Taking on American Political Dysfunction without Changing the Constitution Law professor Rick Hasen thinks the only change radical enough to reform our government is a switch to a parliamentary system. But he doesn't consider fair voting.

by Devin McCarthy, Rob Richie // Published April 23, 2013


In his draft paper on Political Dysfunction and Constitutional Change, University of California-Irvine professor Rick Hasen makes a powerful case for the need for out-of-the-box thinking on American political reform. But he also makes a curious omission. Fair voting alternatives to winner-take-all elections do not receive a single mention in the paper, even though they were promoted in one of Hasen's major sources, Thomas Mann and Norman Ornstein's 2012 book It's Even Worse Than It Looks.

Hasen has a well-deserved reputation as one of our most thoughtful law professors, and his paper has generated considerable reaction in the political blogosphere. It posits three basic claims: 1) The government of the United States is currently dysfunctional, 2) that dysfunction could be solved by switching to a parliamentary system of governance - that is, government where the executive is chosen by the legislature, and 3) if the problem of dysfunction does not eventually solve itself, none of the commonly proposed subconstitutional rule changes will end dysfunction without switching to a parliamentary system.

Hasen's first claim is difficult to dispute. Between the never-ending budget crisis and a consistent inability to enact policies that most Americans favor, the U.S. government - in particular, Congress - is simply not doing its job effectively. The cause, as Hasen correctly points out, is increasing polarization within Congress, which is at its highest point since the end of Reconstruction. That polarization in turn is grounded in most voters' increasingly rigid party preference - a trend that FairVote has highlighted for more than 15 years.

We're not going to argue one way or another on Hasen's second claim about a parliamentary system. While it's true that switching to a system in which the majority party could pass any law it wanted would increase legislative output and decrease gridlock, doing so would be a drastic step that would require a complete restructuring of American politics. No reform option should be dismissed just because it is unfamiliar, but as Hasen himself writes, "we should not lightly change the fundamental rules of our governance."

We do take issue with Hasen's third contention that, absent adoption of a parliamentary system or government dysfunction correcting itself with time, no subconstitutional changes proposed by others are likely end such dysfunction. On the one hand, Hasen convincingly explains the limitations of some subconstitutional rule changes, most notably filibuster reform, independent redistricting and the adoption of open primaries. Fairvote has also pointed out the limitations of open primaries and independent redistricting as reform solutions, although the latter certainly has merit if applied consistently and with attention to fair representation. As for the filibuster, we have drawn attention to its problematic nature over the years, dating back to when the debate centered on Republicans complaining about Senate Democrats blocking the majority. Even so, while filibuster reform would allow more bills to make it through the Senate, it would do nothing to address the underlying causes of polarization.

After dismissing those three reforms, however, Hasen jumps straight to the conclusion that "tinkering with the internal rules of Congress or the external rules of election are likely to make only modest inroads at best in the polarization and dysfunction currently affecting our national politics." That's true, if you're only tinkering. But we're not limited to merely tinkering with our election rules; in fact, the electoral reforms mentioned by Hasen are just the tip of the iceberg of possible changes that could be made to American elections without requiring a constitutional amendment.

The biggest oversight is the potential use of candidate-based methods of proportional representation proven in American elections, which FairVote calls "fair voting." Fair voting is based on the simple and intuitive principle that legislatures should more accurately reflect the political views of all Americans. Voters would still vote for specific candidates under fair voting, but those votes would give them legislators who represent them philosophically as well as geographically. Our preferred fair voting method, choice voting (also known as the "single transferable vote"), encourages candidates to campaign for support outside of their base because it allows voters to rank candidates in order of preference.

We've drawn fair voting plans for every state, showing how combining existing districts into larger districts with between three and five members would have a dramatic impact on voter choice and fair representation. A fair voting plan could be implemented nationwide through federal statute, and would be fully constitutional. Fair voting methods have already been used effectively in important American elections, including for more than a century in elections to the Illinois House of Representatives and for local elections in major cities like Cincinnati, Cleveland, Sacramento and New York. Proponents of fair voting for congressional elections include the Democrats' third-ranking House Member James Clyburn, along with intellectual heavyweights like Mann and Ornstein (who also advocate for the consideration of another FairVote proposal, ranked choice voting in single winner office elections).

Unlike the "tinkering reforms" Hasen dismisses, adopting fair voting would have real and powerful effects on American governance. No longer would only two party poles be represented in Congress. Instead, viewpoints from varying degrees of the right, center, and left of the American political spectrum would all have a voice in the legislature. With a stronger political center and nearly all Members of Congress sharing constituents with Members from another party due to the use of multi-member districts elected under non-winner-take-all rules, Members would be much more likely to cooperate across the aisle. Because fair voting would make every district competitive in every general election, the phenomenon of legislators being threatened only by politically extreme primary challengers would disappear.

Hasen is clearly willing to look abroad for reforms, suggesting the British Westminster system as one possible model for an American parliament, but he avoids the fact that most of the world's robust democracies have rejected American-style winner-take-all voting rules.

It is possible that Hasen omitted fair voting just because he doesn't think it's a realistic or achievable reform. But for someone considering rewriting large swaths of the U.S. Constitution, that's not a very persuasive reason (not that it's a good argument for anyone to ignore fair voting, as FairVote pointed out last month in challenging another election law luminary, Nathaniel Persily, to acknowledge the potential of fair voting).

The paper concludes on a note of caution, as Hasen writes that "it is worth waiting to see if the political system self-corrects" before shifting to a parliamentary system. That could be a very long wait, with a lot of ineffective governance and harm done to the American people in the process.

There's no need to wait to adopt fair voting. The negative effects of winner-take-all congressional elections have never been clearer and fair voting is completely consistent with American political traditions. Even if the current era of partisan gridlock does prove to be a transitory phase, fair voting would still have numerous other benefits for American elections. For one, if implemented in tandem with independent redistricting commissions, fair voting would effectively remove all partisan bias in House races - a bias that currently leaves Democrats needing more than 56 percent of the vote to earn a one-seat majority in 2014.

With fair voting, Republicans could win seats outside their strongholds, helping to broaden the appeal of the party in a way that would make them more competitive in presidential elections. If Jonathan Bernstein is right in his response to Hasen that a broken Republican Party that is the real source of government dysfunction, fair voting would give Republicans the right incentives to get their party back on track.

Furthermore, fair voting would be an ideal solution to controversies over how best to elect racial minorities, as explained by FairVote staff in a recent University of Richmond Law Review article and a blog post on Congressional elections in the South. It would very likely boost representation of women far more than millions of more dollars spent on funding individual women candidates, as highlighted by FairVote's Representation 2020 project. It would give every voter a meaningful choice, far more than any redistricting reform proposal that keeps winner-take-all elections in place.

To be sure, we still may well get presidents of one party and congressional leaders of another. No system can guarantee effective governance, but fair voting would give us a more representative legislature with individual members having more freedom and opportunity to work across the aisle to get things done. We would need to pay attention to details like handling constituent service demands, but the longstanding use of multi-seat legislative districts in many states shows that can be done well.

Hasen is right to look beyond the status quo of Washington politics toward real reform options. But he's wrong to ignore lessons from our own history and the powerful logic that the single-member district is a poor way to elect an increasingly diverse population. Let's evaluate all the options for making the current Constitution work - not just the timid ones.