Throughout history, the political process has evolved from the specific vision of the Founders. It should be clear that there is no binding tradition of resting forever on ‘original intent’.
Uncodified norms have always played a powerful role in American political life, but whenever a norm is revealed to have less force than had been believed, our system has done an excellent job of formalizing those norms into the laws of our country. Take, for example, the Twenty-Second Amendment, which made the “two-term tradition” legally binding, and was passed three years after FDR’s election to a fourth consecutive term.
Therefore, after this year’s election, we should feel good about making a few simple fixes to improve Presidential elections in the future, particularly in the cases in which shattering our political norms proved to have no consequences.
Fix 1— We must institutionalize the practice of all presidential candidates disclosing—regardless of audits, entanglements, etc.—their complete tax returns for the past 20 years. Every major-party presidential nominee since Carter has released their tax returns, but Trump’s election has proven that norm to lack force, though it serves an important purpose.
Fix 2—All candidates must submit to Congressionally approved bi- partisan groups of independent physicians for examinations physically and mentally. Much depends on a President’s ability to perform the duties of the office for four years. Recall the passage of the Twenty-Fifth Amendment (which controls Presidential succession in the case of illness) in the wake of Woodrow Wilson’s stroke. We have yet to see consequences of Trump’s decision to use a sycophant as a physician, but he is not only the oldest president ever, but one who is either quite nearly obese or well over the line. Regardless of Trump’s physical fitness, the danger his poor health poses should force us to reevaluate our decision to leave the “doctor’s note” in the realm of tradition.
Fix 3—All candidates must agree to abide by the same rules of conflicts of interest, disclosure and prohibitions, as required for all employees of the executive branch. Also, where appropriate, they must agree to divest, if elected, all interests in businesses and properties regardless of possible conflicts and have their assets managed by blind trusts. Trump has again flouted this norm, apparently claiming that he cannot have a conflict of interest and arguing that transferring his holding to his children is comparable to selling his assets and putting the proceeds into a blind trust. However, yesterday’s decision to gut the Congressional Ethics Office gives me little confidence that this will come to pass under the current administration.
Fix 4—Current nepotism laws have never been tested in the way the Trump administration might test them, and so the current legal gray area is largely governed by informal norms. It would hardly be difficult to make it illegal for a president to appoint close family members to positions of authority and we should do so. Nothing shall, however, prohibit a President from seeking advice from any person at any time.
Fix 5—In the event a candidate for President wins a majority of the Electoral College, but loses the national popular vote by more than 500,000 votes, there shall be a national runoff vote within 30 days between the two leading candidates. The winner of the electoral votes in that redone election will be the next President, thus obviating any need to seek a Constitutional amendment with respect to the Electoral College which will still determine the election. In the last 100 years, there have only been two Popular Vote-Electoral College splits, and it is vital for an incoming president to recognize that he was not favored by even a plurality of Americans. Given that there is no formal way to deny such a president the powers of a president with a less dubious election, we must make it impossible for it to occur again if we want to bridge the ever-widening political divides in this country.
Fix 6—The determination of Congressional Districts must be revised to minimize partisan gerrymandering. This requirement can be imposed by Congress because those elections are for Federal office. In this digital age, it is possible to create algorithms which can dispassionately and apolitically draw district boundaries in such a way as to ensure that each state’s populations are distributed, randomly but fairly, into districts which reasonably represent the distribution of the overall population of the respective States. The present system in which the various state parties draw lines to bunch population into tortured geographic districts is conducive to divisive politics instead of collaborative politics and creates counterproductive tensions in lawmaking.
Fix 7—Limit all formal political activities and fund raising until January First of a presidential election year. It should be a president’s job to govern, not to campaign, and the seemingly endless nature of a modern presidential campaign can lead to political fatigue and cause the populace to disengage from the political process, which is dangerous in a democracy.
These seven fixes need a reasonable amount of public political will and could almost certainly be achieved by bipartisan legislative action in relatively short order.
All citizens of all political parties will come out winners regardless of party membership.
And the underlying cornerstone of democracy—the public will—can achieve a renewed breath of life.