Trump’s Nominees Confirm the Need for Electoral Reform

If you don’t immediately see the connection, here’s why.

If you are concerned about Donald Trump’s picks for Cabinet posts in his second administration—Matt Gaetz for Attorney General, or Tulsi Gabbard for Director of National Intelligence, or Robert F. Kennedy, Jr., for Secretary of Health and Human Services, or Pete Hegseth for Secretary of Defense—then you should be concerned about the procedures by which U.S senators are elected.

The Senate has several important constitutional roles, one of which is its “advice and consent” power for presidential nominations. This power is part of the checks and balances that the Framers built into the Constitution to protect against governmental tyranny and despotism. In the previous Common Ground Democracy essay, I explained why Donald Trump would not currently be president-elect if the United States had a system for electing presidents that accurately reflected the preferences of the nation’s electorate; instead, Nikki Haley would be. But even recognizing Donald Trump as president-elect under the Constitution, as he obviously is given existing election laws, he should not be given unilateral power to put into the Cabinet whomever he wishes. As the Framers understood, that is too much power for any individual.

Yet the Senate is in danger of being unable to exercise its constitutional function of rejecting inappropriate Cabinet nominations. Why? One simple reason: Republican senators “are petrified of getting primaried” by a Trump-endorsed MAGA opponent, as the veteran political analyst Charlie Cook put it on Chuck Todd’s podcast(5 minutes into the most recent episode).

The existing procedures for electing U.S. senators—partisan primaries followed by plurality-winner general elections—are impeding the Senate from being able to perform its constitutionally essential role of constraining presidential power. If senators were elected in a way that did not involve partisan primaries serving as a gatekeeper to the general election ballot, the Senate would be able to operate as an effective and constitutionally expected check on presidential power.

We know this because of secret ballot that Republican senators recently took to elect their Majority Leader. The MAGA movement made a strong push for Rick Scott, the candidate who was clearly signaling that he was the one who would be most loyal to Trump. But Scott finished last of the three candidates, and instead John Thune—seen as a non-MAGA traditionalist—prevailed.

Advice-and-consent votes, however, are not secret, and so while Republican senators were protected from being primaried in choosing Thune as Majority Leader, they are not similarly protected in their votes on Trump’s Cabinet nominees.

If the GOP senators find Trump’s nominations appropriate, that would be a one thing, and they should vote to confirm them. But there has been widespread reporting that many GOP senators—enough to sink the nominations, given the obvious unified opposition of Senate Democrats—find at least several of Trump’s nominees unacceptable. And yet if put to the test, they may fail to reject them simply because they cannot withstand the threat of being primaried by Trump’s supporters.

In sum, it could not be clearer that the Constitution’s institutional arrangements for protecting against an abusive presidency are being undermined by the nation’s electoral system, and unless the electoral system is changed, the country will continue to be in severe peril.

It must be acknowledged that America has had the same electoral system for decades, and yet the intense fear of being primaried is relatively new. Fifty years ago, no threat of being primaried prevented Barry Goldwater and other GOP senators from telling Richard Nixon that he could not survive impeachment because of Watergate.

But an electoral system that functions adequately at a time of low partisan polarization, as the early 1970s was, does not necessarily function adequately at a time of high partisan polarization, as currently exists. The electoral system did not cause the huge increase in polarization. Other factors did. But those factors—like the rise of social media or economic dislocation due to globalization—may be impossible to reverse or rectify. Instead, it may be essential to change the electoral system to restore the constitutional arrangement of checks and balances.

It cannot be overemphasized that the Senate’s failure to perform its constitutional role of checking presidential abuse is the greatest single reason why American democracy is in its current predicament. It was the Senate’s failure to convict Trump in his impeachment trial for his role in the January 6 insurrection that enabled Trump to return to power despite his previous effort to undermine American democracy. The Senate failed to convict Trump because too many GOP senators feared being primaried by Trump’s supporters—the same explanation for why the Senate may fail again to constrain Trump now that he will be back in power.

As you watch what unfolds in Trump’s second term, don’t lose sight of why we are in such trouble—the existing electoral system can no longer serve the nation’s needs and thus must be revised so that it that does.