Twelve Constitutional Amendments Worth Considering

The following twelve constitutional amendments would be an improvement and, if proposed, might actually pass with bipartisan support.

These aren't the only aspects of the U.S. Constitution which I'd like to change (e.g. repealing the Second Amendment), but these are all likely to be adopted with wide bipartisan support if this proposal are seriously advanced.

Each proposal is designed to stand alone, but it might be desirable to propose them as a package similar to the twelve amendments in the original Bill of Rights ten of which were adopted right away and one of which was adopted much later. 

Coming up with a name for the package is hard because a "Democratic Bill of Rights" would cause many uninformed people to think it was about the Democratic party and not little "d" democracy. Perhaps the "Fair Politics Amendments" might do the trick.

The process by which constitutional amendments are proposed and adopted is set forth in Article V of the U.S. Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

No prior amendment has been ratified in state conventions, but I would propose that the most fruitful approach would be to have Congress propose this package and for the package to be ratified in state conventions, rather than by state legislatures, which may be the most resistant to legislation loosening up the political status quo that they benefit from themselves. 

1. Lame Duck Legislation

Proposal

After election day in an even numbered year, require any legislation passed  to receive a two-thirds majority of both the House and the Senate, and require any nominee proposed to the U.S. Senate for confirmation to receive a two-thirds majority (effective for the first session of Congress after it is adopted).

Analysis

This is a common sense measure that many people would easily favor, given the obvious and historically precedented risk of abuse by lame duck congress.

2. Ending The Electoral College

Proposal

Elect the President of the United States by a direct popular vote conducted in a manner provided by law. If no candidate receives a majority in a direct popular vote, hold a runoff election between the two candidates receiving the most votes in the direct popular vote, held on the first Tuesday after the second Monday in December. The right to vote in this election would extent to all American citizens without regard to place of residency. Other aspects of eligibility to vote would be established by Congress subject to existing constitutional standards for the franchise. This would take effect in the first Presidential election held after it is ratified. Jurisdiction over the administration of elections in each state and litigation over state election administration, including vote counting, would be vested exclusively in the state courts of that state subject only to U.S. Supreme Court review, with the conduct of federal elections outside of U.S. states governed by federal law. In the highly unlikely event of a tie vote, the winner would be determined by random chance.

Analysis

Population per electoral vote for each state and Washington, D.C. (2010 census) per Wikipedia.

Despite naive political logic, this proposal has roughly 70% support in the population at large, strong bipartisan support in every U.S. state even in small and conservative states that would see their clout in Presidential elections reduced, for example, 69% support in Wyoming, 70% in Alaska, 72% in Montana, 75% in Vermont, 74% in Rhode Island, 81% in West Virginia, 67% in South Dakota, and 66% in Utah.

Notably, both major U.S. political parties give party members who reside in places that do not have electoral votes, such as U.S. territories and "Americans abroad" a say in their party's Presidential nomination process.

Of course, it would need to be ratified by only 38 states (39 if D.C. or Puerto Rico or both were admitted as states), and the percentage of popular support in the 38-39 states where support is strongest in polls would be even greater.

A two round system in the event of a spoiler candidate is preferable to ranked choice voting because it is easier to administer, does not require voters to engage in hypothetical thinking, and allowed for further time for voters to be informed about candidates in close or indecisive elections which voters favoring a candidate who is eliminated in the first round might not engage in otherwise.

A two-round system is used to elect the presidents of 48 countries (out of 61 other than the U.S. that have Presidents at all): Afghanistan, Argentina, Austria, Benin, Bolivia, Brazil, Bulgaria, Burkina Faso, Cape Verde, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Cyprus, Djibouti, Dominican Republic, East Timor, Ecuador, Egypt, El Salvador, France, Finland, Ghana, Guatemala, Haiti, India, Iran, Indonesia, Kyrgyzstan, Liberia, Malawi, Moldova, North Macedonia, Peru, Poland, Portugal, Romania, Russia, Senegal, Serbia, Slovakia, Slovenia, Togo, Turkey, Ukraine, Uruguay and Zimbabwe.

Instant runoff voting is used in Presidential elections only in the Republic of Ireland.

Most other twelve countries with Presidents, in the cases where they directly elected at all (in some of these countries the parliament selects the President), use plurality voting as the U.S. does, which is subject to spoiler effects that the a two dominant party Presidential primary system partially, but not completely mitigates.

3. Congressional Term Limits

Proposal

Limit U.S Senators to two terms (a partial term counts if it is three or more years), and representatives in the U.S. House of Representatives to six terms (a partial term counts if it is one or more years), after the amendment is ratified. 

Analysis

At the beginning of the current 115th Congress, the average length of service for Representatives at the beginning of the 115th Congress was 9.4 years (4.7 House terms); for Senators, 10.1 years (1.7 Senate terms). So, while this proposal would shorten the average tenure in Congress over time, it wouldn't do so in all that radical a fashion.

Note that the maximum combined service in Congress under this proposed amendment is still 24 years in ordinary cases, and up to almost 28 years considering vacancy appointments. The amendment would apply with even less force to incumbents at the time the amendment is ratified, but it would mitigate undue incumbency effect in U.S. House and U.S. Senate elections in the long run.

A national poll in 2018 found that 82% of Americans favor term limits for Congress.

4. Require Majority Support For Election To The U.S. Senate

Proposal

If no candidate receives a majority in a direct popular vote, hold a runoff election between the two candidates receiving the most votes in the direct popular vote, held on the first Tuesday after the second Monday in December.

Analysis

This would eliminate third-party spoiler effects in U.S. Senate elections. Some states, but not all, already have this requirement. It would be better not to extend this to Congressional elections to leave open the option of proportional representation in those elections.

California, Louisiana, and Washington State use a blanket primary two round system in which all candidates from all parties compete in a single first round election (not proposed to be mandated by this amendment) that has this effect, because a first round winner, or a second round winner, if necessary, must secure a majority of the votes cast.

Georgia has a majority vote to win requirement combined with partisan primaries.

Arguably, this could be done by law, rather than by constitutional amendment, pursuant to Article I, Section 4 of the United States Constitution which states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

5. Grounds For Impeachment

Proposal

Expand the grounds for impeachment from "high crimes and misdemeanors" to include incapacity, incompetence, failing to faithfully execute the laws, and receipt of unconstitutional emoluments, effective after the first Presidential election following its ratification.

Analysis

The grounds for impeachment are nonjusticiable but the symbolic and rhetorical effect would probably be to make Presidents more accountable to Congress. It would leave in effect the two-thirds majority requirement to remove a sitting President who has been impeached from office.

Notably, both a Democratic President (Bill Clinton) and a Republican President (Donald Trump) have faced a recent, unsuccessful impeachment attempt.

6. Campaign Finance

Proposal

Authorize Congress to establish by law limits on the amount of money that individuals and entities may spend on campaigns for federal office and to enforce the same.

Analysis

This would overrule the 2010 U.S. Supreme Court case of Citizens United and related precedents, and has wide bipartisan support. According to the Pew Research Center in 2018: "77% of the public says “there should be limits on the amount of money individuals and organizations” can spend on political campaigns."

This is a complex and detail rich problem and this amendment does not itself put in stone a solution to it, it merely authorizes Congress to come up with solutions that the public strongly desires.

7. Congressional Representation In U.S. Territories

Proposal

Give any self-governing district, commonwealth, or territory of the U.S. the number of seats in the U.S. House of Representatives that it would have if it was a state. Thus, the U.S. Virgin Islands, American Samoa, Guam and the U.S. Mariana Islands, would each get one seat in the U.S. House.

Analysis 

Do this promptly after granting D.C. and Puerto Rico statehood as part of an amendment to repeal the 23rd Amendment. This way, states know that if the amendment is not ratified, that these territories might be granted statehood. and that a rump D.C. including only the core capitol area of D.C. would still have three electoral votes.

It is fundamentally unfair that any U.S. citizens who live in the U.S. and are subject to its laws should be denied the right to have any say in the making of its laws. Congress already gives each of these jurisdictions non-voting commissioners in the U.S. House.

The dilution in the power of existing states in the U.S. House of Representatives would be less than 1% if this occurred after the District of Columbia and Puerto Rico gained statehood, and less than 3% if they did not, and the percentage dilution could be reduced by increasing the number of seats in Congress which may be done without a constitutional amendment.

8. Judicial Term Limits

Proposal

Limit Article III federal judges and justices (including but not limited to the U.S. Supreme Court) appointed after the effective date of the amendment to 16 years of service in any one appointment, in lieu of the current lifetime appointment, and bar judges and justices from serving as "senior judges" after their term of service expires. The average term of service of non-incumbent U.S. Supreme Court justices in U.S. history is just under 17 years.

Analysis

There is 77% support in polls for term limits for lifetime appointment judges. This would also reduce the incentive to appoint very young, unproven justices to high judicial office.

9. Requiring Bipartisan Support To Confirm Judges

Proposal

Require all appointments of Article III Justices to receive a 60% majority on the merits in the U.S. Senate to confirm their appointments, and eliminate recess appointments of Article III justices.

Analysis

Sixty percent tactic support was the de facto requirement under U.S. Senate rules for U.S. Supreme Court appointments until 2017, so the case for making the change now that didn't exist before is strong. Most people, even with high levels of civic awareness, don't even know that recess appointments of judges are possible (or for that matter that recess appointments of any kind are possible).

History shows that justices who receive less than 60% support in the U.S. Senate tend to be extremists, while the requirement of at least some bipartisan support would lead to more moderate judicial appointments. For example, prior to the Trump Presidency, no SCOTUS justice was confirmed without a filibuster proof majority to vote (60 votes in recent years and a two-thirds majority before that) on holding a vote. 

Gorsuch was confirmed by a 54–45 vote. Kavanaugh was confirmed by a 50-48 vote. Barrett was confirmed by a 52-48 vote. None of them would have survived a filibuster. 

Alito and Thomas got past the filibuster, but Alito confirmed by a 58-42 vote and Thomas was confirmed by a 52-48 vote. 

In contrast, Roberts' confirmation vote was 82-22, Sotomayor's was 68-31, Breyer's was 87-9, and Kagan's was 63-37.

This would reduce the rate at which judges rated unqualified are confirmed to essentially zero, without affording the American Bar Association any formal constitutional or statutory power.

Unqualified judges and extreme judicial partisanship that the status quo encourages undermines the authority of the judiciary and the long term stability of the country as a constitutional democracy.

10. Fixing The Size Of The U.S. Supreme Court

Proposal

After increasing the size of the U.S. Supreme Court to 13 justices in a Biden Administration (resulting in a 7-6 liberal majority on the U.S. Supreme Court) without a constitutional amendment, propose a constitutional amendment to fix the size of the U.S. Supreme Court at 15 justices with the two additional justices to be appointed only after the next Presidential election. Also require an affirmative vote of eight justices would be required to reverse a lower court decision on the merits.

Analysis

This would provide an answer to the temptation to increase the size of the U.S. Supreme Court every time you don't like its composition while leave the question of a liberal or conservative majority in the hands of the President elected after the amendment is ratified. A larger court, ideally with term limits, would make U.S. Supreme Court appointments more common and more evenly spaced, while reducing the stakes of any one appointment. Also, if bipartisan confirmation requirements were adopted, the more moderate mix of judges on the high court would reduce the stakes that brought us to the current crisis where conservative extremists have a majority on the high court. 

11. Presidential Qualifications

Proposal

Eliminate the "natural born citizenship" requirement for Presidential candidates. As follows:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Analysis

This constitutional provision is the only one in the U.S. Constitution or law that makes a distinction between "natural born" citizens, naturalized citizens and possibily other citizens who are neither "natural born" nor naturalized citizens. It is ill defined. It has ruled out, or cast unproductive, anti-democratic doubt on multiple well qualified attractive U.S. Presidential candidates in both major political parties for a reason that shouldn't matter, for example, Henry Kissenger, Arnold Schwarzenegger, John McCain, Ted Cruz, Barack Obama, Marco Rubio, Bobby Jindal, Tulsi Gabbard and Kamala Harris.

This amendment is no strong partisan valiance. Prominent and popular politicians in both political major political parties would benefit from the proposal.

12. Gerrymandering 

Proposal

Authorize Congress to establish by law standards for drawing Congressional districts, or other election law reforms, to better align the collective outcome of elections for the U.S. House of Representatives in a state with the proportionate partisan preferences of the people in that state, that are thwarted by gerrymandering, and to enforce the laws enacted pursuant to this Amendment.

Analysis

This doesn't proposed to solve the problem of gerrymandering, which is non-obvious, but provides a mechanism for a national solution to be developed which U.S. Supreme Court decisions declining to address partisan gerrymandering such as the 2019 decision of Ruccho v. Common Cause, largely preclude.

There is strong bipartisan support for ending or reducing gerrymandering.

Allowing Congress to address gerrymandering by law shouldn't be too controversial in principle, and it is a collective action problem that takes national action, because a party strong in one state otherwise needs to gerrymander ruthlessly to counteract gerrymandering in the opposite direction in other states.