The Question for My Critics

If you're among the 82 percent who agree "the system is rigged," the question is not what you think about my proposal in the abstract. The question is comparative: How does my proposal stack up to the proposals of others? Whose is more likely to succeed, and at what cost?
09/02/2015 07:41 am ET Updated Sep 02, 2016

Three weeks ago, I launched an exploratory campaign for a run in the Democratic Primary for president. I promised a different kind of presidency -- one committed to the fundamental reform that would begin to restore a representative democracy. Because I believed that extraordinary reform would require an extraordinary mandate, I said I would serve only as long as it took to pass that reform. Once it was passed, I would resign.

To test the idea, we launched a kickstarter-like campaign, aiming to raise $1 million by Labor Day. Three weeks in, we're almost 75 percent along the way, with more than 6,000 contributors, and hundreds of volunteers. My inbox has been filled with encouragement and thanks.

And more. For not everyone has greeted my idea with enthusiasm. While there have been many words of smart if skeptical encouragement, a fair reading of the third-party commentary is decidedly against my "absurd" "insane" ridiculous" "egoistical" "stupid" idea -- indeed with such confidence that even former students have piled on. (John, jeez man.).

But as I've read these responses, there's a constant question that seems never to occur to the critics. I want to press that question here, because however "absurd" my idea may be, the ultimate question is this: If not this plan, then what plan?

My idea for a referendum president was motivated by a set of assumptions.

I'm a #winteriscoming sort. I believe, in the words of Tom Mann and Norm Ornstein, that "the country is squandering its economic future and putting itself at risk because of an inability to govern effectively." I believe, moreover, that our "inability to govern" is tied fundamentally to the way we've permitted our representative democracy to be corrupted. It is, in my view, the vast political inequality that we have allowed to creep within our system that produces the systemic failure of our government to be responsive to Americans. (And for the data about that gap, begin with the extraordinary work of Martin Gilens and Ben Page. We will only have a government that works if we address that fundamental political inequality.

That inequality (political inequality -- I'm not talking here about wealth inequality) manifests itself along many dimensions. The one I've work on most is the way we fund campaigns. Whatever else a system in which 400 families contribute 1/2 the money to political campaigns in this election cycle so far is, it is unequal. And it should surprise no one that such a system produces politicians focused on their funders first -- even when the views of their funders, as Paul Krugman has recently so powerfully described, conflicts with the view of their voters. The system, in the words of Elizabeth Warren, is rigged because of this inequality. Our first task should be to remedy this inequality. Or in the words of the slogan that tests best: Fix Democracy. First.

If you're among the 82 percent who agree "the system is rigged," the question is not what you think about my proposal in the abstract. The question is comparative: How does my proposal stack up to the proposals of others? Whose is more likely to succeed, and at what cost?

My commitment is to get Congress to enact the Citizen Equality Act of 2017, and then to resign. (Allen Dickerson states the Citizen Equality Act "does not exist" or is "inchoate." That's not true. As the website states, the act incorporates existing proposed legislation. That existing legislation is the baseline, and as such, it could be passed tomorrow. If the campaign takes off, we intend to work from that baseline to craft a single, comprehensive act. But the package with the different acts now incorporated by reference would be a fine statute to enact.)

That commitment leads some to think I might not understand how our government works. They thought perhaps I missed the fact that we have a Congress, and that laws must be passed by Congress. As a professor of constitutional law for almost 25 years, I can assure you that in fact, I know there is a Congress, and that the reform I am describing would require Congress to enact it. Indeed, it is precisely because such reform requires Congress -- and because I believe Congress would be unlikely to pass it -- that my idea tries to create an extraordinary mandate, one that Congress would find hard to ignore. That's the purpose of the promise to resign -- not because I have "no interest in holding" the office of president, as Seth Masket puts it. To the contrary: I'd give my right arm to be able to serve as president for four or eight years. The reason I have committed to resigning is so that there is no ambiguity about what the people have said. If I'm elected, their message would be clear: Pass the referendum.

But still, these critics argue, it will take time. (Masket reminds us that Obamacare took 14 months to pass. That's true, but of course the Recovery Act was passed in 24 days.) What will I do while Congress contemplates the Act?

The obvious answer of course is that I'd serve as president, and that the burden on me during a campaign is to convince the public that I could serve well. That's a fair burden for me to bear. There are emergencies. There could be threats to the nation. Just as with any candidate, until you're confident I could exercise proper judgment in a crisis, you shouldn't support me.

But beyond a crisis, the critics press, what about the other powers and responsibilities of a president. What would I do with those?

In a series of exchanges on a Reddit AMA (and if that word is obscure to you, you're missing one of the most interesting and generative if difficult platforms of communication on the Net), I tried to respond in detail when pressed. I said powers related to the next president I'd hold in trust for that president, and exercise only in consultation with her, while powers unrelated to the next president I'd exercise myself. So a pardon would be my call, who the Secretary of State should be would be our call; substantive issues beyond the Citizen Equality Act would be our call; the nomination of a judge would be a hard case in the middle.

But that was the wrong response to that question, because it leaves the most important point obscured.

Yes, there is uncertainty in the details of my plan. I can't predict every case; I can't promise how long Congress would take. Historically, Congress has given a new president his signature legislation quickly. I sincerely believe we could run a campaign that would accelerate "quickly" a lot.

But the better response -- again for those who accept the assumptions that I've outlined above -- is this: what's the alternative? If you assume it would be hard for me, do you assume it would be easier for an ordinary president? If you accept my premise that reform is essential first, do you believe the alternative -- an ordinary president who promises reform as just one among many priorities -- is more likely to pass that reform, first?

Because yes, we cannot know the details. But we cannot let the details stop us from the most important reform our democracy needs. The question isn't simply, what might go wrong. The question is also, what do we know will go wrong if we do nothing? And is that risk greater than the risk of trying something different?

Two and a quarter centuries ago, our framers faced a failed Congress of their own. They tried to fix it. In the end, they gave up. A handful of "founders" decided to go their own way. Without seeking any authorization from Congress, they conceived of the convention that would draft our constitution. That constitution contradicted the constitution it replaced. It raised a million questions, too. But in the end, America accepted that it needed to do something, regardless of the uncertainty. What was certain was failure; what the constitution offered was a chance of success.

My proposal is tiny compared with what they did -- both in significance and insight. But it is motivated by a similar view. I believe we face a crisis in governance. And I believe a failed Congress is at the core of that crisis. Again, "the country is squandering its economic future and putting itself at risk because of an inability to govern effectively." We must find a way to govern ourselves effectively.

I don't believe an ordinary partisan election can solve our nation's problems. I don't believe an ordinary president could have the mandate to take this corrupted system on. And so to the skeptics of my proposal, I ask this: Are you less skeptical that Hillary Clinton or Bernie Sanders could bring about fundamental reform? Do you believe their odds are better, in the middle of simply partisan election? Because that is the one argument that no one has made, even though it is the essential argument for evaluating whether my alternative makes sense.

#winteriscoming. In the words of Jon Snow:

You're right. It's a bad plan.
[pause]
What's your plan?