The revolving door and a brain drain

Yet over time, the amendment also acquired a few critics, including some claiming it’s one of the least-known causes of 21st century congressional dysfunction. The amendment inadvertently created two problems, Demand Progress’s Policy Director Daniel Schuman tells me.

“One, it worsened the revolving door issue, in which members leave for higher-paying lobbying jobs in the private sector. That both increases special interests’ clout and causes a ‘brain drain’ of institutional knowledge from the actual policy-making body,” Schuman says. “Two, the less that pay keeps up with inflation, the harder it becomes for anybody besides millionaires to serve. That renders Congress increasingly financially distant from the American people.”

“It worsened the revolving door issue, in which members leave for higher-paying lobbying jobs in the private sector.

“The consequence of all that is legislation that usually reflects the special interests and isn’t well thought through,” Schuman continues. “When you make it so people can’t afford to serve in Congress or run for Congress, you’re making the overall system degrade.”

Thomas Mann, Senior Fellow in Government Studies at the Brookings Institution, contends that the amendment’s effects — while popular — may have also perpetuated what he perceives as the American public’s dangerous animosity towards Congress.

“It passed because it was a perfect time to attack Congress, reflecting the animus that had come to be steered at Congress, which was largely a political strategy to delegitimize it. Our country since then has suffered from a precipitous decline in trust of government, which I would argue has done more harm to the country than any larger salaries that might have been approved,” Mann tells me.

“[A] precipitous decline in trust of government…has done more harm to the country than any larger salaries that might have been approved.”

“Besides,” Mann adds, “whether a raise goes into effect after the next election is relatively trivial, considering that more than 90 percent of incumbents are stable from pre-election to post-election period.”

Does Congress look like America?

Watson, for what it’s worth, disagrees with the argument that current congressional pay should remain level or increase.

“As one who has had to subsist on bread crumbs for a number of years, it’s hard for me to empathize. Even with the percentage decline through the decades, how much do members of Congress still make?” he asks. Upon being told it’s $174,000 per year, Watson answered, “I can’t afford a car. I always have to bug someone for a ride. So it’s hard for me to have sympathy.”

This creates an interesting debate. Schuman argues that higher salaries will make Congress look more like the general public by allowing more middle-class people to run, while Watson argues that lower salaries will make Congress look more like the general public by bringing their salaries in line with most of the population. Who’s correct depends on your viewpoint.

The most popular current amendment proposals

Are there any possible amendments which the American public should keep an eye out for possible enactment within the next few years?

The Republican proposals

Three top Republican ideas include:

Requiring a federal balanced budget, which has attracted 49 of the 52 Republican senators as cosponsors this session.

Yet even with Republicans controlling both Congress and most state legislatures at levels unseen since the 1920s, these and other GOP-supported ideas have made little headway since their introductions earlier this year.

Ironically, the amendment making the most legislative headway under the Trump administration is a proposal from the Democratic Party.

The Democratic proposals

The Equal Rights Amendment, which would grant women equality under the law, passed two-thirds of both the House and Senate in 1972, but stalled three states short of the required 38 for ratification. Amid progressives’ fears of a potentially imminent Roe v. Wade reversal, Nevada’s Democratic legislature ratified the ERA in March, the first state since Indiana did so in 1977.

The original deadline for ratification was in the 1980s, but congressional Democrats have introduced a bill this session to retroactively remove that deadline. Now only two states short of the requirement if the deadline is extended or removed, activists are targeting Illinois and Virginia.

The original 1980s-era deadline could be removed by either a Democratic-led Congress or a court ruling that the establishment of a deadline was unconstitutional in the first place, the constitutionality of which has never before been adjudicated. But even if either of those things happen, the ERA still faces a heavy lift if conservative states which approved the amendment back in the 1970s rescind their approval if the amendment closes in on enactment, as could happen.

Other Democratic amendment ideas such as one allowing greater campaign finance regulation are currently dead on arrival. A Democratic-led movement to end the Electoral College is gaining steam by working around the constitutional amendment process. It’s a state compact under which states pledge their electoral votes to the national popular vote winner. It takes effect once 270 electoral votes’ worth of states sign on; 165 already have.

“The possibility of amending the Constitution is a good thing. It’s a peculiar document in many respects, but it’s at least kept us together for almost 250 years,” Mann tells me. “I suspect there will be a time when we have less partisan polarization, and there might emerge an amendment that has enough appeal. For now, it’s all show and tell. Members love to submit constitutional amendments in the Congress, because it shows how thoughtful and serious they are about fixing our government. But most of the ideas would do harm than good.”

Could an amendment ever pass again?

Twenty-five years ago last month, the 27th Amendment was enacted in the hopes of fixing a major persistent problem. Countless major problems today need fixing. So will America ever enact a future 28th Amendment?

In a 2013 interview, Watson answered yes. He cited the feasibility of a little-known provision spelled out in Article V of the Constitution, in which the requisite number of states ratify first and then Congress follows, rather than “Congress first, states second” as every successful amendment in American history has done. He noted at the time that even a gridlocked Congress might feel compelled to approve an amendment that so many states supported.

But now in 2017, following an increasingly polarized past few years, Watson hedges.

“It’s entirely possible the 27th could be the last and final addition,” Watson acknowledges. Enacted right before measurements of congressional polarization showed widening gaps starting in the mid-1990s, his amendment received bipartisan support at levels impossible today. “These days, you can’t get people to agree that Monday comes after Sunday.”

The Founders deliberately intended to make the constitutional amendment process difficult, but not impossible. The numerical thresholds they set were challenging but not insurmountable, under the right conditions and with a popular-enough proposal.

But these days, good luck with that. You need two thirds of the Senate and House, but neither party has surpassed 60 percent control of the Senate or House since 1978. You need three-quarters of the state legislatures (38 of 50), but while Republicans currently control the most legislative seats since the party’s founding, that’s only 32. So with a one-party amendment very unlikely, current record high partisanship and polarization might also make a truly bipartisan amendment a pipe dream.

Or Americans could use the second method for amending the Constitution: constitutional conventions. However, because none have taken place since 1787, nobody knows exactly how it would work in the modern day. Watson, for what it’s worth, advocates a constitutional convention or at least some form of congressional workaround. “If there were nationwide referendums, some of these amendments would pass. That’s why I’m a staunch supporter of referendum and recall powers,” Watson opines. “But the politicians often thwart the wishes of the people.”

If no more amendments ever pass

What would it say about America if no constitutional amendment ever passes again?

Madison himself opined in The Federalist № 43 that the amendment process “guards equally against that extreme facility which would render the Constitution too mutable and that extreme difficulty which might perpetuate its discovered faults.” In other words, it was a middle ground option, allowing the constitution to change as the times changed, but without changing so quickly or often as to render America chaotic.

Yet the middle ground constitutional solution intended by Madison and the Founders may have withered into irrelevancy, de facto leaving America without the public policy tool that abolished slavery and granted women the right to vote If current levels of polarization stay the same or increase, something quintessentially American could be irretrievably lost.

Then again, that lack of amendments may not prove calamitous, suggests Zachary Elkins, political science professor and co-author of The Endurance of National Constitutions. His book determined that only half of national constitutions survive longer than two decades, but he cites two key traits of the American system that most of those failures lacked.

“One, we have judicial review, allowing courts to adapt the document to modern society and render judgments about the internet that they couldn’t even conceive 200+ years ago,” Elkins tells me. “The other thing in our favor is the brevity of our document. These days, people write constitutions that are 10 or 15 times as long. Look at the Brazilian Constitution, it’s a very specific policy document. In that sense, ours is very adaptable, broad principles, not too many anachronisms that are hard to adapt to modern society,” Elkins explains.

The future

Regardless of whether any constitutional amendments ever pass again, at least the sanctity of the Constitution itself seems safe. “There is very serious polarization, but both sides are still appealing to the Constitution to back up whatever their positions are,” Elkins says. “The differences are on interpretation, but not on whether it’s a fundamental document.”

“The other thing in our favor is the brevity of our document. These days, people write constitutions that are 10 or 15 times as long. Look at the Brazilian Constitution, it’s a very specific policy document. In that sense, ours is very adaptable, broad principles, not too many anachronisms that are hard to adapt to modern society.”

Striking an optimistic note, Watson remarks that his challenge of trying to reach out and attempt to change legislators’ minds would in some ways have actually proven easier now with modern technology than several decades ago. “Back then, I had to mail out every letter with postage and typewriters,” he laments. “Last month, for free, I emailed every state legislator in Hawaii.”

Recent months have lent credence to Watson’s hypothesis, demonstrating that influence has in some respects shifted away from established venues such as newspaper endorsements to mass communication between regular individuals via social media. Only one of America’s 50 largest newspapers endorsed eventual winner Trump, while a random grandmother’s Facebook post suggesting a “women’s march” on inauguration weekend snowballed into protests attracting 3 million people nationwide.

Many Americans still doubt the continued ability of one regular American citizen to stand up and change the system. Tell them about Gregory Watson, an ordinary American who almost single-handedly accomplished what so many of the most prominent politicians of our lifetimes promised but failed to achieve.

Shortly before his amendment’s 25th anniversary last month, University of Texas held a ceremony formally changing Watson’s grade to an A. In these polarized times, surely that’s one amendment we can all support.

Jesse Rifkin writes about Congress for GovTrack Insider.