What would it take to reinvent American politics and create a new government model? In this episode, Dr. Gary Deel talks to APU political science professor Dr. Rob Mellen about the prospect of government reformation and what’s involved with holding a constitutional convention to institute change. Learn about the dangers of a constitutional convention that essentially has no rules, and understand the true fragility of America’s democracy as seen after the January 6 insurrection on the Capitol. Also learn how direct democracy can take place at the local level and why it’s so important for citizens to get involved in their local government to bring about true and impactful change to their communities.
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Dr. Gary Deel: Welcome to the podcast, Intellectible. I’m your host, Dr. Gary Deel. Today we’re talking about the topic of possibilities for American government reformation. My guest today is Dr. Rob Mellen. Rob is a professor of political science who specializes in the study of American political institutions. He’s taught for APUS since 2010, and previously taught at Mississippi State University and Washington State University, where he earned his doctorate.
Rob is a self-described political junkie, who regularly blogs about the intersection of history and politics in addition to his teaching responsibilities. When he’s not teaching or writing, he can usually be found on the golf course. In full disclosure to our listeners, this is Rob’s second visit to the Intellectible podcast. We spoke previously on the Electoral College back in the fall of 2020. Rob, I want to welcome you back once again to Intellectible, and thank you for being our guest again today.
Dr. Rob Mellen: You’re welcome. It’s my pleasure, Gary, and it’s good to be back with you.
Dr. Gary Deel: Likewise, thank you so much. I certainly remember the conversation in the fall being enlightening and humbling in the sense that I thought I had a pretty good idea of how the Electoral College works, but the more we talked about it, the more I realized it’s far more complicated than even I had appreciated prior to our initial conversation. So, I found that one to be incredibly fruitful, and I’m sure this one will be as well.
We had talked over email, and we’re here today to talk a little bit about the possibilities of American government reformation, and if at some point in the future the American people or the states, as may be discussed today, were to decide that major changes were needed to our institutions, or even the Constitution itself aside from the enumerated amendments that have already occurred. How such major overhauls of a system like the American governmental system might occur? So I want to open that book and get to it.
But before we do, I’m compelled to ask you about something that I found really peculiar in the news recently. By recently, I want to say, maybe within the last two to three months, we were recording this in mid May of 2021, and there were some Congressional procedural challenges taking place in the Senate and in the House.
I remember if my memory is accurate, this was around some major legislation that was being pushed through under the newly inaugurated Biden administration around things like whether or not you can lump in, for example, if memory serves, I think this was the hinge point, was, can you tie an increase to the minimum wage along with a bunch of other legislation that may not have anything to do with worker terms and the Fair Labor Standards Act and the conditions of employment in the U.S?
There was an individual in official capacity, as I now understand it to be in American government called the parliamentarian who had a role to play in deciding whether procedurally that was allowed to happen.
For some reason, this just escaped my radar up to this point in following American discourse, and I really wasn’t even clear on the fact that we had a parliamentarian. When I hear the word parliament, I think of England, frankly, and other countries around the world.
But can you tell us a little bit about what a parliamentarian is insofar as it involves the American Congress and what role it serves in the process?
Dr. Rob Mellen: Absolutely. There’s a couple of aspects to what you’re talking about here. First, you are talking about the idea of lumping some legislation together. And you’re correct. The one you were mentioning that the parliamentarian ruled on was the idea of tying an increase in the minimum wage to the COVID relief package that the Biden administration had proposed, the House had passed and was going to the Senate.
Under normal circumstances, they could indeed tie those things together. You can have non-germane amendments to legislation that’s coming through the Senate, gets debated on through the whole process of threatening filibusters and all of that, and the amendment process, that can take days and days and days to try and get anything done. The issue with this particular piece of legislation had to do with the fact that the Democrats in the Senate were using a process known as reconciliation or budget reconciliation.
When you’re using budget reconciliation, all of the provisions in the bill have to be tied to the main purpose of that bill. So you can’t just go outside and say, “Well, we want to accomplish X, Y and Z as well as providing relief for the COVID-19 crisis to the states and so on.”
The second aspect of that is, who the heck is this parliamentarian? That’s a good question, because normally, we don’t hear about this person. Both chambers actually have somebody who does this. In the House, it’s the clerk of the House of Representatives, it’ll take care of a lot of that stuff.
What their essential role is, is making sure that whatever gets proposed by Senators and the process that they follow, complies with Robert’s Rules of Order. Essentially, there are parliamentary procedures, even in our Senate. Even though it’s not a parliament, it is a legislative body, but it has rules of order that it must follow. So there are procedures that even many of the members are unaware of because they’re obscure, and they rarely come up.
So whenever something is proposed, the parliamentarian takes a look at it and says, “Okay, this complies with the procedural rules of the Senate, or it does not comply.” If it doesn’t comply, they can either revise and try to find another way to accomplish the goal, or it just gets stripped out of the bill entirely.
Dr. Gary Deel: Is the parliamentarian someone who is an elected official, or are they appointed by the collective members of the respective congressional bodies?
Dr. Rob Mellen: The parliamentarian I believe, well, it’s not an elected position, it’s an appointed official. So they’re hired directly by the Senate, and they can be fired as well by the Senate.
Dr. Gary Deel: So they would serve at the pleasure of the majority of this, as the Senate would vote on? In other words, if they wanted to replace a parliamentarian, I assume they would cast a vote?
Dr. Rob Mellen: Typically, that is true.
Dr. Gary Deel: Okay. Yeah, because it would occur to me that that person, if I understand the role and the scope of their responsibilities, as you’ve described them, it would seem that they wield some serious leverage. Because, as I understood it to be in the case of what occurred earlier this year, with respect to the minimum wage argument that seemed to be the war that was being waged over whether or not that was fair play to include it in the legislation that was being discussed under, as you’ve explained, the budget reconciliation process. They seemed to be an arbiter of sorts.
In that they had construed this to be fair game instead of not fair game as they ultimately, it seems did. They ruled that you could not, in other words, lump a minimum wage inclusion into this particular process. That could have paved the way for potentially clearance or a path to victory on a $15 minimum wage for the American population. I mean, that’s tipping of the scales, thumb on the scale, so to speak, seems to be. Am I construing this correctly, that that person could have considerable influence over what actually happens?
Dr. Rob Mellen: Well, they could have that kind of influence if the Senate were to allow them to. The ultimate problem here is that, like you mentioned before, Senate could fire the parliamentarian if that individual stepped out of line. They could also ignore the parliamentarian, and the only recourse would be the minority party screaming and squawking and then making a lot of noise about it.
But, ultimately, if both chambers passed the same bill, and it went to the president, the president signed it, it would become law, and then you would be opening up the door for legal challenges at the Supreme Court level, and so on, trying to determine whether or not this action is legit or not.
Generally, if the parliamentarian makes a ruling, both parties abide by it, because parliamentarian is supposedly nonpartisan, it is a position that is not dependent on whether Democrats or Republicans hold the majority, doesn’t depend on the power breakdown or anything, whether one party has a super majority or not.
If obviously, if they had a supermajority, they’d just pass a separate bill, filibuster-proof, that’s why we get into the discussion of eliminating the filibuster, because obviously, it can be used to stop major legislation like $15 an hour minimum wage increase. Democrats currently have 50 seats plus the vice president of the United States. So, everything is going to be contentious, and the only way around that is to use reconciliation.
There are specific rules that apply to that reconciliation process. How often it can be used, and what it can deal with. And most of the time it has to be revenue neutral, but there are some exceptions. So, in the case that you’re actually increasing the costs of the federal government, you have to find a way to pay for those things. That gets a little more complicated.
Dr. Gary Deel: I’m glad you brought that up, because I wanted to ask about whether or not this has any relevance to, as you mentioned, the filibuster rule and what has been discussed, at least in recent months about the “nuclear option” which is essentially the majority’s potential move to get rid of the filibuster, which would just create a simple majority rule in the Senate.
But am I understanding correctly that if you go through the budget reconciliation process, it sounds like, if I’m getting it, the entire purpose of going through that process would be that it is not subject to the filibuster rule. That it would operate on a simple majority as opposed to a filibuster, and that’s why you would, if you are like in the position that the Democrats are in currently with a slim majority, but not a super majority you’d aim for that, because you can get things passed that you would not otherwise be able to survive the filibuster rule?
Dr. Rob Mellen: That’s exactly correct. That is why they do that, that’s why reconciliation is used. It also does, as we mentioned before, takes away the ability to add in non-germane amendments and riders to bills that don’t deal with the main substance of the bill itself. So, it places a lot of restrictions upon what kind of content can go in there.
The fact that it can’t be filibustered really helps. Because otherwise, those $1,400 large checks that everybody got a couple of months ago, was it back in early March, I think, from the Biden administration. Those would never have been sent out because they had to use that reconciliation process to get that even though many Republicans favored those checks after President Trump proposed them last year when he said $600 wasn’t enough.
But the fact that they were no longer in power, they instantly have to oppose it, because they can’t give the other party credit for accomplishing anything. That’s the problem that we face right now with our governmental system.
Dr. Gary Deel: Yeah, such is the devolution of cooperative politics in America these days. But that’s interesting, because it lends itself to a theory that, and I realize there could be political costs to this that would make it prohibitive. But you could, in theory, get very creative with something that’s, and I’m using big, big air quotes here to say budget reconciliation, what does that constitute, and what are we going to construe that to mean or not mean?
Then I guess the further step would be if you have a parliamentarian and to be fair, I’m not doing justice to the individual that holds that position right now, because I don’t actually know their name. They were obviously instrumental in denying the $15 minimum wage inclusion in this last round. But would there be anything procedurally to stop the simple majority party, in this case, the Democrats, as you said earlier, they could fire that individual if they’re not happy with them?
Could the Democrats not, if they want it, and I’m not suggesting that they should, but could they not just fire that individual and appoint a loyalist by the simple majority vote of appointment to the parliamentarian seat that would just rubber stamp anything they want as budget reconciliation. Or would that create some other obstacle for them in terms of getting their goals for legislation passed?
Dr. Rob Mellen: It can create a lot of obstacles that they may not want to face. Like I said before, the parliamentarian, the current parliamentarian is Elizabeth MacDonough, just so that we have her name out there. She’s held the office since 2012. She was appointed by the majority leader Harry Reid, back in 2012.
Again, this individual is supposed to be non-partisan, and their primary role is simply to make sure that the Senators are aware of what the rules of the United States Senate are when they proceed with legislation.
So, it’s very rare that the parliamentarian gets involved in a public way where we actually hear about it. The presiding officer in the Senate has actually the power to overrule the parliamentarian, but that hasn’t happened since Nelson Rockefeller in 1975. So, it’s a long, long time.
But the main thing is, as we’ve talked about, the parliamentarian has to decide what the Senate can and cannot do when they’re in the reconciliation process. That’s usually where this kind of thing is going to come up.
Typically, historically, the reconciliation process is used once a year, if at all. I tried to think back to remember when the last time, it probably was used by Republicans for the 2017 Tax Cuts and Jobs Act, I’m guessing because there would have been a lot of Democratic opposition to that, and they had 52, 53 seats at the time. But I know a couple of big times it has been used by the Democrats was the passage of the Affordable Care Act back in 2010. That went through the reconciliation process, or part of it did.
I think it was the changes to the Act. The initial Act was passed, and then a week later, they made some amendments to it, and they used the reconciliation process for the amendments to it to prevent the Republicans from filibustering it and shutting it down completely.
Dr. Gary Deel: So it sounds like the tool that is used for the party in power to pick the hill that they need most to die on. That’s their shield of armor that gets it through the political process. But they only get one time around in theory per year or per term, depending on how often they choose to use it.
I wonder if it’s just for fear that they are opening Pandora’s box, like the nuclear option, you have to be careful if you’re the party in power that wants to destroy the filibuster rule, then eventually, when political powers change, you’re going to have to live with the consequences of the other party basically forcing down your throat all the things that you wouldn’t like to see happen under filibuster rule.
Dr. Rob Mellen: Yeah, exactly. You may recall back in the early 2000s, there was a lot of talk about this nuclear option, so called nuclear option, getting rid of the filibuster in its entirety in the U.S. Senate. They came very close at times because both parties were using the filibuster in ways that had never been used before.
A lot of this stems from the ’90s and Newt Gingrich’s control of the House of Representatives, the speaker. He ramped up the slash and burn politics, everything was fair game, and we’re just going to stop everything that we disagree with. And we’ve seen that continued with Mitch McConnell in 2009, announcing that the entire goal of the Republican Senate was to make sure Barack Obama was a one-term president. They’ve said the same thing now about Joe Biden, they’re going to make sure that he’s a one-term president.
That means they’re going to filibuster everything that they possibly can, or they will threaten to filibuster everything they can. That’s an interesting thing we should get into and talk about the use of the filibuster and how the rules have been changed to make the opportunity cost for the use of the filibuster less expensive for Senators. Let’s put it that way.
Dr. Gary Deel: Yeah. Well, I wanted to ask you, I mean, as a scholar of American history and politics, do you have an opinion on the filibuster and whether or not it needs to go, in the interest of either balancing the scales of power or just efficiency with respect to congressional lawmaking? What are your thoughts?
Dr. Rob Mellen: Well, my thoughts are mixed on the filibuster. As with most scholars, I would say, a lot depends upon who you’ve got in power and how they’re utilizing the tools. The filibuster is simply a tool, and it’s a tool that can be used appropriately, or it’s a tool that can be misused.
If the tool is used to further debate on a very important issue that’s affecting much of America in ways that one party or the other or certain Senators find either offensive or harmful, or to bring to light issues that are being hurried through the Senate. Then eventually we’re going to get to debate on the merits, and then we’re going to go ahead and either pass or reject the bill, I think the filibuster is fine in those times.
However, since the 1990s, the filibuster has been a partisan tool. It’s simply been a way to obstruct progress in the Senate and legislation, and even nominations at one point in time. I mean, that’s what started the talk of the nuclear option back in the 2000s was, Democrats were using to filibuster every appointment that George W. Bush made to courts, appointments to offices, anywhere. Essentially, they were trying to stop him from filling out open positions in the government.
Then Republicans turned around and did the same thing with Barack Obama’s appointments, eventually leading to 2013, that fatal day when Harry Reid decided, “Okay, we’re going to get rid of the filibuster on lower level appointments. So, district court judges, circuit court judges, and cabinet appointees can’t be filibustered anymore.” That became the day that the Senate changed forever, and the only thing they retained was the ability to filibuster Supreme Court nominations.
Well, in 2020 or 2019, we saw that go away. When Republicans regained control the Senate from the Democrats a few years back, it was 2015 when they got it back, and they got a chance, they removed that filibuster option on the Supreme Court. And that’s what led to Amy Coney Barrett being confirmed in record time, I think 29 days or something from the death of Ruth Bader Ginsburg to the appointment and confirmation of Amy Coney Barrett.
In the old days, with the ability to filibuster, that appointment would never have made it through. Democrats would have just kept filibustering right up to the election and then right up until the swearing in of President Biden.
Dr. Gary Deel: I didn’t realize that the scope of applicability for the filibuster had been eroded in that way. I guess I missed those headlines, but that’s interesting. It seems like it is slowly stepping into its own coffin, piece by piece, context by context.
As you described earlier, with respect to the parliamentarian, I believe you said Elizabeth MacDonough, who occupied the seat since 2012, which would be nine years now. I was shocked to hear that because it seems almost every other appointment capacity in the government anywhere has been largely politicized.
I mean, you mentioned the president’s cabinet. Obviously, when a new administration comes in, particularly an administration that is of the opposite political party, all of the secretaries are gutted, all of the major heads of departments are gutted and replaced with the appointees of the incoming president. And it seems like that’s par for the course, in every capacity.
But for this individual, as you mentioned, appointed by Harry Reid, who was not well liked by the right, obviously. And yet there was no movement during the 2013 to 2020, Republican control of the Senate, and attempt to replace her just for the sake of Republican loyalty. Or either that’s unique in the history of the parliamentarian role, and Elizabeth MacDonough has just been a stunningly nonpartisan individual that’s well liked on both sides of the aisle, or that’s one of the last bastions of nonpartisan, we don’t play politics with this particular referee role left in government institutions.
Dr. Rob Mellen: Yeah, I’d say the latter is more accurate in that it is one of those last vestiges of non partisanship. You could look at the CBO, the Congressional Budget Office, they’re also supposed to be a nonpartisan body that evaluates legislation that Congress puts out, or is thinking about, so they can provide valid information to both sides, regardless of party, about the economic impacts or the fiscal impacts of any legislation that Congress is considering passing.
It’s not unusual for the parliamentarian to go through multiple changes of power, although that really started in 1994, where we started flip flopping with power in the various bodies, more or less. Elizabeth MacDonough’s predecessor, Alan Freeman served from 2001 to 2012. So he was there during both of the Bush administrations under Democratic and Republican control, as well as the first four years of the Obama administration. So, prior to that, we’ve had others, the longest serving one was 1935 to 1964. He was 29 years as the Senate’s parliamentarian. So, we go back in time.
But yeah, it is one of those things that is definitely the nonpartisan approach still remains there, and elsewhere within our government, it’s been completely lost. That’s one of the problems with the filibuster is the fact that if we go back in time, and we start looking at the Senate, we look at the use of the filibuster and so on. There have been more filibusters or threatened filibusters in the last 30 years than there were in the first 200 years of the republic.
Dr. Gary Deel: I wanted to ask on that point, with respect, I guess, to the filibuster, and to the parliamentarian role, are these components of our congressional framework that are traceable back to the very origins of the United States of America? Or as has been the case in the last 250 years, are these things that are more modern tools that have been added to the process by evolution of our government? I’m curious to know what the history is and how they’ve evolved.
Dr. Rob Mellen: Yeah, they’ve definitely, they’re more modern. They’re not something that we find in the Constitution that would talk about that. There’s a lot of things we wouldn’t find, there’s no committee system in the Constitution, all of that emerged as, necessity is the motherhood of invention. That’s what happens.
As Congress went from this rural body that met for part of a year to a permanent full-time job with members in Washington, D.C. most of the year and making visits home to their districts and so on. As it went from an amateur legislature, if you will, amateur hour to a professional legislature, the need for committees arose, the need for the division of labor, which was thought to be more efficient for the operation.
Could you imagine if the entire House were to meet as the committee of the whole on every single bill that they wanted to propose and markup? Wow. You can’t get 20 people to agree in the committee, how are you going to get 435 of them to agree on everything that they want to do? So a lot of this is evolution. It’s a way of streamlining the process.
So, if the Ways and Means Committee considers a tax bill, and they go through the process of marking it up, taking out the bad stuff, keeping in the stuff they want and it gets a majority vote and it passes through, then the members, at least from that majority party have confidence and say, “Okay, this is a bill that I probably want to support because the committee chair and the members of my party, they’re on that committee, have supported it.”
If it comes out with bipartisan support, great, then it’s going to get support from both sides of the aisle. That doesn’t happen as often as it should anymore, but it is one of the steps they need to take in both chambers, the House and the Senate, have created these committees and these bodies. That’s what they do.
Dr. Gary Deel: Now, that’s great. I mean, before we go to the break, I wanted to ask one more point on that because another controversial issue of debate about the way that our congressional institution is structured is the conversation around term limits and whether or not an appropriate call for those based on this again, the efficiencies of the system, do you think that that has originated with this move and the evolution of our legislature from, as you said, an amateur legislature to a professional politician legislature, where you have these lifelong career politicians that occupy various seats in Congress?
Dr. Rob Mellen: Well, I always give my students a very mixed non-committal answer on this question when they ask about term limits and the proposed term limits. My first answer is always, “We already have term limits. They’re called the ballot box.” You can go to the ballot box every two years for the House, every six years for the Senators, you can vote them out of office, replace them with whoever you want to, people have all the power there. If you don’t want career politicians, vote him out of office. Very simple.
Problem is, we don’t do that. Because we are partisan creatures, even if we say we’re not partisan, even if we say we don’t identify with a political party. Here in Florida, we have the option of registering Republican, Democrat, or no party, independent, whatever. If you register independent, you don’t get to vote in the primaries, but you can cast a vote for either party when it comes to the general election.
Well, most Americans identify with one of the two major parties, either Republican or Democrat, and they vote for a member of that party every time. When you have the primary system that allows the voters, the most active voters within that party to choose who the nominee of the party will be, and the incumbent enjoys all the advantages of holding office already—name recognition, fundraising, the ability to send out mail to constituents to say, “Hey, look what I did the last six years, vote for me.” They can go, they can’t actually say “vote for me,” but they can send out all the information about what they’ve done and keep their name in front of their constituents all this time.
That gives them a built-in advantage when it comes time for seeking reelection. So, they handily win their primaries unless they’ve gotten involved in a scandal or something like that. Then we return them to office and then we grumble about, “Man, I wish we had some fresh blood in the House and the Senate.” It’s a double-edged sword in that sense. I think the other part of the question you wanted to ask but you didn’t is, “Should we impose term limits through a Constitutional amendment?”
Yeah, that was done for more partisan reasons, obviously, although they exempted Harry Truman, so he could have kept running for life, had he been popular enough to stay in office. But we’ve tried at the state level, they’ve tried to impose term limits. I believe it was in Oklahoma that passed a term limit law, saying senators can only go for two years. Supreme Court struck that down and said that would require a constitutional amendment, that the state couldn’t do it on its own, because it was limiting the freedom of the voters to choose whoever they wanted to serve in office.
It’s a very complex question to ask about term limits. Some of it builds on the myth that’s out there that the founding fathers didn’t want there to be career politicians. That they wanted Joe Shmoe from some little backwater to go and serve in Congress for two years or four years and then go home. Exactly like James Madison did, exactly like John Adams did, exactly like George Washington did, like Thomas Jefferson did. You name any of the founding fathers, and what were they? They were career politicians. They got elected to the House, they got elected to the Senate, they got elected president. They served their entire lives in government.
So this idea that the founding fathers were all these agrarian farmers who wanted there to be no career politicians, there’s not as much truth in that as people tend to think. But that’s just telling one side of the story, of course.
Dr. Gary Deel: No, it really is, and as you mentioned earlier, the statistical advantages that incumbents have going into reelection, I think compels you to consider whether that makes sense. But I think you make some good points both for and against the ideas of term limits.
So, when we come back from the break, I want to ask you about these problems and what we could do if we wanted to try to just throw it all out and start over with a fresh draft of a new constitution or a new governmental system. If we wanted to start from ground zero and redesign the whole thing, how might we do that?
Rob, in the first half, we talked about a lot of the challenges procedurally and some of the things that don’t work perfectly and are not ideal with the current status quo with respect to our congressional system, the legislature, and just the government as a whole.
So, one of the things you and I had mused about over some emails. To be fair, I had written some articles several years ago about how America might modernize democracy, what that might look like, the pros and cons of things, for example, a pure democratic system, as opposed to a representative democracy, or what we call a republic today, where we vote people into office to vote on our behalf with respect to various pieces of legislation and ideas that are presented, and so on and so forth.
And obviously, we could spend several podcasts just talking about whether or not that makes sense. But I’m curious to know, because this is what you and I got into the real substance of. It occurred to me as I was writing those articles that the real challenge is even if we wanted to, Congress could, by majority, assuming they had the support, vote to revolutionize the entire system, they could get rid of Congress, and we could have a pure democratic system. The obvious problem with that among many, is that our congressional leaders would essentially be voting to fire themselves.
So we can think about how absurdly impossible that would be given the state of political affairs today. But you had talked to me about some other options, including a constitutional convention that I hadn’t really thought about. But can you tell us a little bit about that, and the different ways in which America could potentially go about reinventing itself if it wanted to, and I want to be clear to our listeners, we’re not necessarily advocating that we should burn the whole thing down and start over, figuratively, of course, or literally, for that matter.
But if we wanted to start with a fresh canvas, so to speak, and think about what a brand new model might look like, how would we go about doing that, or how could we?
Dr. Rob Mellen: Well, the most likely way that that would happen, would be through the states. The states have the power under Article Five of the Constitution to call for a new constitutional amendment, or a new constitutional convention. They can propose an amendment or they can propose a convention or adding in a constitutional amendment, either which can be done through a vote of two thirds of the states to propose that. So currently, we would need 34 states to do it, and then for any changes to be approved, it would require three quarters of the states or 38 states to finalize whatever changes are adopted or made.
The most dangerous part of all that is, how would the states control what ultimately comes out of it? Because the original constitutional convention, its purpose was to revise and strengthen the Articles of Confederation and Perpetual Union in 1787. What emerged from that was an entirely new government or new form of government.
So, the challenge of calling for a constitutional convention, if we were to get to the point where 34 states approved of that is, what would that constitutional convention actually do? Would they make minor changes tinkering around the edges of our democracy or our government, or would they overhaul the entire system?
It would be dependent on the delegates that they send forward to the states, sent to this convention, and what they ultimately return and send back to the states for ratification. So it could be anything that looks like what we’ve got now, to something that resembles a parliamentary system, or direct democracy. There are all kinds of options out there, and anything’s a possibility if we go down that road to having a constitutional convention.
Dr. Gary Deel: Now, you mentioned 32 as the closest we ever got. How long ago was that? Was that recently?
Dr. Rob Mellen: Yeah, pretty recently, in the 1970s and ’80s, we’ve come very close.
Dr. Gary Deel: Just out of curiosity, what were the states upset about? Was there a particular issue, or was it just.
Dr. Rob Mellen: Well, the balanced budget amendments always been a big one. They’ve wanted to force the federal government to balance its budget. That’s been the biggest most recent issue, the one that some people think is likely to bring about a constitutional convention is what we talked about last December, the Electoral College. As there are always discussions to abandon the Electoral College, to reform the Electoral College, to do something with it, because it makes it possible for a president to be elected without winning the popular vote.
And now that it’s happened twice in 20 years, 2000 with George W. Bush and then 2016 with Donald Trump, it’s made those calls become more urgent to look at reform.
Dr. Gary Deel: Do you think the pressure for that will be nullified though by the movement from several states? I’m not sure how many at this point, but those that have made a pact essentially to grant their electors, when they reach a critical mass, I know that there’s a threshold they have got to get to, but if they get there to grant their electors to the popular vote for the country, that would sort of—it seems to me that would circumvent the need for an amendment to the constitution that would grant that or do you not see that happening?
Dr. Rob Mellen: Well, as it stands right now, what we’ve got is this interstate compact, where you’ve got several state legislators, mostly Democratic states, in fact, I think they’re all Democratic-held states, that have agreed to award all their electors with the winner of the national popular vote.
That’s a safe bet for Democratic states, because Democrats have an inherent advantage in winning the popular vote right now, particularly with New York, California as being very large populations that vote heavily Democratic, as well as the Northeast. That’s beginning to be countered by Texas and Florida and some of the Southern states, although Arizona being a big shocker this last year. So we’ll see what happens down there, Georgia as well, I should say.
But I think that it has its own challenges as far as the implementation. Because it’s not clear whether or not states can obligate themselves to a convention that has been passed by a group of states and not directly amending the Constitution and so on. So, it would probably face its own legal challenges, but it could die out, it could just sit there on the books for now.
Dr. Gary Deel: Now, if the states were to succeed with a constitutional convention, do they have the discretion to limit the scope of their own change? In the sense that, as you described earlier, they can make a minor or subtle change to one specific issue, or they could throw the whole thing out and start over. But is that kind of a bell that can’t be unrung in the sense that if you do get the proper majority, even if it’s on the auspices of, we’re doing this for the purposes of like you said, for example, a balanced budget amendment or a term-limit amendment. Do you then open the floor potentially for anything and everything, or can you limit the scope yourself by the language of construction of the convention itself?
Dr. Rob Mellen: Well, it’s a free for all. The Constitution itself has no instructions about what such an amendment would look like or such a convention would look like. It has no guidelines whatsoever for the meeting, for the scope, for anything. So, essentially, a constitutional convention could write its own rules, they could determine once the delegates meet, “This is what we’re going to do, how we’re going to proceed, this is what we’re going to consider.” The states would have no authority over that whatsoever.
Some people fear that this would open the way for interest groups to manipulate the delegates into, let’s say, unsavory amendments to the Constitution that we might not appreciate. So, we might not get out of what we think we’re going to get out of it. That could be a serious problem. The convention could set its own agenda, you could call this convention saying, “Oh, we’re going to modify the Constitution to require the federal government to have a balanced budget, and we’re going to limit terms of Senators and House members and so on.”
And the convention itself says, “Well, yeah, that’s a great idea, but we’re not really going to think about that, we want to do something else.” So it would be up to the delegates in the convention itself.
Another thing they could do is, they could choose their own ratification process. So they could determine how to go about ratifying the Constitution, the new Constitution that they write, if we have a constitutional convention itself, the original required ratification by nine of the 13 states.
Remember, nine of the 13 colonies if you will, or states under the Articles of Confederation. Now the articles required ratification by every state or every participant to get anything done. So that was a change that they made. We could drop that down to 51% and say simple majority in a new convention, there are all kinds of things that could be done.
If the convention were to happen, there’s nobody, nobody who has any authority over that convention, no courts, no nothing, we can abolish the Supreme Court. Anything goes, that’s the danger of going through this process.
Dr. Gary Deel: Right. Yeah, it makes me think about and, frankly, worry about the stability of the society in which we live during that point. Because I would presume, while a constitutional convention is underway, the existing governmental system as it stands would continue to operate until such point as the new convention has concluded, and the new model has been produced, and maybe there’s a changeover date or something. But until such time, I mean, we can’t have anarchy, but I’m wondering if people would really lose faith and the status quo based on, “Well, in a couple of weeks, this is all going to be moot anyway.” That seems really shockingly dangerous.
But to be fair, I don’t know that I have a prescription for a better alternative. Now, you mentioned the delegates to the convention, and I know that sounds pretty straightforward, but does the Constitution articulate how even that procedure works? Is it the case that if we do get 34 states, does each one of them send one delegate, which would make 34 delegates to a constitutional convention, and those are the people that decide things, or is even that itself ambiguous?
Dr. Rob Mellen: Yep, even that process is open for whatever the state wanted to do. The original constitutional convention, I think, had 55 or 56 delegates, I haven’t looked at that number in quite a while. Ultimately, only, I believe, 39 of them signed on at the end. They lasted and several disappeared during the convention, but I think there were 39 signatories at the end of the whole process, and Rhode Island boycotted the whole thing altogether. They refused to send any delegates at all. It’s a brave new world if you try to go down that road.
Now, as far as worrying about the legitimacy of the current institutions, I wouldn’t be overly concerned about that. Because I would think that most of what’s happening at this constitutional convention would be private. That delegates would not be out in the bars drinking and saying, “Hey, we look at what we voted on today.” Although I’m sure that the news media would be like wanting to be there and covering every single thing. Most of it would take place privately, and there would be probably very little word about what was happening until they came to a conclusion with a document.
The good thing, I think, that could come out of it is that most Americans in particular, those who are active in politics, have a strong reverence for the political process, and the system as it is. I think that states would be careful to appoint people that are knowledgeable, that hold that, what we call political culture, essentially a shared, respect or a shared, I don’t want to say reverence, but a sense of doing what’s right, essentially making government work. So I think that we would be okay in that regard. But, again, there’s no guarantees of that.
Dr. Gary Deel: Yeah, I’m skeptical that people would be comfortable with the private context of the convention because people are so used to, accustomed to expecting public notice and comment periods on everything, which, to be fair, in the typical process that we have today, that’s fairly customary.
But even in, I would wager a guess that a lot of people felt like the insurrection on January 6th that we’ve talked about previously, was, if not entirely, at least largely a product of the fact that people feel like decisions are being made by people they didn’t vote for outside their control behind closed doors in this “ivory tower” so to speak, of corrupted politicians, and that they don’t have a say in the direction that their society is heading in.
So, I wonder how much resistance there would be to this idea that, “Hey, we’re going to reinvent the whole system, but you’re not invited, and you’re not allowed to offer an opinion, and you’re not even going to know what happens until it comes out. So just wait at home for the letter in terms of what your new government’s going to look like.”
Dr. Rob Mellen: Yeah, I think that would be a definite concern among certain groups of people. Yes, I think that there would be a lot of people who would be suspicious of anything that takes place in private. But if you think about it, the vast majority of Americans, they have no idea how their government operates anyway. Even though things are out in public and C-SPAN is covering debates in the House and the Senate, you’ve got these public access channels, and who watches them? Political junkies like you and me.
The rest of America, if they tune in at all, they flip on CNN, they flip on Fox News, they flip on MSNBC for a few minutes, and they hear something and then they’re carried away by whatever they’ve heard on that.
If you look at the total viewership of those three news networks combined, it’s like six or seven million people a night out of a population of 330 million Americans. So it’s very, very tiny percentage that are actually following or paying attention to what’s being said, although that’s not the extent of its reach because of social media, Twitter, water cooler chat and everything else.
People get informed one way or another, and they learn about things. But I think that the percentage of Americans who are attuned to the political process is much smaller than what sometimes thought out there.
Dr. Gary Deel: I think you’re right. First, I have to confess you gave me far more credit. I can’t watch C-SPAN for five minutes without falling asleep, but I do try to keep abreast at least to the major headlines on what’s going on. But I think you’re right, I think you have a small subset of the population that is politically active and interested and reasonably well informed. You have another small subset of the population that is politically active and interested and terribly misinformed.
Then you have a fairly large swath of the American public that is far more interested in who wins this season of “The Voice” then who’s elected president or even who is the president right now. It’s depressing, but surprising when you see these question and answer sessions on the street. I think Jimmy Kimmel’s talk show at night does this where they go out to Hollywood Boulevard, and just ask people who the vice president of the United States is, and the answers are always shocking and disappointing, but rarely accurate.
So, I think there’s a lot more in terms of priorities amongst the average American than just politics. And for a lot of people politics doesn’t even rank anywhere on the scale. Maybe that’s good that there’s a certain balance that everyone isn’t living and dying by the 24-hour news cycle of the political spectrum. I don’t know that that would be healthy.
I think perhaps more vested interest from the average citizen might be a good thing to understand the issues, but heaven forbid they become as misinformed as some of the worst folks out there, then you have this, what’s happening now, which is basically a flat-out denial of reality around things like the fairness and the outcome, the legitimacy of the 2020 election, and whether it was a fraudulent hostile takeover by some secret Illuminati cabal. We’re arguing about whether the sky is blue today, and I think that’s, to some extent, as dangerous as people who don’t care at all. I wonder if you agree?
Dr. Rob Mellen: Generally, yes, I think that you make some very good points. That people aren’t as attentive as they need to be, that it would be better if more people were aware of the process. I mean, that’s why we do what we do. Right?
I mean, that’s why we teach what we teach, or at least on my side, I teach American government a lot. And one of the things that I focus on is that I want the students to understand as you move forward, and you become participating citizens in your society, you are the generation that’s going to be responsible for making changes.
You’re going to be responsible for carrying on this thing we call the American Experiment. We definitely need to do more to get people to have at least a basic knowledge of how things work. That will take us a long way towards the process of accomplishing the reforms that you want to talk about. And how we can move forward in a partisan society so that we can bring about lasting change, and we can have a government as Abraham Lincoln intoned, a government of the people by the people and for the people that shall not perish from the Earth.
Because I think the biggest lesson for a lot of us that came out of January 6th was that our democracy is not guaranteed. That we came very close that day to the toppling of the world’s oldest democracy. It happened in Venezuela in the late ’90s, early 2000s, with Hugo Chavez, and then now Nicolas Maduro. And they were the one of the strongest Latin American democracies, and people thought, “Wow, this democracy is stable, it lasts forever, it has a constitution, it has elections.” It took one man to topple that, and to bring that system down. We came real close to that in January.
I was watching C-SPAN, actually I turned it off that day. I was watching the electoral vote count on January 6, and a contractor showed up to redo my kitchen, and so we turned the TV off while we were going over the bid with him. Then I flipped the TV back on and I see all these people assaulting, climbing the walls of the Capitol and going in, and I’m like, “What in the world has just happened here?”
So we sat mesmerized for hours now watching this happening and thinking, “What is going on and where’s the future now?” Possibilities for reform exist, but we have to start with a knowledge base that I don’t think we currently have.
Dr. Gary Deel: I agree 100%, I think that was well put, the inspiration or the motivation behind writing the articles that I did a few years ago to encourage people to think more about these issues, I mean, myself included. I don’t purport to have all the answers or to have infinite knowledge as it pertains to how to fix the problems of our society, I think we can do better.
But we have to be careful not to assume that this democracy is guaranteed or that it is here to stay indefinitely, we have this complacency, this comfort of an expectation that tomorrow will arrive in a peaceful, safe, secure, stable society.
And you pointed out there are places around the world where that’s just not the case, and we can look at the writing in the wall. As you pointed out on January 6th, that it’s entirely possible something like that could happen here.
Yeah, opportunities for good to be done, but also opportunities for us to cut the foundation out from underneath everything that we’ve built in our society. My fear is that people will not take the time to understand the issues well enough to be able to make informed decisions, whether that’s voting for a representative or voting in a pure democratic sense on the issues.
I think that potentially could work, but not if people don’t understand what it is that they’re doing. You’re right, that is the biggest opportunity for us, but also the biggest challenge with respect to how we move forward in this government.
Dr. Rob Mellen: That puts you in good company, when you say you don’t have all the answers, because none of us do. The framers admitted they didn’t have all the answers. They spent months debating and not knowing how things were going to turn out. Then you look at Alexander Hamilton, you look at Thomas Jefferson, you look at James Madison, who were instrumental in the early years of the republic, and they disagreed on what things meant that were written down. They didn’t know how all of this was going to play out when they created what they created back then.
Ben Franklin’s famous words, when he was asked, “What kind of government have you created?” “A republic, ma’am, if you can keep it.”
Well, that’s the challenge that we face, is we’ve been handed something, it has evolved over the years into something that maybe we’re not so happy with, and that’s what occasions this podcast today, and this discussion is, how did we get where we are? And what do we need to do to get back to the original vision of a government that has citizen input but also is flexible enough to meet the needs of modern America?
We’re not the agrarian society we were at 1787, most Americans don’t live on farms. We live in big cities, we have different needs. So you have to figure out how do you make government work for all of those people. The answer in my book really is local government, because local government’s where it’s at, and it’s what we ignore most of the time. If I were to ask the vast majority of Floridians what type of government their town has, I bet that most of them couldn’t tell me.
They couldn’t tell me if they have a mayoral system or a city manager system or a city council system, because they don’t know, and they don’t participate in that. But that’s where you can have the kind of democracy you’re talking about, direct democracy can take place in the local level or at the local level. Because we can all get involved and we can make changes in our communities that can bring about the kinds of things that we want.
Sure, we’ve got national policies, national laws, those are meant to address national problems. But when it comes to the local level, we have all the power to address local issues. Why don’t we use it?
Dr. Gary Deel: I think that’s a wonderful point, and this has been a really enlightening discussion on a lot of different levels in terms of improvements that await us and are available to us, but pitfalls and dangers that we have to be careful about in the process. Is there anything else you wanted to share with our listeners before we wrap up?
Dr. Rob Mellen: Just get out there and participate, make yourself knowledgeable. Thomas Jefferson said that, for democracy to survive, the most essential element, and I’m paraphrasing here, is to have a well-informed citizenry, that if the citizenry is not informed on the issues, democracy cannot survive.
Dr. Gary Deel: I agree with you wholeheartedly, and that’s a quote that I support 100%. I’ve used it a lot with my students and with others that I’ve spoken with, and I believe that wholeheartedly. I think that’s a great place to press pause on this, and hopefully, we’ll have you back at some point for part three, because there’s plenty more to talk about on this subject.
But otherwise, I want to thank you for sharing your expertise again, and your perspectives on these topics today, and thanks for joining me for this episode of Intellectible.
Dr. Rob Mellen: It’s my pleasure Gary, and I look forward to it if we get to do it again.
Dr. Gary Deel: Likewise. Thank you to our listeners for joining us. You can learn more about these topics by visiting the various American Public University-sponsored blogs. Be well and stay safe everyone.