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Max Stearns — How to Repair America’s Broken Democracy

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Looking ahead to the 2024 election, most Americans sense that something is deeply wrong with our democracy. We face extreme polarization, increasingly problematic candidates, and a government that can barely function, let alone address urgent challenges. Maxwell Stearns has been a constitutional law professor for over 30 years. He argues that our politics are not merely dysfunctional. Our constitutional system is broken. And without radical reform, the U.S. risks collapse or dictatorship.

In Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy, Stearns argues that we are in the midst of the biggest constitutional crisis since the Civil War, and that the roots of the crisis are in the U.S. Constitution itself. The Framers never intended a two-party system. In fact, they feared entrenched political parties and mistakenly believed they had designed a scheme that avoided them. And yet the structures they created paved the way for our entrenched two-party system.

From the start, our systems of elections and executive accountability thwarted the Framers’ expectations. In the information age, it has spun out of control, and the result is a hyperpolarized Republican-Democratic duopoly that has poisoned our politics and society and threatens to end our democracy. The two-party system now undermines our basic constitutional structures, with separation of powers and checks and balances yielding to hyper-partisan loyalties. Rather than compromises arising from shifting coalitions, we experience ever-widening policy swings based on which party takes control of the White House in increasingly combative elections. The restrictive nature of the choices voters face in each election cycle encourages battles for the souls of the Democratic and Republican Parties, with more moderate voices on one side and more ideologically strident ones on the other. This two-party stranglehold on our politics is exactly what the Framers feared.

To survive as a democracy, we must end the two-party deadlock and introduce more political parties. But viable third parties are a pipe dream in our system given the current rules of the game. Stearns argues that we must change the rules, amend the Constitution, and transform America into a parliamentary democracy. Unlike our two-party presidential system, well-functioning parliamentary systems have multiple political parties that represent an array of perspectives, giving voters more choices that better align with their views. In such systems, parties compete in elections and then, based on the results, form a majority governing coalition. In contrast with the endless hyper-partisanship that pushes Democrats and Republicans further and further apart, coalitions represent the nation’s ideological core, capturing views of multiple parties, accommodating competing positions, and moderating the most extreme ideologies or partisan commitments. This improves the outcomes for citizens, which helps to explain why surveys have found that voters derive greater satisfaction and the governments are more responsive in parliamentary systems.

Achieving a robust parliamentary democracy in the U.S. requires amending the Constitution. Although this is difficult to do, Stearns explains why his specific set of proposals is more politically viable than other increasingly prominent reform proposals, which cannot be enacted, will not end our constitutional crisis, or both. What does he propose doing?

  1. Double the size of the House of Representatives, with half continuing to be elected by district, a new cohort elected by party, and the entire chamber based on proportional representation. This reform will allow us to end the two-party duopoly and create space for thriving third-, fourth- and fifth-parties that better align with voters’ values/worldviews.
  2. Transform how we choose the president and vice president. Power to choose the president will shift from individual votes processed through the Electoral College to party coalitions within the House of Representatives. They will select the president and vice president from party slates by inviting up to five party leaders, in descending order of representation, to negotiate a majority coalition.
  3. Provide a new mechanism for ending a failing presidency. The House can remove the president with a 60 percent no confidence vote based on “maladministration.” This standard is lower than the requirements for impeachment, and the amendments leave the impeachment clause intact. These reforms infuse parliamentary selection, proportional representation, and coalition building into the U.S. constitutional system while retaining and preserving our most essential institutional structures. The proposal would end the two-party system, create space for multiple parties, end partisan gerrymandering, moderate the most extreme ideologies, reduce polarization, and incentivize negotiation and compromise.

Maxwell L. Stearns is the Venable, Baetjer & Howard Professor of Law at the University of Maryland Carey School of Law. He has authored dozens of articles and several books on the Constitution, the Supreme Court, and the economic analysis of law.

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This episode was released on March 26, 2024.

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