Approaches to Electoral Reform
Copyright ©1995 Constitution Society. Permission to copy with attribution for noncommercial purposes.
There is a growing awareness of the threat to constitutional government from the ways election campaigns are conducted and financed. Various proposals are being advanced to try to deal with this problem, but no clear consensus has emerged on what the alternatives are, much less on the relative feasibility and desirability of each.
Part of the problem is that the Framers of the Constitution did not anticipate all the subprocesses that are involved in an electoral process, or provide for them in the Constitution. They simply provided for a House of Representatives composed of members "chosen ... by the People", a Senate composed of two members chosen by the legislature of each state, and a president elected by electors each state shall "appoint" according to its own laws. The Seventeenth Amendment later provided that senators shall be "elected by the people" of each state. Each state soon went to electing members of the House of Representatives from single-member districts, and all elections defaulted to plurality or majority vote, winner-take-all, methods of electing, although such a method is not required by the Constitution. In the beginning of the Republic this worked because the country had a small political class, most of whom knew each other, out of which it was expected most candidates would come. It was also a time in which politics was the principal form of entertainment for people.
Even into the late 19th century, the public interest in politics and election campaigns made it unnecessary for candidates to spend much money. In Lincoln's day people would travel miles to hear his debates with Douglas, skilled stenographers would take down every word, and newspapers would print every word, printed in larger editions to meet demand. People would return and recite whole passages from political speeches to their neighbors who were unable to attend, debate the issues, and decide which candidates best represented their views.
Today candidates for public office must compete for attention with an endless variety of entertainment media. Indeed, they are often judged more as entertainers than as public servants. Far from seeking out political information, they actively resist it, so that candidates must devise clever ways to penetrate their resistance by making their messages entertaining and controversial, or simply by having the people hear or see their names as often as possible, relying not on issues but on sheer name recognition to elect them.
This competition with other media costs money. Whether it is paid by the candidate out of his own funds, by contributors to his campaign, by supporters who do not contribute to his campaign but spend their money directly, or by various methods of public funding, for a candidate to have any chance of winning, or even being discussed as a possible winner, a great deal of money has to come from somewhere.
At present, we have partial public funding of presidential campaigns, but none for congressional, state, or local campaigns. Candidates must depend on donations from contributors, most of whom want something for their money. The euphemism for what they want is "access", but without making explicit deals to sell their votes for money, everyone knows what is expected, and that if the elected official does not do what his contributors want, he will not get those contributions in the future. The corrosive effect on public policy is much the same as outright bribery would produce, and the result is policy that is driven more by money than by the public interest.
Most elected officials must now spend much if not most of their personal time fundraising for the next election. They can't depend on fundraiser supporters for this anymore. It has gotten to the point that it impairs their ability to attend to public business, and it has become so humiliating and degrading that it is driving good people from public office.
The obvious solution is public financing. It would be infeasible and unconstitutional to try to limit the amount of money raised from supporters, or to require disclosure of contributors. They can simply spend it directly or contribute to political parties or political action committees, as a way around any limits on contributions. The best that can be done is to provide enough funds to give every serious contender a chance to get his or her message across.
The objection to this has been that taxpayers don't want to fund the campaigns of candidates they disagree with, and foresee public funding supporting a growing class of campaign professionals who would deliver political "packages" rather than the honest candidates we all want. Various proposals to meet this objection have usually involved inducing the media, especially the media like television and radio broadcasting that are licensed, to devote a certain amount of their airtime to candidates. The counter to this argument is that while that might work for the small number of federal candidates from the two major parties, it would be unduly burdensome to include state and local candidates or candidates who are independent or who represent minor parties. It is pointed out that this is just a tax on the media to be paid to the candidate's campaigns, and therefore is just public financing in a different form, but in a form that can exclude independent voices.
There are two competing requirements here: The first is to provide a way for challengers and lesser-known candidates to get their messages across. The second is to provide a way to weed out less serious candidates without denying them a fair chance to become serious candidates. The solution requires more than just a legislative measure, such as public financing or contributor disclosure or limits on spending or on contributions. It requires that we adopt constitutional provisions to both open the campaigns to challengers and reduce the number of contenders until one is finally elected.
The two-party system has essentially arisen to fill a hole in the Constitution concerning elimination of contenders. When voters elect individuals by name to represent their states or districts on a winner-take-all basis, some method must be used to reduce a large number of contenders to two. This could be done by having provisions of the Constitution that would prescribe a series of elimination contests, as is done in sporting tournaments. Preliminary elections could be held in small districts of the larger area to be finally represented, with those candidates doing best in at least one such district qualifying for the next round in a larger district, and so forth until the field was reduced to two in the entire area. In the absence of such provisions, people organize less formal procedures to accomplish the same thing.
One of the results of this is the emergence of a two-party system, in which third-party candidates have no serious chance of being elected, unless they operate as factions within one of the two major parties. Voters limit their choices to the two major party candidates because they perceive that voting for a third-party candidate will just serve to elect the worse of the two major candidates.
For presidential elections, we have seen how the two major parties have set up a series of state primaries or caucuses which do not occur on the same date, and which therefore serve as a kind of elimination process, although one that is inherently unstable and unfair, since it gives too much influence to the states that hold the earliest contests. It also tends to push back the beginning of the campaign earlier and earlier until it can be said that each campaign now begins with the last election.
A solution now becomes apparent. It would require amending the U.S. and state constitutions to provide for election "tournaments" leading to final election. While we are at it, we might also adopt a mathematical algorithm to draw the boundaries of election districts, which could also be used to draw subdistricts for elimination contests. This can and should be taken out of the hands of legislators and other politically-motivated people. The formula could first be applied to partition counties into wards and precincts containing equal numbers of people.
The formula could then be applied to states to draw the boundaries of U.S. congressional districts, by beginning with the "corners" of states and adding countries, wards, and precincts until a district was defined with the right number of people, within, say, 2 percent, and with a boundary of minimum length. The formula would proceed inward until the state is partitioned. Finally, an optimization algorithm would be applied to reallocate precincts to minimize overall boundary lengths and avoid odd-shaped districts. The algorithm would be similar to one used to calculate the boundaries of a given number of soap bubbles of equal volume that must fill a given space, but with the constraint that the boundaries must coincide with long-established county, ward, and precinct boundaries.
Various formulas might be used for the elimination process itself. It might be provided, for example, that the two candidates receiving the most votes in a contest in a small district (such as a precinct) would then qualify for the next contest in a larger district composed of say, nine of the districts in the previous contest. Candidates could run in just one district, or in many of them.
Public financing would begin with the second level of the elimination process, and would mainly consist of financing debates among the candidates and publicizing those debates and the results of the contest. At each level, additional funds would be made available in the form of vouchers for printing, postage, telephones, Internet access, office and computer rent, transportation, and media air time. There would be no money for staff compensation or consultants, so not all expenses would be covered, but enough would be provided to enable serious candidates to survive the next elimination.
It is expected that such an elimination process would generate the kind of excitement that would result in greater public and media attention, and therefore in reduced campaign costs. It might also result in television and radio "campaign channels" that are entirely public-funded and dedicated to carrying debates and campaign messages, thus avoiding any adverse impact on the regular media.
Another avenue for public financing is simply to encourage and subsidize the ownership and use by the general population of computers and access to the Internet and the World Wide Web, which could then become a major medium for the delivery of political messages. Voters could surf the Web sites of candidates and political commentators to acquire the information they need to make intelligent decisions.
Some might suggest that even the voting could be conducted electronically from people's computers, but this opens the way to election fraud, as does voting by mail and other alternatives to physically going to the polls. No good way has yet been developed to insure that votes are actually being cast by the voters, without undue influence on them, other than by having them physically enter a shrouded voting booth where they can cast a secret ballot. Similarly, no one has yet developed a form of mechanical or electronic voting that cannot be rigged. Until such time as this can be done, votes should be on a medium like a paper ballot that can be easily tracked and not easily altered or forged.
This raises other questions: How many levels of elimination should be used, and over what timeframe should such elimination elections be conducted? That should be left open for legislation rather than being specified in a constitution, so that it could be adjusted to suit the situation as people gain experience with the process. For local elections there might be as few as three levels, and three is probably the minimum to enable an unknown to emerge from obscurity and gain momentum. For presidential elections there should probably be at least nine. Contests should probably be separated by two to four weeks.
Would people tolerate going to the polls so often? They would if voting were made more convenient, by holding elections on weekends and at more locations. We might also expect more people to become involved if they see the opportunity for obscure but qualified persons with little or no money to enter such contests and have a chance to emerge as the winner. The election process itself would also become more entertaining, like a sporting event, and therefore draw people away from passive entertainments into civic affairs. It would expand of pool of contenders as more people became involved at the precinct level races and the losers began to build their bases for future runs.
Considerations of this kind also lead to questioning the constitutional wisdom of winner-take-all elections for legislative offices. The problem with this method is that if people of differing political views are uniformly distributed over the country, a majority of 51 percent can take all the seats in a legislative body, and enact legislation or constitutional amendments requiring a supermajority, even though they don't represent much more than half of the electorate. This can lead to a "tyranny of the majority" and the infringement of the rights of those in the minority. A better solution for electing legislators might be to elect 2-5 persons from every area to be represented, the top 2-5 vote-getters, who would cast not one vote each in their legislative bodies, but a number of votes equal to the number of persons who voted for them in the last election, like proxy voting of shares in a corporation.
This method would not avoid the need for an elimination process, but it would ensure that the final outcome more accurately represents the views of the people. This method could not be applied to the U.S. Senate, since equal representation cannot be constitutionally changed for that house, and each senator gets one vote, but the number of U.S. congressional districts could be reduced or districts eliminated and each state could elect its number of representatives, each of whom would then cast a number of votes in the House of Representatives that they received in the general election, rather than one vote each. The members of at least one house of each state legislature could be elected and cast proxy votes in the same way, in many cases without having to amend the state constitution.
These reforms would allow more minority representation, greater diversity of views, and avoid the kinds of abuses that majorities can commit.
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Maintained: Jon Roland of the Constitution Society
Original date: 1995 October 12 Updated: 2002 November 22