Amendments: The LaRue-Olsen Debate Continues and Welcomes Others

Rick LaRue is an independent analyst of constitutional electoral structure who writes at Structure Matters. His 40-year career in Washington, DC nonprofits included service as the deputy director of the Eisenhower Institute and of the American Society of International Law.

In this week’s “Constitutional Conversations” post, Rick LaRue responds to Henry Olsen’s commentary in his post here two weeks ago, “A Response to Rick LaRue: What to do to Ensure the Constitution’s Democratic Promise,” on his proposals for electoral reform. LaRue and Olsen disagree about term lengths for Congress and the President, but they agree that debates like this one about constitutional change are the best path to the institution of healthy reforms.

I much appreciated Henry Olsen’s comments on and critiques of my four-amendment proposal to improve our constitutional electoral structure, which recently appeared in Constitutional Conversations. That he found the column “provocative and useful” should encourage more thought experiments about constitutional change, for which this space is ideal.

A few clarifications and corrections are in order. First, ideas for amendments do not rise to the top of any to-do list simply because they involve the Constitution. They supplement other reform proposals, not supplant them. This is particularly the case in election reform, which at my last count had some 38 distinct topics, any one of which merits attention.

This list includes what to do about gerrymandered congressional districts, a concern of Olsen’s (and mine too). But redistricting – broadly defined to include consideration of multi-member districts and the size of the House – is as much or more about process than structure, the focus of my proposal. It also is not definitively a constitutional issue; statutory avenues remain available. The same holds for campaign finance. Both topics cry out for solution, but they do not necessarily require resolution via amendment, as do replacing the Electoral College or changing term limits and term lengths.

It also is the case that the political environment must evolve substantially before any amendment becomes viable. Tom Ginsburg and James Melton are among the scholars who clarify how “constitutional culture” either inhibits or enables amendments. Given that we are in a common decades-long gap between amendments, the constitutional culture looks grim for supporting amendments. While we can be confident that our politics will be different in the coming decades, it is less clear when (hopefully not “if”) they will be supportive of amendment activity. When that does happen, it will only be because an array of non-constitutional electoral reforms had been enacted (e.g., perhaps involving redistricting, campaign finance or partisan, winner-take-all, multi-candidate primaries; this last, clearly non-constitutional process issue could be the most urgently needed of all).    

As for Olsen’s specific critiques, he suggested that I was advocating compulsory voting, but that is not my proposal. Like Rick Hasen, John Vile and others, I think the right to vote belongs in the Constitution affirmatively, thereby strengthening the Elections Clause (Article II, Section 4), which grants Congress superseding authority over “the manner” of conducting elections. Accordingly, such an amendment would anchor the establishment of minimum standards and best practices for enabling voting and increasing turnout in national elections. And, to remind, the reason I include an affirmative voting amendment in the Bill of Structures is that turnout determines the foundational legitimacy – the substructure – for any government erected over it.

I commend Olsen for posing 30-year congressional term limits. He is right to want to shift the debate away from the too-short, two-Senate term limit (12 years). I would be happy to have my proposed two-decade minimum be the lower end of any range to be seriously vetted. One way to help inform such consideration would be to ask the Congressional Research Service to revive its discontinued report on congressional members who have served at least 30 years. The CRS could include data on those who served at least 18 years and 24 years as well, which could inform such questions as: What are the different impacts, if any, between 24- and 30-year limits? Would 18 years be too short, as Olsen and I suspect? Let’s find out.

I differ with Olsen on whether a three-year second term would produce a more immediate lame-duck presidency than we already experience when an incumbent earns four more years. Whenever a president is reelected, attention promptly shifts to prospective successors. I’d prefer having a lame duck for only one-third of a presidency rather than for one-half. And I also believe that a structure with a six-year first term and three-year second term will make second terms other than automatically sought. Olsen may be right that a three-year second term is short in the following ways: incumbents may feel they have accomplished enough in their now-longer first term and don’t need the three bonus years, or they may feel that the extra years are not worth risking reelection failure at the less favorable “six-year itch.”

It bears noting that one third of U.S. presidents have been willing to reduce their tenure by 25% (at least 15 have expressed support for a single six-year term). If the final years in the White House – as presently structured with two equal four-year terms – are worth so little to so many occupants, we should develop ways to minimize their reduced value.

Finally, I would reconfirm that countering the permanent campaign is not the primary reason to shift to a three-year election cycle. Reducing campaigning relative to governing is a worthwhile reform (one of the 38), but saving time is not an adequate reason alone for amending the Constitution. There are 13 additional benefits gained when we correct the governing problems produced by two equal four-year terms for the presidency (see suggested readings below). The two most important ones are better matching voting behavior and more accurately reflecting the productive value of each term.

Constitutional design always confronts the challenge that governing structures are only as functional as the people who occupy them are good. The Framers frequently reminded us of this. I contend that we have enough evidence to conclude that an incumbent president only has to be okay or not terrible to be reelected at the “four-year crutch;” six years in, s/he actually would have to be a good president to earn more time.

I appreciate Henry Olsen’s consideration of these ideas. He is right to be wary of solutions in search of a problem. I hope all readers of Constitutional Conversations, upon looking more closely at our constitutional electoral structure – the connective tissue between our democratic principles and our formal institutions – will consider its erosion a problem to fix instead of a condition to accept.

If readers are interested in learning more, I would suggest starting with my two articles in the Election Law Journal: “The Second Term Isn’t Cursed, But the Timing of Reelection Has Become So” (2018), and “We Love the Bill of Rights. Can We Like a Bill of Structures?” (2022). And I add my voice to the invitation to participate in this debate. Such longer-term civic engineering needs more hands on deck. Let the sharing and vetting expand.