Jurisprudence

If Joe Biden Is Serious About Protecting American Democracy, Here’s Where He Can Start

A hand drops a card in a ballot box.
A voter returns an activation card after voting at the Veterans Memorial Leisure Center on November 3, 2020 in Las Vegas, Nevada. Ethan Miller/Getty Images

At the birth of the modern administrative state, its founders recognized that they did not yet know how to make bureaucracy work well. So in 1936, as part of his New Deal, FDR appointed a committee to study and recommend changes to the federal bureaucracy. It made many recommendations, including that the president establish “a research agency to investigate the broad problems involved in the administrative management of the government.” At first, the idea was ignored. Then Dwight Eisenhower picked it up in 1953, establishing a temporary conference to study administrative procedures. John Kennedy renewed it in 1961. Lyndon Johnson then made it permanent in 1964. Or almost permanent — Newt Gingrich tried to kill it in 1995, but it returned to life 15 years later.

Advertisement

The aim of the Administrative Conference of the United States has been to make administrative law work better. Academics and practitioners work together to produce studies of administrative procedures and to make recommendations for their improvement. Many of those recommendations have been adopted. Though the conference has no regulatory or rulemaking power, its analysis has produced important advances in the effectiveness of the administrative state. Justice Antonin Scalia described the conference, which he chaired for two years, as “one of the federal government’s ‘best bargains . . . for the buck.’”

Advertisement
Advertisement
Advertisement

America now needs a Democracy Conference of the United States. That conference must be even more ambitious than its administrative law sister. For as the past decade has taught us, we don’t quite yet know how to do democracy well, either. From inefficient and insecure technologies for voting, to gerrymandering, to the distortions of the Electoral College, to recent efforts to overturn democratic elections for president as we know them, and most urgently, to the improper dependencies of money in politics, American democracy, at least as it relates to federal office, is not something to be proud of. The ideal of our Constitution — of a republic, by which our framers meant a “representative democracy”—is plainly betrayed in the details of the institutions that we’ve crafted to make democracy work.

Advertisement

Many of these weaknesses would be addressed in the most ambitious package of democratic reform considered by Congress since the Voting Rights Act of 1965 — H.R. 1. That bill would make enormous improvements in the systems of American democracy. The current Congress should do whatever is necessary to ensure that bill becomes law, lest the flaws in our democracy cause it to slip even further away.

But that bill itself is just a beginning. There is much more to do, and even more that we don’t yet understand. H.R. 1 includes an extraordinarily important plan for ending the dependence of Congress on big money contributors, while piloting an even more ambitious alternative that could bring more citizens into the political system. Yet we have no effective way to evaluate these alternatives. And we have no ongoing mechanism for measuring how these changes in particular, or systems in our democracy generally, are working.

Advertisement

This is what a Democracy Conference could do. The conference would be charged with identifying — and testing—best practices for making representative democracy work better. Those practices would include voting, but not just voting. The aim would be to improve the representativeness of our democracy, fundamentally: To assure that all have an equal freedom to vote, to assure that their vote is weighed equally, to assure that all have an equal role in selecting the president, and most fundamentally, to assure that neither the president nor Congress is dependent for campaign funding upon an unrepresentative few.

Advertisement

Obviously, such a conference must be crafted with partisan care. If the principle that must guide its work is clear and uncontroversial — to efficiently enable those entitled to participate in our democracy, and to assure, within the confines of our Constitution, that its institutions are representative — still, its work must be constrained by a Star Trek-like Prime Directive: never may its proceedings have any direct partisan effect. The conference should identify reform that would benefit all within the political process; it must leave the laws and procedures for achieving reform to representatives within a democracy. Just as the Administrative Conference inspired changes in the rule making processes and alternative dispute resolution techniques, based upon real analysis that showed what would work best, the Democracy Conference could test techniques for improving the security of voting, or for lowering the costs of participation, based on empirical analysis of what works best. The best practices of democracy could be shared across our democracy, just as the Administrative Conference has allowed the best practices of administrative law to spread within government. Our aim should be to benchmark the systems of our democracy, and in each cycle, work to improve them based on what we learn works best.

Advertisement
Advertisement

As Eisenhower and Kennedy did with the Administrative Conference, President Biden could launch this idea immediately through a temporary Office of Democracy based at the White House. That office would take up the urgent and immediate needs of democratic reform. But it would also lay the foundations for a much more permanent organization — and one that does not live within the White House, as others have suggested. A Democracy Conference must stand next to the political process; it can’t maintain its neutrality or trust if it stands within it.

We won’t know how best to improve our representative democracy in the next four or even eight years. But we must craft an institution that persists in asking that question until America is confident that we’ve found the right answers. That institution must be permanent and independent. If it succeeds in both, it would make an enormous contribution to improving our democracy.

Advertisement