by Watson Scott Swail, Ed.D., President & Senior Research Scientist, Educational Policy Institute
Well, it was quite a week here in the United States. The midterms were certainly not a sleepy affair, although I woke up at 3:30 p.m. to find that there had been a seismic shift in Congress. I’m not sure if any of us really saw the scope of the election to that level, although a few pollsters had nodded that way.
I’m not a big fan of political commentary on The Swail Letter, although it does happen from time to time. Still, I would like to use this opportunity to point out a few things Congress could do—or pursue through constitutional amendments—to improve our political, governmental, and judicial systems. I don’t expect Congress to pursue many of these changes, but I think they are worth considering. If we have learned anything, it is that Congress should use its existing authority to check presidential power—and pursue stronger safeguards where necessary.
1. Define Age Limits for Elected Officials and Federal Judges. Require elected representatives, federal judges, and Supreme Court justices to leave office on their 75th birthday. Under my proposal, candidates would be no older than 72 when running for a House seat and no older than 68 when running for a Senate seat, with eligibility tied to whether they could complete a full term before turning 75. For members of Congress, adding an age ceiling would require a constitutional amendment. Mandatory retirement for Article III judges would also raise constitutional issues because they hold office during good behavior; a constitutional amendment would provide a firmer legal foundation.
Continuing with the Supreme Court, I would add four justices through a bipartisan process designed to prevent the governing party from gaming the system, with the aim of helping the Court manage its workload. Congress can change the Court’s size by legislation. I would also limit service on the Court to a maximum of 20 years and establish a rolling nomination system with regular appointments every two years, regardless of who is in the White House. The Court’s size, term limits, and appointment schedule would need to be reconciled in a workable transition plan. Finally, I would require support from 75 percent of the Senate to confirm a justice. In 2017, the Republican-led Senate used the “nuclear option” to lower the threshold for ending debate on Supreme Court nominations from three-fifths of senators—normally 60 votes—to a simple majority. The final confirmation vote already required only a simple majority; the change concerned cloture, not confirmation itself. Raise the bar and encourage the Senate to be less partisan.
2. Address the Flawed Political Funding System. Explore state laws that restrict corporations’ authority to spend money to influence elections. Oregon reformers have proposed a corporate-spending ban for the 2028 ballot; it was not a law adopted during these midterms. Separately, Oregon’s legislature enacted contribution limits in 2024 and revised them in 2026, with key limits scheduled to take effect on January 1, 2027. I would support testing stronger restrictions, including limits on the ability of companies that fund political campaigns to do business in a state. But that approach would face serious First Amendment challenges, and its legality should not be treated as settled.
3. Eliminate Super PACs. Super PACs may accept unlimited contributions from permitted sources to fund independent political spending, but they cannot contribute directly to federal candidates or coordinate that spending with their campaigns. They are subject to donor-disclosure requirements, although donations routed through certain nonprofits can obscure the original source of the money. I would limit political donations to individual giving subject to contribution limits and close these transparency gaps. Eliminating Super PACs would require addressing the court rulings that protect independent political spending, not simply passing an ordinary ban.
4. Regulate Political Advertisements. Create stronger safeguards against false or deceptive political advertising, including ads on social media. People may believe what they see and hear, even when it is flatly incorrect. Ideally, I would like an independent, nonpartisan board to review factual claims before ads air. But this is not simply a matter of adopting commercial truth-in-advertising standards: political speech receives strong First Amendment protection, and federal law prohibits broadcasters from censoring qualifying candidate-sponsored ads. A government preapproval system or a blanket ban on attack ads would therefore face substantial legal obstacles. More transparent sponsorship, independent fact-checking, and voluntary commitments to focus on candidates’ own policies could help. Difficult? Certainly. But that doesn’t mean we shouldn’t pursue legally sound ways to improve accountability.
5. Curtail the Use of Executive Orders. In my view, the current president’s use of executive orders illustrates why stronger safeguards are needed. Other presidents, including Democrats, have also used them imprudently. Executive orders generally do not require advance congressional approval, but they are not beyond oversight: they must rest on constitutional or statutory authority and are subject to judicial review. Congress also has oversight and legislative tools to check executive action. Congress should use those tools more consistently and define delegated powers more carefully.
6. Limit the Use of Presidential Pardons. Similarly, I believe presidents have used pardons imprudently in the past. There should be clearer guidelines and perhaps a nonpartisan board to review clemency requests. However, the president’s pardon power comes directly from the Constitution, and the existing Justice Department review process is advisory. A new board could make recommendations, but giving it binding authority to block pardons—or otherwise substantively restricting the president’s power—would require a constitutional amendment rather than ordinary legislation.
7. Require Debt Oversight. Strengthen oversight of federal borrowing and the long-term effects of tax and spending decisions. Congress already has a central role, but I believe it should exercise that responsibility more rigorously. It is misleading to attribute a fixed share of the national debt solely to one president: debt reflects legislation passed by Congress as well as executive actions, and it is also affected by inherited commitments, economic conditions, and interest costs. I would require clearer public reporting on the fiscal consequences of decisions made by both Congress and the administration. There needs to be another lever to make sure political convenience does not override fiscal accountability.
8. Gerrymandering Oversight. Create stronger federal standards and oversight for congressional redistricting. While states draw their district boundaries, we have seen how that process can be used for partisan gain. Require consistent timelines, transparent procedures, and clear principles for fair maps. I would also consider reducing relevant federal funding for noncompliance, but any such conditions would need to be clearly stated, related to the funded program, and noncoercive. The goal should be enforceable standards that protect voters rather than reward whichever party controls the process.
9. Regulate Changes in Government Structure. Enforce Congress’s role in creating and abolishing federal departments, including the U.S. Department of Education. The president cannot unilaterally abolish the department, but the administration has reduced its workforce and moved programs and personnel through interagency agreements, effectively setting the stage for shutdown, which included even moving the Department out of its 400 Maryland Avenue building. Some lawmakers have challenged these actions and pursued oversight, but I would like to see Congress do more. Congress should ensure that administrative changes do not circumvent departments’ statutory responsibilities. Creating a new Cabinet department should likewise require legislation, rather than unilateral presidential action.
10. Protect National Landmarks. Create stronger safeguards against sweeping changes to nationally significant buildings and cultural institutions, such as the White House and the Kennedy Center, without transparent, independent review. The Committee for the Preservation of the White House is an advisory body concerned with the White House’s museum character, public rooms, and collections, not a general approval board for every construction project. The ballroom project has prompted litigation over whether the administration bypassed required reviews and congressional authorization; a Supreme Court order allowing construction to proceed did not resolve the project’s underlying legality. I would support a clearer, nonpartisan approval process for major changes to these public treasures. The same can be stated for sweeping changes to our national parks over the years. Some changes can be good, but they need to go through the proper processes.
There are surely dozens of other suggestions that could be considered by Congress. Please let us know what you think.
