Subcommittee Hearing on "Proposals for Electoral College Reform: H.J. Res. 28 and H.J.
September 4, 1997
2237 Rayburn House Office Building
Critics of the electoral vote system believe that the principle of democratic legitimacy is numbers alone, and therefore they think the system is indefensible on the contrary, the electoral vote system is a paradigm--the very model--of the American democracy, and thus is quite easy to defend. For all practical purposes it is a direct popular federal election. (The Electors are mere ciphers, and the office of elector, but not the electoral votes, can be abolished.) The critics' principle of democratic legitimacy is inadequate because it is apolitical and anti-federal. Logically it boils down to: the majority must win and the minority must lose no matter what they lose. It is a formula for majority tyranny. But majority rule is not the principle of our Constitution. Rather it is majority rule with minority consent. The critics, however, think that because the system does not follow an arithmetical model it may produce the "wrong" winner. In fact, I contend, because it is federal it produces the right winner.
The following passage from my recent book, The Choice of the People? Debating the Electoral College explains my point.
Politics and mathematics are two very different disciplines. Mathematics seeks accuracy, politics seeks harmony. in mathematics an incorrect count loses all value once it is shown to be wrong. In politics even though some people are out-voted they still have value and must be respected in defeat. Efforts must be made to be considerate and even generous to those who lost the vote, to make then feel they are part of the community, for if they feel alienated they nay riot in the streets. Further, mathematical questions, like those in all the sciences, deal with truth and falsehood. But politics is an art, not a science. Political questions do not deal primarily with truth and falsehood, but with good and bad. We do not ask whether a political decision on war or taxation or welfare or agricultural subsidies is true. We ask, is the policy good f or the country? And, will it actually achieve its purpose?
Those who conf use politics and mathematics, the head counters, operate on an unstated assumption that the will of the people is out there like some unsurveyed land, and all we need do is send out the surveyors with accurately calibrated instruments to record what is there . They also assume that our democratic republic is a ship without a specific destination. Whatever most of the people want, most of the people must get, and the minority be damned. Mathematical accuracy being their sole criterion f or legitimacy, they make a great fuss about politically imposed devices, intermediary institutions like the electoral vote system with its federal principle and its winner-take-all rule. From their perspective, such majority building and structuring devices complicate their self-assigned task, distort the accuracy of their count and possibly produce the "wrong" result.
If their assumptions were correct they would have a point. But their assumptions are false. Ours is a ship of state bound for a port called Liberty. on such a ship majority rule doesn't suffice without the consent of the minority. Their assumption about the will of the people is particularly false in this vast and varied country, in a continental republic populated by a-people who do not share a common religion, race, or ethnic heritage, in a commercial republic populated by people with diverse and competing economic interests. In such a country the will of the people and the will of the majority can be two very different things. Therefore, the will of the people --that one thing which all can share, which is the goal of liberty for all--must be constructed and periodically reconstructed. This requires a political, not a mathematical process.
In this country, it requires a federal political process. The federal principle is one of the two fundamental structural principles of our Constitution (the other being the separation of powers). The proposals to abolish the electoral college are proposals to abolish the federal principle in presidential elections. All of our national elective offices are based on the federal principle--they are state based elections f or we are a nation of states. Thus our national motto: E Pluribus Unum.
The federal principle in presidential elections forces presidential candidates to build broad cross-national political coalitions. Thereby it produces presidents who can govern because of their broad cross-national support. In politics as well as in physics there is such a thing as a critical mass. In presidential elections numbers of votes are necessary but not sufficient. To create the critical mass necessary for a president to govern, his votes must be properly distributed. This means he must win states and win states in more than one region of the country.
Under the federal presidential election system, a successful candidate can't simply promise everything to one section of the country and neglect the others. Analogy: Why are professional football teams required to win games in order to get into the playoffs and win the Super Bowl? Why not simply select the teams that scored the most points during the regular season? Any football fan can tell you why. Such a process wouldn't produce the right winner. Teams would run up the score against their weakest opponents, and the best teams in the most competitive divisions would have the least chance to get into the playoffs. Such a system isn't the proper test of the team talent and ability. A nonfederal election is not a proper test of support for the president.
It we abandon the federal principle in presidential elections we will be abandoning a national consensus building device by allowing candidates to promise everything to the populous Eastern megalopolis, or to promise everything to white Christians, or to suburbanites who are now half of all the voters. These are formulas for inability to govern or even civil war. And a system, like direct popular election, based on raw unstructured numbers alone rather than on the structuring federal principle, would effectively reduce the influence of minorities who often are the swing votes in closely divided states--groups like farmers who are only 2 percent of national population or blacks who are only 12 percent.
We need to remember that when we change the rules, we change the game and the game strategy and the skills needed to win. Under the federal principle successful candidates must have consensus building skills. The goal of politics in this country is harmony-majority rule with minority consent. But when and why would a minority consent to majority rule? The answer is only if the minority can see that on some occasions and on some vital issues it can be part of the majority. It is irrational to consent to a game in which you can never win anything at all. To gain minority consent the Framers created many devices to allow minorities to be part of the ininority, devices that give minorities more influence than their raw numbers would warrant including the state equality principle for representation in the Senate and the state distracting principle for the House of Representatives. (The majority party in the House is often "over-represented" if our -measure is raw numbers of votes nationally aggregated.) Then, of course,, there is the state equality principle in voting on constitutional amendments. And there is the three-fourths requirement for passage of amendments. Such devices are designed to give minorities an inf luential voice in def ining the national interest. The president is a major player in defining the national interest, and theref ore it is necessary that the presidency be subjected to the moderating inf luence of a federal election system.
An equally important outcome of a state based election system is that it serves to balance local and national interests- It is not just racial, religious, ethnic or occupational minorities that must be protected, there are local minorities whose consent must be sought; The people in small states must be protected against misuse of the phrase "the national interest" My favorite example is the problem of nuclear waste which none of us want in our backyards-not in my state. The rest of us can outvote Utah--so let's turn Utah into our national nuclear waste dump. This is majority tyranny in action. Nuclear waste is a national problem and the burden of solving it should not be placed on the people of one state without their consent. Since the president is a major player in making national policy, it is just as important that he be sensitive to balancing national and local interests, and the federal election system is designed to make it so. The right winner is a presidential candidate who recognizes the necessity and often the justice in balancing national and local interests. As Jefferson said, "the will of the majority to be rightful must be reasonable." The federal principle even and especially in presidential elections is a de-jice for building reasonable majorities.
The opponents of the electoral vote system are head counters who confuse an election with a census. In a census our goal is mere accuracy. We want to know how many people are married or divorced, or have incomes over or under $20,000, or are Catholic or Protestant etc. In short, we want to break down the population into its multiple individual parts. In an election, especially a presidential election, we want to bring the people together. We want to build consensus, to build the support necessary and sufficient for our president to govern.
The proponents of direct national election think their system solves problems, but in fact it creates problems that are addressed or avoided by the federal election system. Presidential elections have multiple goals. Obviously we want to fill the office with someone who can govern, but we also want a-swift, sure decision, and'we want to reduce the premium on fraud, and most of us want to support the two party system--a major source of national stability and a consensus, coalition bailding system.
From this perspective, the current system has been very successful. Since 1836 with the almost universal adoption of the state unit rule, awarding all of a state's electoral votes to the winner of the popular plurality, we have had never had a contingency election. That's a proven record of 160 years. And we know the reason why: the magnifier effect of the state unit rule, a.k.a. the winner-take-all system. The victor in the popular vote contest for president will have a higher percentage of -the elect-oral vote. The Magnifier effect does not exaggerate the mandate--populdr vote percentages are widely reported, not electoral vote percentages. The magnifier effect is not like a fisherman's story in which the size of the fish grows with the telling. Rather it is like the strong fishing line that serves to bring the fish, whatever its size, safely to shore. It supports the moderate two-party system, and balances national and state interests. And it makes the general election the only election.
Of course, there would be no magnifier effect under direct non-federal election, and the result is that contingency elections would become the rule. Under one proposal there would be a national run off if no candidate received 50 percent of the popular vote. This provision would turn the general election into a national primary, prolif erate candidacies and weaken or destroy the two- party system. It would also increase the potential for.fraud and result in contested general elections with every ballot box in the United States having to be reopened and recounted under court supervision. Even the Left-handed Vegetarians Party could bring a court challenge because 1 percent or less of the popular vote could trigger a runoff election. And there would be a reason to challenge. In a runoff election even candidates who are not in the contest can win something by making a deal with one of the remaining two in return for support in the runoff. Not only would this mean an extended period of uncertainty about who the president will be--a temptation to foreign enemies, but also little time for the orderly transfer of power.
Most proponents of direct election, recognizing that to require a majority of the popular votes would produce these problems, suggest a 40 percent instead of a 50 percent runoff rule. The fact that most supporters of direct election are willing to make this concession indicates the seriousness of the problems attending contingency elections. This is a compromise of their principle--the arithmetical majority principle . Logically, on their principle, whenever no one polls 50 percent plus one vote there should be a runoff election.
And 40 percent is not a magical figure. It could be 42 or 44% with similar result--frequent runoffs. It is true that only one president, Lincoln, (who was not on the ballot in 10 states) failed to reach-the 40 percent plurality figure. However,.history under the current system cannot be used to support the 40 percent figure because when you change the rules you change the game. Under the current rules we have had 17 minority presidential terms-presidents who came to the office with less than 50 percent of the popular vote. The last two are.Clinton's terms. The list includes some of our best presidents, not only Lincoln, but also Wilson (twice), Polk and Truman. Seventeen minority presidential terms out of 42 presidents! The unit rule magnified their popular pluralities into electoral vote majorities because they won states.
But under direct nohfederal election there would be no magnifier effect. Potential candidates would recognize that multiple entries would be likely to trigger a runoff wherein one losing candidate could win a veto promise, another a Supreme Court nomination and a third a special interest subsidy in return for an endorsement in the runoff. And there is no reason to believe all such deals would be struck in the open . There would be no incentive for coalition building prior to the general election. The two major national parties would lose all control over the presidential nomination process--their life blood. Factional candidates, single issue candidates, extremist candidates would serve as spoilers. As one commentator noted, on the day prior to the election, the New York Times would have to publish a twenty page supplement simply to identify all the candidates.
Add to this the second chance psychology that would infect voters, and you have the formula for a national ordeal. Second chance psychology arises from the recognition that a popular vote runoff is a real possibility. Many a voter, thinking he will have another chance to vote in a runoff, will use his general election vote to protest something or other--to send a message.
Recounts would be demanded not only to determine who won, but also whether any candidate actually polled the 40% minimum, and if not which two candidates would be in the runoff - Under the unit rule magnifier effect which discourages multiple candidacies, we have already had five elections in which the popular vote margin was less than one percent. In the 1880 election the margin was one tenth of one percent. If such could happen under the current system where it is unlikely to trigger a runoff, it surely will happen under a 40 percent rule with a hair trigger runoff system. Weeks or months could pass with the outcome in doubt. One candidate could claim victory and start naming his cabinet only to be told some weeks later that he would have to participate in a runoff.
Further, the electorate wearies of prolonged elections. Even in the sports world players as well as tans reach a point where they want an end to it, and so accept sudden death rules. It is so important to fill the office on a timely basis that we have even had one president, Gerald Ford, who was not confirmed by a national election. Ford succeeded to the office on the resignation of his predecessor, Richard Nixon, but unlike vice presidents who had succeeded before him, he had been nominated by Nixon and confirmed by congressional vote under the provisions for filling vice presidential vacancies in the Twenty-fifth Amendment.
No election system is perfect, but the current system has borne the test of time- It has never rejected the winner of a popular vote majority. In every case but one it gave the victory to the winner of the popular plurality. And that one case proves the rule. Cleveland, who lost in the electoral vote, won the popular vote while running a sectional campaign. He did not seek to broaden his support; he focused his message on one section of the country. Unintentionally, he thereby sent a message about the current system to all future presidential candidates: Remember 1888! Don't run a sectional campaign! Further, he won the popular vote by only eight tenths of one percent! This was an election that verged on a tie. Since a timely decision is so important, a reasonable tie breaker is the win states federal principle.
The proposed amendments would deform not reform the Constitution. it is not just the presidency that is at risk here if the federal principle is illegitimate in presidential elections, why isn't it illegitimate for Senate and House elections? Why should a state with half a million people have the same representation in the Senate as a state with twenty million people? Why should every state have at least one representative in the House? Why shouldn't states with very small populations have to share a representative with folks in another state? And why should each state regardless of its population size have an equal vote on constitutional amendments? The Framers knew the answer to these questions--the federal principle. It is true that the electoral vote system did not work out in precisely the fashion that the Framers anticipated, but it did evolve in conformity to the federal principle and the separation of powers- I have no doubt that they would recognize this if they were here today. It evolved in conformity with the federal spirit of the constitution, the "great discovery," the Framers themselves made.
For this, let us turn to Alexis de Tocqueville, who commenting on the federal principle in the Constitution, called it "a wholly novel theory, which may be considered as a great discovery in modern political science." He goes on to explain that combines the best of both worlds. He says that its advantage is to unite the benefits and avoid the weaknesses of small and large societies. He learned this not only from observation, but also from reading James Madison in Federalist 39, who said that our form of government "is, in strictness, neither a national nor a federal Constitution, but a combination of both."
Madison"s word "combination" is the key. The federal principle is a "great discovery",
because it is a combination like an alloy--my term not his. We create alloys
because we want to combine the
copper and zinc to create brass because brass is harder, more malleable and more ductile than
We create steel alloys for the same reason. The federal system is an alloy. It not only makes us
strong as a nation, it also allows us to be diverse and flexible, to experiment. It thereby increases
our.freedom without destroying, our national unity. Tocqueville was right; it was a "great
of modern political science. Let us preserve it.