The election results, which brought us President Donald Trump and continued Republican control of Congress, were the product of a dysfunctional democratic system that screams out for repair. Consider the many ways our creaking, antiquated institutions of democracy distorted and subverted the will of the people in 2016.
Electoral College. Let’s start with the archaic, undemocratic Electoral College. In the stunned reaction to Tuesday’s election results, too little attention has been paid to the fact that Trump lost the national popular vote. It wasn’t even close. The slow trickle of results from California and Washington has obscured the final result: analysts project that Hillary Clinton is on track to top Trump’s total by as many as two million votes. So, for the second time in 16 years, the candidate chosen by a majority of the nation’s voters has lost the election. How can such a result be considered democratically legitimate in the 21st century?
As if that weren’t bad enough, the race to win 270 electoral votes stunted and distorted the campaign in ways that hurt the progressive cause. The focus on electoral votes, and not the people’s vote, incentivizes the campaigns to focus their energies on winning a few battleground states while ignoring the rest. For example, since the July convention, Clinton visited North Carolina 10 times and Pennsylvania 13 times. Her supporters blanketed those states to turn out every last voter, with evident diminishing returns. Imagine what the results have been if the Democrats had an incentive to encourage citizens to make their voices heard in New York and California as well. Under the current system, these states received almost no attention from the Democratic nominee apart from fundraising events featuring the chance for a photo op with Cher. Abolishing the Electoral College would free the candidates to go where their bases are, with the goal of rallying the most voters to their side.
We did dodge one looming disaster. If this had turned out to be a squeaker in electoral vote terms, we would have all learned about the vow of Robert Saticum, a “faithless elector” in Washington State who just can’t bring themselves to honor the will of the state’s voters, who happened to choose Clinton by a wide margin. If he follows through on his intention to vote for someone else – and there is no law that can stop him – his self-indulgence would merit a footnote in the history books, along with the Washington State elector who spurned Gerald Ford to give Ronald Reagan an electoral vote in 1976. But in a razor-thin election, Saticum actually wanted to force the election into the House of Representatives, sealing a victory for Trump. “I hope it comes down to a swing vote and it’s me,” he crowed. “Maybe it’ll wake this country up.” A fitting bit, perhaps, for the blooper reel of this reality show election, but it’s no way to run a democracy.
Ending the Electoral College would seem to require a constitutional amendment, which is an uphill challenge to say the least. Small rural states with outsize voting strength in the current system, and battleground states used to being courted, would be less likely to ratify it. But there is a credible reform option on the table that bypasses this obstacle: the National Popular Vote reform plan proposed by John Koza. Under this proposal, state legislatures would agree through an interstate compact to award their electoral votes to candidate who receives the most popular votes in the 50 states plus the District of Columbia. Already, 11 states possessing 165 electoral votes have signed on. Once the compact expands to include other jurisdictions with 270 or more electoral votes, the plan guarantees that the winner of the national popular vote would become president.
The National Popular Vote plan is a promising first step, but it doesn’t go far enough. It fails to provide for the contingency of multiple parties which could reduce the winning candidate’s plurality of the vote to an unacceptably low level. It also leaves in place the Constitution’s least democratic feature: the provision that empowers the House of Representatives to choose the president, with each state casting one vote, in the event no candidate wins 270 electoral votes. But enactment of the compact, making the national popular vote a fait accompli, could reduce resistance to a better tailored and more enduring reform in the form of a constitutional amendment.
Redistricting. All through this intensely fought campaign, the presidency and control of the Senate hung in the balance. But thanks to the way political districts were redrawn after the 2010 census, a process controlled in most states by Republicans, the fate of the House of Representatives generated little suspense. The aggregated national vote for House races appears to have been close: Republicans currently lead by a tally of 56.3 million versus 53.2 million, but that margin is likely to shrink when all votes from California and Washington are finally tallied. And yet, Republicans easily maintained a sizeable majority with only a handful of competitive races. This is ironic, to say the least. The Framers intended the House to be the institution of government most responsive to the public mood. But while political gerrymandering goes back to our nation’s beginnings, the founding generation could have never envisioned how modern technology allows politicians to create impregnable districts with ruthless precision. Just look at Pennsylvania: the state was fought to a near draw in the presidential election, but 13 of its 18 House seats went to Republicans thanks to the creative handiwork of a GOP-controlled legislature five years ago.
It doesn’t have to be this way. Democrats are gearing up to beat the Republicans at this game after the 2020 census, and maybe they’ll succeed. But progressives can set their sights on more enduring change by taking redistricting out of the hands of self-interested politicians and investing this power in the hands of an independent citizen commission. These commissions, like the one in California, have increased partisan competition and ensured that minority communities have fair representation.
Voting. American elections are in need of repair. One in four eligible citizens can’t vote because they aren’t registered. And those who do vote have to deal with long lines, outdated voting machines and – in many states – with impediments put in place specifically to make it harder for targeted populations to cast a ballot.
This was the first presidential election following the Supreme Court’s 2013 ruling in Shelby County v. Holder, which gutted a core provision of the Voting Rights Act. Where the Act once required states with a history of racial discrimination to obtain federal government preclearance to enact changes in voting laws and practices, the Court opened the door to a raft of discriminatory measures including photo ID laws and cutbacks to early voting. While advocates pushed back some of these measures in court, these voter suppression measures contributed to reduced minority turnout in many states.
Progressives should demand that Congress fix the Voting Rights Act to its former strength. They should also support Automatic Voter Registration, a transformative policy innovation crafted by the Brennan Center that would permanently add up to 50 million eligible voters to the rolls. AVR would save money, increase accuracy, curb the potential for fraud, and protect the integrity of our elections. Already, six states (Oregon, California, Vermont, West Virginia, Connecticut and Alaska) have enacted AVR measures and they’re now being implemented. Finally, progressives should insist on other measures that make voting easier, including expanded early voting. Reduced early voting opportunities in many key states surely dampened turnout.
Money in politics. Ever since the Supreme Court opened up the floodgates to massive, unlimited campaign spending in the Citizens United case, Americans of all political stripes have been worried about the growing power of large donors. The domination of elections by a handful of big donors is a threat to democracy and good governance. As long as politicians spend so much time chasing the big donors, a growing number of Americans – progressives and conservatives alike – will continue to believe that the system is rigged.
The 2016 election proved that campaigns with a big bankroll didn’t always succeed. The Clinton campaign raised and spent more than Trump, and Jeb Bush raised $155.8 million for his campaign and super PAC to little avail. At the same time, many closely fought Senate races turned out to be not so close after all. Is it a coincidence that the big money donors on the Republican side, turned off by Trump’s campaign, redoubled their donations to keep the Senate in Republican hands? A recent Brennan Center analysis found that this year, for what is probably the first time, supposedly “independent” spenders – free from contribution limits and very often concealing the identities of their donors – outspent the parties and candidates in ten key Senate races.
Progressives saw in the Bernie Sanders campaign a different way. While Hillary Clinton raised money the traditional way, through fundraising events that provided access to the candidate as a reward for campaign contributions, Sanders’ campaign was fueled with an impressive surge of small donor contributing averaging, as Sanders proudly boasted, $27. Clinton’s fundraising slog took her off the campaign trail for days at a time. Sanders, like Obama before him, could focus his energies on engaging his base.
What if government made it easier for campaigns to thrive on small donations raised through engagement with voters? The Brennan Center has proposed a federal public financing system for presidential and congressional elections that encourages small contributions from regular people. Under this plan, modeled on New York City’s successful system, small donations of up to $250 would be matched 5-1 by the government. In exchange, participating candidates would agree to reduce the maximum allowable contributions. This simple reform, which could be adapted to state elections too, could revolutionize the way campaigns raise money, making fundraising an integral part of civic engagement.
Another needed step is changing the law around money in politics to give reformers more latitude to regulate campaign finance – including resurgent spending by the biggest donors and the new phenomenon of unaccountable “dark money” – to preserve the integrity of our elections. Four Supreme Court justices have signaled their interest in doing just that. Now that the current Court vacancy will be filled by the next president, progress here will remain just out of reach for the time being.
The road forward. Progressives will always face obstacles in advancing their issues in a political system that elevates the voice of the few at the expense of the many – a system which perversely awards victories to the candidate who wins fewer votes and which makes the process of voting feel meaningless. It is time to focus on renewing and modernizing our democracy to make it responsive to the people and not just to special interests. The Brennan Center has advanced a Democracy Agenda calling for these changes and many more. I urge you to join us.