One Person; One Vote: Money is Not a Person and Money Shouldn’t Vote
Some Proposed Constitutional Amendments
By Richard Friedman
The last two weeks of Donald Trump’s administration tried our national commitment to representative democracy as no other event since the Civil War. Our republic survived in spite of the flaws in our Constitution, not because of our basic law’s infallible genius. Representative democracy is ingrained in our nation’s DNA in ways that give us resiliency to Trumpian threats, but a future coup attempt by a shrewder and harder working demagogue could put an end to our great experiment of self-rule. We can create a number of safeguards to arm ourselves against a future would-be dictator. Among these has to be a hard look at the Constitution itself, to see how it could be strengthened.
The Constitution was less than perfect from the beginning, both procedurally (to take only one example, the mechanism to select the vice president as originally planned was unworkable) and morally (America’s original sin of slavery was enshrined in our basic law and our other original sin —the genocide of Native Americans and theft of their lands — wasn’t even alluded to). The Constitution is not a perfect document granted to us by a divinity, but rather a brilliant human creation, and one whose imperfections are increasingly problematic. The Framers, recognizing the certainty that the Constitution could not be perfect even for its own times and would certainly require adjusting as time went by, created a mechanism to change it: the amendment procedures.
What follows are a suite of proposed amendments designed to protect our democratic republic. These proposals all address what might be called “housekeeping” – strengthening procedures to keep our government workable and democratic. What I propose is non-partisan reform; amendments in the spirit of the original Constitution while recognizing the social, economic, and technological realities of today. The proposed amendments purposefully avoid political issues that large minorities feel passionately about: I am not suggesting anything about woman’s reproductive privacy, clarification of ambiguities in the First or Second Amendment, a right to medical care, or anything other than structural reform to return us to workable government. Nor do I claim either originality or inclusiveness for these proposed amendments.
The suggested amendments are not worded as they would have to be for what is actually added to the constitution, nor is my list of housekeeping amendments complete. Other excellent housekeeping amendments might emerge from a national conversation about bringing the Constitution into the 21st century.
My hope is that this little essay will stimulate a conversation among people who share my concern for our nation; and out of that conversation people will be encouraged to work toward significant Constitutional reform.
My proposal is for a suite of amendments. Some of the proposed amendments deal with import important issues than others. But it is essential to consider the proposals as a suite because, if considered one-by-one, they will fail to generate sufficient support to pass. We’ve seen this already with the call to abolish the Electoral College. Very few people like the Electoral College; it has resulted in a series of presidents put in office with only a minority of the vote; but most commentators, in thinking about an amendment to get rid of the wretched thing, throw their hands up in despair and proclaim that amendments are just too difficult to pass. If a third party, such as the Liberal Party of New York, adopted constitutional reform and entered into coalition with other like-minded minority parties across America, enough energy might be generated for the two major parties to co-op the cause of reform.
These amendments are rooted in a profound faith that majority rule — as determined by fair elections with maximum participation combined with peaceful transition of power to the winners of elections and protection for the minority — is preferable to any other form of government. Republicans have campaigned recently with the meaningless charge that Democrats are elitist. The real elitists in American politics today are those who would deny majority rule and fair elections to determine just who is in the majority.
The Constitution of The United States is a remarkable document. It created a mechanism where, for the first time in human history, a geographically enormous area peopled by individuals with diverse religious views and political opinions could nevertheless find ways to govern themselves in a democratic way. The Founders recognized that a democratic republic would be stable and just only if the political center could isolate the demagogue-led mob on the one hand and the would-be monarch on the other. Their solution was a balance of powers among the three branches of the federal government and another balance between the individual states and the central government.
The Trumpian challenge to democratic institutions is not the first time our Eighteenth-Century constitution has had to be adjusted to save the Republic. The system fell apart in the middle of the 19th century and could only be saved following civil war. The triumphant North passed a suite of constitutional amendments — what some refer to as the Second American Revolution – that resolved the worst of the tensions inherent in the original document and created mechanisms by which a strong political center would govern for a century and a half.
But the same governing rules that empowered the Center a century ago, now favor extremist fringes. Just as in the years before the Civil War, compromise has become a dirty word to many, and governance has become almost impossible. It is time for a Third American Revolution to check the extremes and restore the middle by modernizing the Constitution with a new suite of amendments, to be adopted using the same mechanisms that have been used for all previous amendments.
The elections of 2016 and 2020 underscore structural weaknesses in our most basic political institutions — weaknesses that we either correct or see used to destroy our democracy. The immediate task before us is more important than specific political agendas or particular ideologies. Our plight is neither Republican nor Democratic, neither conservative nor liberal. We face the necessity of non-partisan reform to save our nation as a representative democracy, living under the rule of law, with strong civil liberties and civil rights protecting all citizens.
Today, the center is weak and extremists threaten our unity, justice, perhaps our liberty, and certainly our tranquility. In recognition of the framers’ intention of creating a more perfect union, and in appreciation of the brilliance and generosity of that hope, I suggest the following amendments.
1. The President and Vice President, running for election on a single ticket, will be elected by direct popular vote. (Abolish the Electoral College. Of the six Presidential elections in this century two have resulted in the candidate with only a minority of the popular vote winning office. Presidential elections are decided by a handful of people in swing states. By definition a minority President is an elitist.)
2. If no candidate gets an absolute majority of popular votes, the House of Representatives would vote for the President and Vice President, with each Representative obligated to vote for the candidate who won either the majority or plurality of votes in his or her district.
3. Creation of a non-geographically limited Federal Election District for Presidential elections where any citizen who is not a legal resident of a State or the District of Columbia could now vote.
(United States citizens who are not legal residents of an entity with an organized Presidential election under the current Constitution are not now eligible to vote for President. This proposed amendment gives the vote in Presidential elections to citizens resident in Puerto Rico, Guam, Samoa, and the U.S. Virgin Islands as well as United States citizens who are legal residents of foreign countries. These people would still be disenfranchised in case of a tie vote — see proposed Amendment #2. Perhaps someone reading this proposal can find a way to correct this obvious flaw. It should also be noted that, in effect, this proposed Amendment nullifies the Twenty-Third Amendment.)
4. A. Depriving an individual of the vote in Federal elections may coincide with the period of incarceration for a felonious crime of which he or she was convicted following due process but may not extend beyond the period of incarceration.
B. Deprivation of the right to vote following a felony conviction may be included among the punishments but is not to be automatically assumed to be included.
(Lifetime disenfranchisement is possibly unconstitutional anyway under the prohibition of cruel and unusual punishment provision of the Eighth Amendment and the citizenship and voting provisions of Fourteenth and Fifteenth Amendments, but no one to my knowledge has tested this in the courts. From a purely pragmatic point of view, I would guess that a convicted felon, permanently denied the vote, will feel even more alienated from society than he is by “only” being locked up and therefore more likely to become a recidivist. And, to be blunt about it, life-time disenfranchisement is racist.)
5. A. Establishment of a nonpartisan Federal Election commission to create the most compact possible congressional districts.
B. The commission would also create federally mandated voting procedures to minimize politically motivated suppression of voter registration and eliminate voter fraud.
C. The voting standards recommended by the Commission would become the uniform national standard unless overridden by two-thirds vote of both houses of Congress.
(There is no place for gerrymandering or legalized voter suppression in a representative democracy.)
6. A. Each state is to be explicitly allowed to experiment with early voting, distant voting, electronic voting, ranked order voting, or any other form of voting that would help maximize the vote in federal elections.
B. Citizens are to be granted up to four hours off from work at full pay to vote on election day with it being the citizen’s responsibility to demonstrate to their employer that they used the time to vote and the responsibility of the entity organizing the election to provide proof of voting.
(There is nothing magical about the four-hour suggestion; perhaps Voting Day should be a paid national holiday, or there should be a voting weekend. The point is that voting should be easy and that people not be financially penalized for voting.)
7. A. No candidate for federal office may accept donations, loans, gifts, transfers of funds, cash, goods, or services from anyone who is not a biological human being.
B. No donations, loans, gifts, transfers of funds, cash, goods, or services may be accepted by a candidate for federal office from anyone who is not a citizen of the United States at the time of the transaction.
C. Donations, loans, gifts, transfers of funds, cash, goods, or services from any individual to a candidate in any calendar year may not exceed one percent of the total annual compensation that accrues to the office the candidate is seeking.
D. There is no limit to what a candidate may contribute from his or her own funds, but all donations, both from the candidate’s own funds and from other people, must be fully documented and made public.
E. Nothing in this amendment may be construed as limiting public funding of election campaigns should Congress pass such legislation.
(This proposed amendment and the one that follows addresses the Citizens United decision. This is a tricky issue because, while I wouldn’t want to open the door to infringement of freedom of speech, financing elections has tremendous potential for corruption. Under current policy we have legalized bribery: before the election in the form of campaign donations and “public service announcements” — which are addressed in the next proposed amendment — and after completing the term of elected office in the form of highly compensated employment, lecture fees, and publishers’ advances for books.)
8. A. All candidates for elected federal office must make full and public disclosure of both their income and taxes paid for five years prior to the election, for each year the person holds office if elected, and for ten years after leaving office.
B. Persons elected to Federal office (and their spouses and children) may not work as lobbyists for five years after leaving office.
(The reason for public disclosure of income after leaving office is the hope that people who have served in public office can be shamed from the most flagrant taking of “ex-post-facto bribes.”)
9. Media may refuse to disseminate any message but must publicly acknowledge who pays for any message they do disseminate. (People have the right to pay for public service announcements on media, but under current rules a candidate closely associated with an issue or set of issues can have his or her campaign indirectly and anonymously financed. Public acknowledgment of media financing at least begins to counterbalance the advantages of deep pockets.)
10. The President is to be granted the line-item veto. (Currently, forty-four state governors and the Mayor of Washington, D.C. may exercise the line-item veto, and it works well to lessened legislative gridlock and grandstanding.)
11. Members of Congress would have to live by the same laws, pensions, and health insurance regulations they enact for those of us who are not members of Congress. (I’m borrowing this from Warren Buffett. Good government, provided by patriotic citizens doing their civic duty by serving in Congress, is a non-partisan issue. Civic duty can and should be well-compensated, but elected office should not be an opportunity to get rich or gain special privileges.)
12. A. Individuals will be limited to three terms of four years in The House of Representatives and two terms of six years in the Senate. These terms need not be consecutive.
B. The House terms are to be staggered with half beginning in Presidential election years and half in the off-year elections.
(This amendment would allow time for legislators to acquire experience and form collegial relationships without turning legislative work into a life-long career. Increasing the House to four-year terms lessens the perpetual campaigning that seems to mark the lives of our current Representatives.)
13. A. All federal judges, including those on the Supreme Court, will be nominated by the President and confirmed by the Senate within ninety days of Presidential nomination. The term of service for federal judges will be ten years.
B. Confirmation of Federal judges will require a two-third majority of the Senate.
C. If an individual fails to garner two thirds vote of the Senate the President must nominate another candidate, the Senate must vote on that candidate within ninety days on that nomination, and the nominee will require only a simple majority to be confirmed.
D. There is no limit to how many ten-year terms an individual may serve on any court.
(Term-limits for federal judges take some of the politically charged poison out of the nomination and confirmation process of judges. The mandatory vote within ninety days will protect against politically motivated stalling by the Senate and clarify politically inspired discussion about appointments in Presidential election years while at the same time encourage Presidents to nominate candidates who will be likely to garner two thirds of the vote. Clause “D” is designed to prevent a minority of one third plus one Senators from permanently blocking all judicial appointments but requires – when the Senate majority and the President are of different parties – some minimal good will on the part of the Senate majority party. I can think of no practical way to force good will on an opportunistic and cynical majority except punishment at the polls come the next election.
These proposed amendments address flaws in the Constitution that currently tend to favor Republicans. But these same flaws have favored Democrats in the past and in all likelihood will favor Democrats in the future. It would be shortsighted for Republicans to oppose these reforms on partisan grounds. These thirteen amendments would strengthen the center of political life, help promote a more perfect union, and lessen divisive extremes from splitting our nation and paralyzing government. They represent non-partisan reforms to restore the ideals and intentions of the Founders.
Dr. Friedman has a PhD in American history, taught history for several years at the university level and then became a psychoanalyst and has been a practicing psychoanalyst and psychotherapist for over 40 years in New York. He believes his understanding of history and how societal change occurs is strongly influenced by his understanding of the mind and how individuals change is strongly influenced by his understanding of history.
We welcome and encourage your comments about this presentation and the ideas contained within.
“If a third party, such as the Liberal Party of New York, adopted constitutional reform and entered into coalition with other like-minded minority parties across America, enough energy might be generated for the two major parties to co-op the cause of reform.”
Really? Dream on.
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“But it is essential to consider the proposals as a suite because, if considered one-by-one, they will fail to generate sufficient support to pass.”
I suspect the opposite may be true.”
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As one who has reread the US Constitution several times with much interest, I cannot resist commenting upon the above amendment proposals.
1.) Some pundits have suggested that popular election may be achieved without a constitutional amendment if a large majority of states choose electors on the basis of national electoral majority. Perhaps this is more likely than amendment passage.
2.) This amendment wouldn’t necessarily avoid an impasse.
3.) Feasible only if amendment one is passed.
4.) Why limit it to federal elections?
5.) What guarantees non-partisanship? How would such a commission be selected? Too vague.
6.) This regulation need not rise to the amendment level.
7.) Subsection B may by gamed. Rather than mandating such regulations, perhaps it would be more prudent to empower Congress to make such regulations.
8.) Unnecessarily harsh, especially to relatives.
9.) Media must not be so regulated — it is a slippery slope to restriction.
10.) What’s a line item? Legislation may be written to encompass many things in a run-on sentence hundreds of pages long.
11.) Leave well enough alone. This proviso may trigger endless bickering about details.
12.) Such term limits would deny excellent people continuation in office. Yes, there are good reasons for term limits, yet I hate to have a popular celebrated legislator deprived of opportunity to continue excellence.
13.) Lifetime appointment assures judicial independence. I wish states would do the same.
My commentary is not to be construed as criticism of Dr. Friedman. Much thought, it seems, has been put into these proposed amendments — some amendment is to be desired.
M. Jaffe’s comments, while implicitly agreeing that something should be done to make bring our Constitution up to date, assert that it is unlikely anything will be done. His pessimism fascinates me. Where does it come from? Historically America has often been slow to recognize its problems. But once we finally see that something should be done, we’ve been very good at rolling up our sleeves and getting to work. I am sure that all over America people are coming to conclusions similar to mine: that the Constitution needs to be brought into the 21st century through amendments that will make it more democratic and less vulnerable to power grabs by demagogues and their tax-phobic billionaire enablers. And I’m also sure that if we fail to strengthen our Constitution, anti-democratic elitists will kill our republic.
What I find encouraging about M. Jaffe’s comments is that they accept my underlying premise. While my solutions might not be workable, M Jaffe implicitly accepts the problem that my solutions are designed to correct: the Constitution as it now stands is failing in the Framers’ main task — protect the political middle so that different factions in our complicated nation can make the compromises essential to make our government work.
M. Jaffe raises the real possibility that I am both naïve about the American political process and that I haven’t thought through some unintended consequences of my proposals. In defense of my proposals, let me comment that M. Jaffe misunderstands line-item vetos which, in the 44 states and the District of Columbia that have adopted the practice, allows the governor to eliminate not just whole sentences but parts of sentences and even individual words from sentences. Of course, the state legislatures have procedures to override these vetoes, but the threshold to override is higher than the threshold to pass the legislation in the first place so poison pills are much more difficult. Similarly, M. Jaffe seems unaware that a number of states have successfully adopted non-partisan election commissions to draw non-gerrymandered congressional district boundaries, design ballots, establish voter registration procedures, and run the actual election process. I could make similar comments about each of M. Jaffe’s objections, but these are quibbles.
Perhaps none of my proposed amendments will achieve the essential task of reinvigorating the political center. What is important is not that my specific solutions are adopted, but that people who care about our republic’s future begin to think about ways to isolate political extremists and find ways to allow government to work again. I hope that M. Jaffe and other readers, in addition to pointing out how my ideas are unworkable, contribute their own ideas about solving our nation’s Constitutional crisis.
3-20-2021
These are thoughtful proposals well worth consideration. The root of the problems as I see it is the current state of campaign finance; in other words, the 2010 Citizens United decision was bad public policy and needs to be overturned — the late great Senator John McCain (R), former Senator Russ Feingold (D) and activist Ralph Nader were all critical of that SCOTUS decision. If we can reform campaign finance, then these other proposals have a chance. Time will tell.
— Stephen R. Rolandi