Aiming to regain some relevance in the Republican Party, Jeb Bush argues that it should show voters that it stands “for a few a big ideas” rather than only for things to vote against.
Regrettably, four specific ideas that he proposed in a Nov. 24 Wall Street Journal op-ed are not simply big but bad.
“Republicans should support convening a constitutional convention to pass term limits, a balanced budget amendment and restraints on the Commerce Clause, which has given the federal government far more regulatory powers than the Founders intended,” he wrote.
By far the worst is the notion of calling a constitutional convention to pass anything. The Constitution obliges the Congress to call one upon the request of 34 states, but it says nothing about how delegates would be chosen or whether the agenda could be limited to any one issue or set of issues. The uncertainties are so potentially dangerous that this method of amendment has never gone far.
A convention could call for scrapping the entire Constitution, replacing it with we know not what.
The Constitution itself is the product of a convention that was called to revise, not replace, the feeble Articles of Confederation.
That was progress. In the current sour national mood, would a convention respect what’s good about the Constitution — the Bill of Rights, the separation of powers, the independence of the judiciary? Or would it reward the authoritarian instincts of an incoming president who has no respect for any of that?
Just this week, our budding dictator called for revoking the citizenship of people who burn the flag. Never mind that it’s the approved method for disposing of one that’s tattered or soiled.
Could a convention abolish the Electoral College? No, because there are not 38 states that would ratify such an amendment.
Would convention delegates be elected or appointed by the state legislatures, which are so badly gerrymandered as to be essentially unrepresentative? If delegates were to be elected, would the Koch Brothers and their big-money allies effectively buy themselves a convenient Constitution?
Bush’s suggestion of a convention as a means to term limits looks like a deep knee-bend to Donald Trump. Mitch McConnell, the Senate majority leader, has already told Trump to forget about that one.
“We have term limits now. They’re called elections,” says McConnell. For once, I agree with him.
Senate elections can be brutally competitive—we’ve just seen some—except in the most extremely red or blue states. Everywhere, party primaries can and do dispose of seemingly entrenched senators. Indiana’s Richard Lugar comes to mind. As The Washington Post has noted, 64 of the 100 senators have been there less than 10 years, and slightly more than half the 435-member House are new since 2008.
House elections are not nearly as competitive as they should be, but that’s because of gerrymandering. The federal courts are finally showing signs of doing something about that.
The term limits initiative that Bush’s buddy Phil Handy foisted on Florida in 1992 ranks as the second worst mistake — behind secession — the state ever made. It did little to promote more turnover. It made the Legislature worse, dumbing it down and leaving it weaker against the lobbyists, its leadership and the executive branch.
If it weren’t for term limits, Florida House Speaker Johnnie Byrd—widely disliked but still powerful—could not have said, as he did in 2004, that his members were “like sheep, waiting for someone to tell them what to do.”
The damage works this way: Having only eight years to make their marks in the House or Senate, new members must follow the leaders or their bills won’t be heard and they will never become committee chairs.
In older, better days, legislators could dare to be independent in the knowledge that they could outlast unfriendly leaders. That was true of some who went on to become speakers and Senate presidents themselves. But now, in the House, a future speakership can be nailed down by a freshman who has not yet shown any good judgment or any other leadership quality.
“If you’ve sided with the wrong people, you’re in the doghouse or in the mid-tier, you are more likely to get attracted to any open county commission seat,” departing Sen. Daniel Webster told the Miami Herald’s Mary Ellen Klas in 2008.
Klas calculated that only 31 legislators remained from the 83 who had been elected when term limits disposed of their predecessors eight years earlier. But only five of the 83 had been voted out of office before their time ran out.
Although term limits have increased competition for open seats, they seem to be discouraging opposition to incumbents. Potential challengers wonder, reasonably, why they should invest time and money against an incumbent rather than wait for his or her enforced departure. The result: some incumbents could not care less what the voters might think of their deeds in Tallahassee.
What’s most wrong there, as in other state capitals, is the redistricting that leaves too many seats safe for one party or the other, giving the voters no effective choice. Of the 120 Florida legislators voting on new districts during a special session in October 2015, nearly a third—50—were elected without any primary or general election challenge.
As for Jeb’s other dubious reforms, I know of not nation that hogties itself the way a balanced budget amendment likely would, giving extreme power to minority voices in event of an emergency. History suggests an alternative: elect Democrats. Bill Clinton and a Democratic Congress balanced the budget and generated a surplus.
As for the Commerce Clause, it was perhaps the single most important provision the Founders established to knit together the 13 independent states into a functioning economy. There is already a check on the Commerce Clause: It’s the Supreme Court, as the court implied in rejecting the clause as a justification for Obamacare, which it upheld only under a different provision, the power to tax.
The future of our country is already uncertain enough in the hands of an unqualified and irrational president-elect. We hardly need a constitutional convention, or any of Jeb Bush’s other bad ideas, to make things worse.
Martin Dyckman is a retired associate editor of the newspaper now known as the Tampa Bay Times.