health insurance – "Medicare for all."  Most likely, they would propose to fix it first, piling one unlikely promise on top of another.  But it sounds politically appealing.

This proposal is a form of so-called "single payer" insurance.  A government agency pays all bills with some co-pays to screen out those not truly ill.  "Single payer" raises taxes but eliminates insurance premiums, and is thus expected to lower net outlays by individuals.

But the cost of hospitals and doctors remains uncontrolled.  The single payer may still face higher prices.  One obvious solution is that the single payer also employs the doctors and owns the hospitals.

Such a system exists in the U.S. – the Veterans Administration.  Because any system is only as good as the people who run it, it works better in some places than others.  In Maine, it works well.  Full disclosure: I'm a participant.

Because some managers elsewhere falsified their records and delayed service, the VA system has come under pressure.  The Trump Administration's solution is to make it easier for veterans to use outside doctors at government expense.  This outsourcing is part of the GOP effort to reduce government programs.

The ACA is a hybrid between the traditional insurance system and a government payer.  It is supposed to control prices through the operation of an open market in which people can choose their coverage.  Insurers are required to cover more people.

After a recent change, made when the GOP Congress went after the ACA mandate, individuals no longer must buy insurance or pay a penalty.

If not covered by employer plans, individuals may exercise their choice through state exchanges in which insurers compete.  Originally, a non-profit public option was proposed in each exchange, but it was blocked by a single senator representing insurance interests.  The obvious fear was that people would turn the lower-cost public option into a single payer.

The ACA has its problems.  It has survived because of a handful of GOP senators, including Susan Collins, and Chief Justice John Roberts' swing vote on the U.S. Supreme Court.  The lack of cost control and the loss of required participation make it an imperfect solution.

Recently, a Columbia University expert has suggested that, instead of the ACA or copying single-payer Canada, the U.S. should consider the German model, the world's oldest health insurance plan.  Less costly than the American system, it uses a combination of employer, employee and government financing.

Private insurers in Germany are subject to strong regulation, and they compete on price and quality.  An individual's co-pays are capped at a fixed percent of annual income, less than co-pays in the U.S. 

Americans prefer choice and competition, and the German system provides it.  Government regulates prices but does not replace insurers. Along with adding drug price regulation, this plan merits more attention.

Healthcare is an immediate and costly problem.  Candidates need to skip anti-government cost-cutting bravado on the right or unrealistically generous promises on the left and look for real solutions.

Congress lets president do its job; reform of national emergencies needed

Declaring a national emergency, President Trump's way of rounding up funds for the Wall, is either a national scandal or a routine political maneuver.  Voters may get to make their choice.

Whatever it is, the fault for the latest crisis is squarely owned by Congress.  By blithely passing off its constitutional powers to the president, it is now faced with a president making the most of the opportunity.

Sen. Lindsay Graham has said that Congress refused to allow Trump to spend funds in ways it had authorized previous presidents, so he had to act on his own.  That's not how it is supposed to work.  When Congress sets spending priorities, the president cannot flout that decision just because he favors another policy.

The problem is not that Congress has rejected more wall-building.  The problem is that Congress has given the president the tool to ignore its constitutional control of federal spending.

Another understanding about how the federal government is meant to work within the terms of the Constitution has been eliminated.  Its disappearance joins a growing list of evaporating constitutional customs, altering the American system of government.  People voted for change, and they are getting it.

Presidents have used their power to declare a national emergency for a wide variety of reasons, from blocking the assets of certain enemies to prohibiting the import of "blood" diamonds to responding to the 9/11 terrorist attacks.

Trump has been criticized because the immigration threat is not newly urgent and has been diminishing in recent years.  

So why call it a national emergency now?  It looks like a mere political ploy.  Even so, it takes advantage of the possibly unjustified precedents established by assertive presidents acting in the absence of Congress.

What's different about Trump is that he has acted right after Congress expressly rejected the spending and precisely because of the congressional rejection.  That had not happened previously.  And his declaration was based on inaccurate or false data.

A national emergency should be an urgent situation that can be easily recognized by members of Congress and average voters.  It should not be a matter of politics, which this declaration surely is.  Consistent with his approach throughout his presidency, Trump wants to keep the political promises he made when he ran.

Congress may try to reject his declaration.  Much will depend on how Republican senators vote.  There must be enough of them to override his inevitable veto.  It is a virtual certainty that GOP senators will not abandon their loyalty to their president, though he shows them no such loyalty.

The declaration has also gone to court.  Opponents claim that Trump's action violates the separation of powers and that he cannot ignore the congressional power of the purse.  

They will expect a conservative Supreme Court to be more supportive of the Constitution than of the president.  Maybe.

The Court could well refuse to decide the matter.  It could simply say that Congress can pass laws about national emergencies, as it has in the past, leaving it up to the lawmakers to decide this matter, not the judiciary.  It might find that nobody has standing to make a legal challenge.

Dealing with Trump's declaration or at least future so-called national emergencies places the issue directly before Congress.  Senators Susan Collins and Lamar Alexander of Tennessee, both Republicans, say they oppose Trump's declaration.  They should come forward promptly with a bill to limit presidential power.

New limits in declaring national emergencies could be enacted.  They might be required to sunset in two weeks or a month.  That would give Congress the time to consider legislation authorizing further action.  These days Congress can reconvene quickly.  There's no need for give the president a blank check. 

This approach could be especially useful where the president is using funds that had been appropriated for other purposes.

Two classes of emergency might be established, cutting down on the use of a broad declaration to cover targeted issues.  A two-tier approach would reserve the declaration of a national emergency to events having national effect.

As for the Trump declaration, Congress could ban using any funds under any appropriation for spending on a border barrier above the level set in the Homeland Security budget.  

Even if the president vetoed it, the bill would give political wiggle room to Republicans who want to put some space between themselves and Trump in the 2020 elections. 

Reversing Trump would be a declaration that Congress is beginning to reassert its lawful powers.  The Wall is not what's most important.  The Constitution is.

Supreme Court makes big waves with little orders; Collins gets blame, Roberts gets credit – both mistakes

The Supreme Court has stirred controversy with two procedural orders.  They revealed much about the state of our political world.

In one case, the Court decided to suspend a Louisiana law that requires doctors performing abortions to be admitted to practice at a hospital.  The law could have the effect of eliminating all but one of the clinics and doctors providing abortions.

The factual question was whether three doctors could obtain hospital admission privileges.  The state promised to give them 45 days to try, deferring enforcement of the law.  It acknowledged that if only one doctors remained, that would not satisfactorily protect women's health.

In effect, the Court decision lengthened the 45-day period.  It did not decide on the law itself, though it will later.  Among the five-member Court majority were the four liberal justices and Chief Justice John Roberts.

Justice Brett Kavanaugh was among the four conservatives opposing the suspension, but was alone in providing a written explanation.  He took no position on the law, but said that the three doctors should continue performing abortions and make a “good faith effort” to gain hospital privileges in the 45 day window.

If they did not succeed, a stay suspending the law could then allow the Court to review the law itself.  In short, he said nothing about supporting the obvious effort to drastically limit abortions.

Two conclusions immediately emerged from the decision, both most likely wrong.  One was that Sen. Susan Collins had been fooled when she said Kavanaugh would respect precedent, presumably the Roe v. Wade decision allowing abortions.  The other was that Roberts was emerging as the Court' swing vote.

Abortion advocates would not trust Louisiana's assurances which Kavanaugh had accepted.  Because he was not suspicious, he was complicit.  That meant he opposed Roe.  Distrusting any statement from those you oppose is how politics works these days.

Collins took him at his word in his dissenting opinion.  The media reported that opponents of Kavanaugh's confirmation had “slammed” her with the obvious intent to weaken her reelection chances. 

As for Roberts, as much as we want a new swing vote, he showed his credentials for the title are limited.

In Alabama, a convicted criminal was slated for execution.  A Muslim, he asked for an imam to be present.  The state refused, saying only its Christian staff chaplain may attend.  Otherwise, it claimed, without proof, the event might be unsafe.  The state claimed he should have known the rules, though his request for them had been refused.

The Court of Appeals had suspended the execution so that it could hear arguments on both sides.  The Supreme Court overruled the lower court and allowed the execution to take place.  The five member majority included the five conservatives, including the Chief Justice. 

Justice Elena Kagan said the decision was a direct violation of the clause in the Constitution that prevents the government from favoring any single religion or religion itself.  She said the state's reason for its rule should have been examined in court.  After the decision, Alabama quickly banned any religious counselor from executions.

Roberts had fallen in line with the conservatives, not on procedure as was the case on abortions, but on a basic constitutional question.  That raised a question about the quality of his status as swing justice.

Both decisions could affect millions of people.  The Court owed people more than the short, procedural orders, providing little detail and judgment.  It left the explanation to the media, which could easily misinterpret the abortion order, making more out of it than justified and while ignoring the true meaning of the religion case.

As a result, people were misled or ill-informed.  That undermines democracy.  The Court deals with the law, but it also affects the people.  It might remember that.

A note.  This column during the week near Washington's Birthday traditionally is devoted to the exceptional man who embodied the American nation and was its first president.  Because last fall, a column was devoted to his words, relevant in light of the Pittsburgh massacre, this column does not focus on him.

But we have heard recently from our current president that his first two years in office were the greatest in history.  In his first two years, George Washington created the American executive branch of government, balancing conflicting views.  He was well aware that he was setting precedents that might last as long as the Republic.  And he displayed great modesty, even reticence, at times. 

These days, his exceptional accomplishments are worth remembering, especially in the White House.

Pundits speculate on presidential election like it's a sport

If you follow any major sport, you probably know about weekly power rankings. Teams are rated on their recent performance, and their standing may change from week to week. The ranking supposedly reveals the ultimate winner.

Power rankings have now come to the presidential campaign. Washington Post pundits plan to rank weekly all potential candidates, Democrats, Republicans and independents. But not Donald Trump. Perhaps the Post assumes that he has all the power he needs to get the GOP nomination.

The presidential campaign is well under way, starting barely after the latest elections. The pundits are hard at work, speculating on the latest news. The voters are likely to be confused.

The congressional races have also begun. Last week, Sen. Susan Collins' campaign announced her best fundraising quarter ever. It openly attributed the support, from all 50 states, to her vote in favor the appointment of Brett Kavanaugh to the Supreme Court.

Meanwhile, Kavanaugh's opponents have raised a war chest to support whatever candidate opposes Collins, the expected Republican standard bearer. Money in politics? Here is a case of money seeking the candidate, not the reverse. It seems clear that the campaign will be mainly about that one vote by Collins.

There might be as many as 20 Democratic hopefuls in the presidential race. Inevitably, this campaign crowd must be seen as reflecting the belief that Trump is vulnerable and almost any respectable Democrat can beat him. The problem is that's just what the Democrats thought in 2016, when the result did not support their optimism.

Only a few of the Democrats have a platform. The Post's power ranking focuses more on where candidates fit in their parties, based on their personality and where they hail from.

Are the Democrats inclined to select a reformer willing to upset tradition, as young voters supposedly want? Or will they prefer a candidate who appeals to the white, working class men who usually line up with the GOP? Is it the right moment for a woman to be elected, thanks in part to the growing involvement of women in the political process?

Whatever happens, it would be a mistake to conclude that the Democrats will end up so badly divided they cannot win. Unlike the GOP, the Democrats are accustomed to internal battles and the campaign losers often stick with the party's candidate.

On the GOP side, Trump seems to be having trouble finding his footing. He has always relied on the cheers of his base, the core group of supporters who stick with him no matter his policy choices. But other Republicans, especially in the business community, and even some of his core are now becoming less reliable.

The economy is strong. But if it slows, as forecast, will Trump still be able to take credit for a boom? The tax cut has produced only small benefits, but a large deficit, making it less popular than it was originally.

And he has stumbled. His Wall is not happening and he looks increasingly desperate. His rebuke of the government intelligence chiefs backfired, and he admitted that he had only followed their analysis in the media, when most presidents would have been briefed by them. The shutdown failed and left him looking unsympathetic to workers.

Moderate GOP office holders have been hinting they might run against him in party primaries. But they would need massive funding and enough support from reluctant Republicans to defeat Trump in early primaries. Achieving either seems unlikely unless more of his base washes out.

Of course, the Mueller report may contain enough damaging information about Trump's involvement with the Russians in the 2016 campaign that even some of his base deserts him. His continued coziness with Russia, while the diplomats and military openly worry, could make him more politically vulnerable.

If Trump weakens or drops out, watch for an army of GOP candidates. They would test whether the GOP has permanently abandoned moderate politics to become a party of the far right.

The political scene is too unsettled and the primaries are too many months away for television's talking heads to get much right.

With the campaign under way, it is worth remembering picking a president is serious business, not a sport to handicap. Speculation can swamp knowledge. The voter far from Washington may be treated more like a commodity than as a citizen.

Conclusion? Don't pay much attention to the pundits and don't rush to pick a candidate. Plenty of time remains for candidates to emerge, shine or simply disappear. This is not a sport.