Mixed member House

I've written about gerrymandering before (and solutions to it), but the more I think about it, the best way to fix the problem is to remove the incentive. Proportional representation is good (and here), but the simplest change to the system is mixed member representation.

Here's how the system could work:

1. Expand the size of the House to 540 districted members. This means the smallest district (Wyoming's) is everyone's size--about 600,000 constituents. The current number of House districts--435--has been fixed since 1911. Some things have changed since then... (I guess this isn't strictly necessary to a mixed-member system.)
2. Have independent commissions in each state draw the districts, with a first priority to keep communities of interest together, although districts need to have the same 600,000 people, so it won't be perfect. This means you'll have some heavily African-American districts, heavily Latino districts, and big rural districts. Geographical compactness can take a back seat. Yes, that's right--we might have some ugly, squiggly districts. Trust me, this will work. Independent commissions' proposal should be approved by 2/3 of the votes in the state legislature, which should be easily achieved because everyone can recognize that districts are reasonable communities of interest.
3. Modify ballots to include two questions for the House races: (a) Which candidate do you support for your House district? This could use approval voting to allow selection of more than one candidate in multi-candidate races. (b) Which party would you like to see control the House? This must be a single selection.
4. Winners on question 1 win their district and get the seat. Because of the way we've drawn the districts, we're more likely to see black representatives run and get elected, Latino representatives, etc.
5. We've got district races done and can look at the composition of the entire House so far. For example, the House might be 290 seats for party A, 250 for party B. This establishes the seat share for party A of 53.7%. In the next stage--the mixed member part--votes on question 2 are now compiled nationally. If the vote share and the seat share are not the same, then the party that is underrepresented in the House has at-large seats added. Seats are added until the seat share is within 1% of the vote share. In our example, let's say party A won 55% of the vote. Party A would have 4 seats added: 294 out of 544 seats is 54.04%. If two or more parties are underrepresented, whichever one is farther behind has a seat added first. Two parties might ping-pong back and forth in adding seats.
6. Once the total number of at-large seats each party gets is decided, then those new members are selected. The at-large members are chosen from the party's candidates who lost but received the most votes. In other word, party A's four additional seats would go to whichever of its candidates lost very close district races.

Stop and think about the incentives of this proposal. There's actually a triple incentive to draw fair districts. Independent commissions want to get the districting plans to supermajority status; there's no reason to draw unfair districts, as you'll lose any gains in the at-large seats part of the plan; and having several competitive districts might increase your state's representation in Congress. States would want to draw at least a few competitive districts to get one over on the neighboring states.

In theory, it's possible that you have to seat 519 additional members (party A wins 49.9999% percent of national House votes but loses every single district race), but in all likelihood, we're talking about an extra 5% of seats--perhaps 20-30 additional seats. Altogether, a 570-member House is about 30% larger than today's. It's big but still manageable. And it's gerrymander-proof. The incentive to gerrymander disappeared.

And here's the most exciting part: You can vote for a third-party to have seats in Congress, even if no one runs (or has a shot) in your district. Let's say you want to vote for the Democratic candidate but throw your party support to the Greens. Or for the Republican candidate and put party support behind the Libertarians. Nationally, those parties will pick up enough votes to amount to at least a few seats. All they have to do is field some candidates in some districts, who will lose, but get picked up in the at-large representatives process.

My hope would be that third parties win enough support to deny either of the two major parties an outright majority, forcing the major parties to form coalition governments with third parties. Suddenly, we're looking at a system that doesn't freeze third parties out of power entirely; we're looking at a system that gives third parties enough seats in Congress to be involved in some leadership decisions. Support for a major party's Speaker might come at the cost of a committee leadership position. The Green party might demand leadership of the Natural Resources committee to support a Democratic speaker. The Libertarian party might demand leadership of Judiciary to support a Republican speaker. It seems likely, though, that this system creates more third party involvement.

teaching different ethical philosophies

The U.S. Constitution was in many ways modeled on the British government, which was in turn modeled on the Roman republic, and perhaps our founders' goal, like the Brits' goal and like Rome's goal, was to create a government that blended monarchical, aristocratic, and democratic elements. In our federal government, the Presidency is supposed to represent the monarchical, the Senate the aristocratic, and the House of Representatives the democratic elements.

It occurred to me recently that whether this bit of historical speculation is true, the three branches of the U.S. federal government provide a real-world example of the three main kinds of ethical philosophies in action. Congress generally works on some kind of utilitarian basis, although examples abound to the contrary. However, the general logic of institution is to weigh competing interests and find compromises that benefit the greatest number (and thus get majority support). The Presidency, as an institution, must be grounded in a virtue-based ethical philosophy. The Presidency was set up to deal with crises needing immediate action and unitary leadership: economic panics, wars, natural disasters, etc. Exigent and unique circumstances impede the President from using a deliberative, majoritarian process and also from using a process where he or she strictly follows a predetermined set of rules of ethical actions. We're left to hope that the President acts in good faith.

This leaves the judicial branch. The Supreme Court and the appellate courts operate on a kind of deontological basis. Granted, they're not Kantians. But the role of Constitutional interpretation involves a very similar kind of reasoning: the justices start with a first principle (the Constitution, rather than the categorical imperative); they apply this principle to real-world dilemmas by a hierarchy of values (e.g., whether the commerce clause or states' rights is more important) and distinctions (e.g., whether there is a difference between a tax penalty for not buying insurance and other taxes). The question of a limiting principle would make immediate sense to Kant, who seems to have struggled with limits on truth-telling, for example. It makes sense that the judicial branch would be filled with a kind of deontologist (should we call them Constitutional deontologists?), given that the primary purposes of the courts are justice (due process and due punishment) and, more broadly, justice (i.e., whether the laws themselves are just).

Using the branches of government as a model for kinds of ethical philosophies gives students something to latch on to. It gives the students a rough empirical basis for imagining the different thought processes and considerations that occur within each ethical philosophy: "Oh, just like Congress weighs the needs of Texas against those of all Americans." It especially helps them understand deonotology as an absolutist, first-principle-based philosophy, even though the first principle is different. The most important benefit of using the branches of government as a model is that students realize that an ethical philosophy is a framework, not a script. Just as Congress disagrees, so do utilitarians. Just as deontologists reach different conclusions, so do the Justices.

Update 1/5/22: One student's question today made me realize there's a symmetry with the three types of ethical philosophies.

- Two philosophies, deontology and virtue ethics, say intentions matter. Consequentialism doesn't.

- Two philosophies, virtue ethics and deontology, say morality depends on context. Deontology doesn't.

- Two philosophies, consequentialism and deontology, are outwards-looking. Virtue ethics is inward-looking.

In a way, it's like Arrow's paradox that voting systems can't have all desirable features simultaneously. There's something similar going on with ethical systems; perhaps it's impossible to have every desirable element of ethics realized in a unified and coherent way.

Should all laws sunset?

A recent article on Germany's system of periodic legal review got me thinking. Specially-tasked panels in the government review old laws and recommend updates to the legislature; some old laws are recommended for repeal. There is an obvious efficiency advantage to updating old laws, but there is also a democratic value to it as well. Why do laws bind future generations indefinitely? The problem is even worse when you consider laws passed by slim majorities. As a thought experiment, I like to ask my students to consider this proposition: All laws should sunset.

Here is the scenario I give them: the size of the majority that passes the law will determine its longevity. I give them this function as an example: years duration = 0.0005 x^2 + 0.0012 x + 1, where x is the margin of victory minus 1 (the coefficients are scaled to the U.S. House of Representatives). A one-vote margin of victory would entail a year's duration. A more standard party-line vote, say 242-193, would result in a two-year duration. Around a 60% majority, say 255-180, would result in a four-year duration. A unanimous passage would result in a 96-year duration. This example seems reasonable, so it forms the basis for our discussion.

Three interesting game theory questions always come up.

1. This gives a meaningful distinction to a vote to abstain, from a yes or no vote. The vote to abstain does not impede the law's passage, but it does limit its duration.
2. This gives the ruling party in Congress a real incentive to craft bipartisan legislation, if they want the law to endure beyond one term of the House. This could backfire, of course, and make the country even more difficult to govern. Not least of the reasons why it might backfire is the notion that Congress will have a very full docket re-passing about-to-expire laws. The tax code comes to mind as a frequently recurring matter, because it will never pass with large majorities.
3. What about repealing laws? Say a law has 76 years left. Does Congress have to muster a supermajority (411-24) to repeal it (an all-or-nothing repeal rule)? Or would the repeal rule be that a simple majority could "injunction" it for a year, but then the law would come back in force? For the purposes of the discussion, I usually go with the latter idea -- it more cleanly hews to the idea that laws should not be binding in perpetuity.

Students have a fun time discussing this idea. Invariably, we discuss how difficult it might be for everyone to comply (the lack of predictability), but I try to steer the discussion to this core idea at the heart of the thought experiment: Ought some rights exist in perpetuity? Is it democratic to have a fixed Bill of Rights?

Here's some further reading. And another article on the liberal bias to policymaking, specifically because it is difficult to repeal laws.