A Response to Rick LaRue: What to do to Ensure the Constitution’s Democratic Promise

Henry Olsen is a Washington Post columnist, a senior fellow at the Ethics and Public Policy Center and the Thomas W. Smith distinguished scholar in residence at Arizona State University.

Rick LaRue’s essay on Constitutional changes to enhance America’s democratic elections is provocative and useful. By failing to address the ills caused by partisan redistricting, however, it doesn’t go far enough.

LaRue counsels three constitutional changes. First, combat entrenched Congressional power by establishing term limits, much as entrenched presidential power in one person was controlled by the two-term limit enshrined by the XXII Amendment. Second, combat the “perpetual campaign” and reduce presidential incumbency power by changing term lengths. Finally, LaRue wants to create “an obligation” to vote, which presumably means voting should be mandatory for all.

The first idea is basically sound even as the problem it addresses is exaggerated. Many legislators become institutions, and the resources incumbents can command make their defeats exceedingly difficult. This hampers democracy as people elected decades ago presumably are less in tune with current sentiment, and hence frustrate genuinely democratic governance. I think that’s less of a problem than many – many legislators prove to be remarkably flexible with regards to their principles and flow with prevailing popular winds rather than seek to thwart them via inside baseball, rear guard action.

But a suitable balance between legislative expertise and regular turnover can be struck. I would argue for a 30-year limit that covers both Houses of Congress but exempts service in the executive branch. That allows for five Senatorial terms for someone who serves only in that chamber and 15 two-year House terms for someone committed to that arena. But any reasonable balance that recognizes that many capable and publicly spirited people can be “career politicians” would suffice.

The question regarding term lengths is less straightforward. The perpetual campaign is a problem, but any follower of politics in other countries with longer term lengths shows it cannot be eliminated. Australia’s federal parliament has the term lengths LaRue recommends, and no one would say that three-year House terms have eliminated the perpetual campaign. That added time could encourage members to take a few more risks with policy, as there is a greater chance any long-term programs could come to fruition. But lengthening House terms by a year strikes me as a solution in search of an important problem.

LaRue’s changes to presidential terms lengths are more problematic. He says that increasing the first term to six years would “make incumbents compete at Kevin Phillips’s ‘six-year itch’ when voters are readier for change”. But that cycle is in part dependent on the current electoral cycle. Plenty of parliaments have five-year terms and there seems to be no comparable “five-year itch” that leads to regular turnover in government. Stretching a president’s first term to six years would likely give that person more power in the short term and make that person even less tethered to popular sentiment.

Reducing the second term to a mere three years, on the other hand, is a simply bad idea. That person would immediately be a lame duck as the ambitious start their efforts to succeed him. That gives a two-termer only one year to have any substantive, non-politically driven impact. It would be even worse if combined with LaRue’s proposed House term extension to three years. That would mean no representative need fear retribution at the ballot box in a midterm by rejecting the second-term president’s program.

Compulsory voting would have some salutary effect on voter turnout, but much less than many advocates think. Turnout for the 2020 presidential race was 66.6 percent, according to the U.S. Election Project. That is not much lower than the turnout that countries with compulsory voting experience.

I looked at five nations with compulsory voting – Argentina, Australia, Belgium, Brazil, and Turkey – and charted their voter turnout as listed on Wikipedia for their last two national elections. All have relatively high shares of invalid votes cast – not surprising, since compulsory voting forces people who don’t want to vote to at least cast a blank ballot. The trick is to compare foreign apples to U.S. apples and derive an equivalent to the U.S. “valid vote only” figure.

Australia’s “formal vote” turnout – the figure comparable to the U.S.’s 66.6 percent – was 86 percent in 2019 and 85 percent in 2022. Other countries valid vote turnout figures ranged from a low of 71 percent (Brazil 2018) to a high of 83.5 percent (Belgium 2014). The average valid voter turnout in these ten elections was shade under 80 percent. That would add about 30 million votes in presidential years – a lot, but not a massive sea change.

Partisan redistricting – drawing lines for legislative districts that are intentionally skewed to favor one party – is a much greater threat to modern democracy than any of the problems LaRue seeks to ameliorate. This hallowed tradition effectively robs swing voters of their power to change governments, entrenching one party for decades if done right even if a majority of the state’s voters want the other party to govern. Overlooking this mountain while training his eye on comparative molehills is a significant omission.

Given the Supreme Court’s unwillingness to hold that such chicanery violates the Constitution, a Constitutional amendment is the best way to outlaw that barbarous practice. Many potential amendments could do the trick.

The easiest way to abolish partisan redistricting is to abolish districts. We inherited the tradition of geographic-based districts from Great Britain, but most of the world does not use them to elect their versions of the House. Switzerland, also a federal republic, allocates seats in its lower house to each canton by population and then uses proportional representation within each canton to elect members. We could easily adopt such a system, and that would empower Democrats in much of the South and Midwest and Republicans in the Pacific Coast and Northeast.

Those devoted to the traditional single-member district system could propose an amendment that would ensure those seats are drawn fairly and without undue political influence. Other English-speaking democracies use non-partisan boundary commissions to redraw their seats. Commissioners are required to respect local city or county boundaries and are often permitted to adopt larger deviations from a seat’s ideal population than does U.S. law. Along with procedures for public comment, it means districts typically overlap with recognizable communities and are not simply grotesque agglomerations of individuals who share similar politics even if they live hundreds of miles apart.

Republican government requires that the people select their representatives and leaders. Those people should also act in accord with popular sentiments, even if they also seek to “refine and enlarge” their views as James Madison suggested in Federalist 10. Some of LaRue’s proposed changes would advance that purpose and should be seriously considered. Combined with a serious effort to eliminate partisan gerrymandering, they could help ensure that our Constitution’s democratic republican promise is kept.