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Wednesday, October 05, 2016

Presidential and congressional elections; Amar's "sunrise" idea

In my first post, I discussed the importance of reforming the process for presidential elections, specifically advocating the need for a runoff mechanism (like Instant Runoff Voting, but it could be a separate runoff election like many other democratic countries, including France, use for their presidential elections).  I used the full scope of U.S. history to make the point that, ever since the Electoral College failed to function in the way intended even after the Twelfth Amendment fix, the existing process for presidential election fails to handle adequately the existence of third (or more) candidates--and that it is not just a "Ralph Nader" problem limited to just a few aberrations.

In this post, I want to raise a question that was asked on Friday at the Fordham Law Review symposium where I presented my paper on the need for presidential runoffs.  The question, an extremely important one, was essentially (and I'm paraphrasing), "What difference does it make to fix presidential elections, if Congress is paralyzed by hyper-polarization and gridlock, especially when one party controls the Senate and another party controls the House?"  

I'm strongly of the view that the purpose of elections is for the citizenry to choose a government.  But if the government is incapable of actually governing, then elections have failed in their essential purpose.  I think the capacity, or incapacity, of Congress to legislate responsibly with respect to the budget and other pressing national issues (tax reform, etc.) suggest that our political system is at an unprecedented level of dysfunction.  If reforming presidential elections won't fix the problem, what will? Reforming congressional elections? Something else?  I hope to have more to say on this topic.  Meanwhile, I note that it is impossible to place the blame solely on gerrymandering, since the Senate is not gerrymandered.  Or on Citizens United, given the existence of Buckely (among other reasons).  The challenge of reform is a multi-faceted one.

Here, I want to close this post with one idea concerning the process of reform.  It's Akhil Amar's idea, which he mentions at the end of his book America's Unwritten Constitution, and which I explore in a subsequent essay, The Posterity Project.  The idea, very simply, is to use a "sunrise" mechanism when adopting any significant structural reform.  The opposite of a "sunset" mechanism, which terminates a piece of enacted law after a specified period of time, a "sunrise" mechanism would delay the time at which a piece of reform takes effect for a specified period.  The reason for a "sunrise" mechanism is to induce present-day politicians to set aside short to self-interest (including the short-term self-interest of their constituents and co-partisans) and adopt reforms in the long-term best interest of the polity.  It's the closest we humans can actually come to putting ourselves behind a Rawlsian veil-of-ignorance, as we might not know what our own narrow self-interest will be at some point in time down the road. 

Obviously, there is an inherent trade-off in setting the "sunrise" date: the further in the future it is, the more Rawlsian the deliberation, but the longer we have to wait before the reform actually takes effect.  The shorter the delay of the "sunrise" mechanism, conversely, the more likely self-interest calculations will taint the deliberations over what reform to adopt.   However you think the "sunrise" mechanism should be specified, I urge you to consider the advantage of a nonpartisan structural reform commission co-chaired by ex-presidents Barack Obama (after he leaves office) and George W. Bush.  The purpose of the reform commission would be to consider the set of structural reforms--involving presidential and congressional elections, and other topics--that are necessary to rectify the problem of paralyzed and dysfunctional government, which we seem to have right now.  Any reforms recommended by this commission would not be adopted until after the specified "sunrise" period of delay was over.

Posted by Edward Foley on October 5, 2016 at 02:26 PM | Permalink


Sunrise is nothing more than delayed effective dates which are regularly used in both constitutional amendments and statutory enactments. *Yawn.* Another academic discovers the obvious.

Posted by: Guest | Oct 10, 2016 4:19:23 PM

Thanks, Adam. To clarify, the "sunrise" idea is indeed to put the current consideration of what procedure to adopt under a cloud of uncertainty. Should I support a constitutional amendment to replace the Electoral College with something like National Popular Vote? If I'm a partisan lawmaker, I'll decide that question based on my party's current best interests; does the Electoral College help or hurt my party? But if the change from the Electoral College to National Popular Vote involves a lengthy "sunrise" requirement--it won't take effect for 50 years, let's say--then I might not know what my party's best interest will be when the change takes effect. In fact, for all I know, my party will be very different in 50 years from what it is now. As an individual, I'm likely to be dead. So it's really my grandchildren whose benefit I might care about. That's why I call my version of this "The Posterity Project" The question is what short of electoral system do we want to bequeath to our grandchildren. It won't affect us, but it will be our legacy to them.

As for bipartisanship, I can't see a way for us today to agree to reforms that would take effect 50 years from now unless we can get bipartisan agreement on what those reforms should be. The hope is that using the "sunrise" method, we could obtain this bipartisan agreement that is otherwise unattainable.

Anyway, that's the idea. If it's not a good method for achieving electoral reform, what's a better one?

Posted by: Edward Foley | Oct 6, 2016 5:10:02 PM

I haven't read Amar's article or the essay, but I really question the premise here. It seems to me that we have plenty of "sunrise" legislation already - which is part of the problem.

By anyone's reckoning, public pensions are in deep trouble. Sometimes, they had a little bad luck along the way, but generally they reflect the deferral of pain now in exchange for political support or labor peace today. Why would we suppose that extending this mechanism more broadly is going to tend generally to the public good?

I'm also at a loss to see the value of yet another bi-partisan reform commission - whose recommendations, I hope, would still need to be approved by currently elected officials. (Let's put aside the fact that one-half of the country could not care less what BHO has to recommend, and 2/3 are similarly uninterested in GWB's suggestions.) Let's take Voter ID as an example. While I think it true that the support/opposition of current officials to an ID requirement reflects to some degree their assessments of how the requirements would benefit/harm their current interests, they aren't going to feel any less strongly just because it will be delayed by ten years. I'm strongly for Voter ID. I will feel the same way ten years from now, and I credit those who disagree with me that they will be just as concerned about potential disenfranchisement ten years from now. Who is this process supposed to fool, exactly?

Ultimately, I wonder this suggestion misconceives how such structures actually work. Entities such as BRAC "work" to the extent that they shroud decision-making in a fog of uncertainty and unaccountability. They don't merely provide time for men's "better angels" to gain the upper hand in negotiation with the present. They obscure what is actually to be done as policy, by pre-commitment to a process that cannot be (as) easily influenced. This is not progress, if one has concern for democratically accountability as both an ideological imperative, as well as a practical one.

Posted by: Adam | Oct 6, 2016 11:38:01 AM

Thanks, Marty. Your point is a crucial one, and I tried to phrase my proposal (and supporting argument) in a way sensitive to it. I think a well-functioning process of government should be neutral to policy differences concerning higher or lower taxes, more or less government spending, etc. What seems particularly dysfunctional about our current situation is that brinksmanship with regard to the budget--shutting down the government, defaulting on the debt, etc.--are "inefficient" (to say the least) ways to handle negotiations over policy differences concerning the budget, taxes, etc. Likewise, government-by-autopilot, where we have across-the-board spending cuts because we can't negotiate targeted cuts seems a suboptimal approach. Similarly, both the right and the left think we need serious tax reform, but we are paralyzed in our ability to negotiate a chance. Thus, our problem seems more than the fact that the two parties have an asymmetrical view of how much government involvement they want in society (i.e., how "big" the government should be).

Thus, my proposal for a bipartisan commission that we adopt process reforms that would "sunrise" at an appropriate time horizon is also intended to be neutral on the policy question of how "big" government should be. It's just a method for achieving procedural fixes that would permit dealing more efficiently with the fact that we have genuine policy differences that needed to be negotiated or otherwise resolved in all of our collective best interests.

Posted by: Edward Foley | Oct 6, 2016 9:15:22 AM

Great idea, Ned, but this and similar recommendations depend upon the (likely mistaken) premise that everyone agrees that Congress ought to legislate "with respect to the budget and other pressing national issues." The gridlock is not an accident, or something that everyone bemoans. We happen to be living in a time when (most of) one of the two major parties sees gridlock as a virtue, not a bug, because they believe that the nation will be better served if Washington does not try to address "pressing national issues"--at least, not when there's a Democratic President setting the agenda. Of course, I strongly disagree with this perspective. But we shouldn't kid ourselves that any bipartisan commissions might actually solve the problems.

Posted by: Marty Lederman | Oct 6, 2016 8:06:59 AM

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