Subcommittee Hearing on "Proposals for Electoral College Reform: H.J. Res. 28 and H.J.
September 4, 1997
2237 Rayburn House Office Building
Thank you, Mr. Chair. My name is Akhil Reed Amar. I teach Constitutional Law at Yale Law School, where I currently hold the Southmayd Chair. It is a great privilege to be here today to discuss proposals for electoral college reform.
I consider the so-called electoral college a brilliant eighteenth century device that cleverly solved a cluster of eighteenth century problems. But as we approach the twenty-first century, we confront a different cluster of problems, and our constitutional machinery of presidential selection does not look so brilliant. Is it possible that today, this once-brilliant device has become a constitutional accident waiting to happen?
In asking this question, I am aware that we must be extremely careful about constitutional amendments; and that the current system seems to have functioned tolerably well. But a car with a defective air bag might seem to run quite well until there's a collision--should a prudent owner wait until after the collision to fix the flaw? Of course not--the time to act is before the accident. And this, I submit, has been our unfolding constitutional tradition on the vital issue of who shall occupy the Oval Office. Of the 15 Amendments proposed and ratified after 1800, no fewer than 5 have directly adjusted the original electoral college system, and 4 more have indirectly modified the system by federalizing the right to vote in presidential elections. Had we rejected all reforms of the original system, political parties would have had trouble evolving the current ticket system; residents of this city would remain constitutionally expelled from the electoral college; and blacks, women and young adults would have no federal constitutional right to vote for President on equal terms with everybody else.
Let us, then, turn to the logic that gave birth to the electoral college 200 years ago, and consider whether this logic still holds. The Framers emphatically did not want a President dependent on the legislature, so they rejected a parliamentary model in which the legislature would pick its own leader as prime minister and chief executive officer. How, then, to pick the President? The visionary James Wilson proposed direct national popular election, but the scheme was deemed unworkable for three reasons. First, very few candidates would have truly continental reputations among ordinary citizens; ordinary folk across the vast continent would not have enough good information to choose intelligently among national figures. Second, a populist Presidency was seen as dangerous--inviting demagoguery and possibly dictatorship as one man claimed to embody the Voice of the American People. Third, national election would upset a careful balance of power among states. Since the South didn't let blacks vote, southern voices would count less in a direct national election. A state could increase its clout by recklessly extending its franchise--for example, if (heaven forbid!) a state let women vote, it could double its weight in a direct national election. Under the electoral college system, by contrast, a state could get a fixed number of electoral votes whether its franchise was broad or narrow--indeed, whether or not it let ordinary voters pick electors.
None of these arguments works today. Improvements in communications technology, and the rise of political parties, make possible direct election and a populist Presidency--de facto, that is our scheme today. Blacks and women are no longer selectively disenfranchised, and states no longer play leading roles in defining the electorate or in deciding whether to give the voters a direct voice in choosing electors. Direct national election would encourage states to encourage voters to vote on Election Day; but today, this hardly seems a strong reason to oppose direct election.
Ingenious, indirect, sophisticated arguments made on behalf of the electoral college by clever theorists these days are legion--but almost all are make-weight: If the scheme is so good, why doesn't any U.S. state, or any foreign nation, copy it? A low plurality winner in a three- or four-way race is possible even with the electoral college; and could be avoided in a direct national election by single transferable voting (with voters listing their 2nd and 3rd choices on the ballot, in effect combining the "first heat" and "run off" elections into a single transaction). Alternatively, a runoff election could be held on a separate day, as envisioned by the Lahood and Campbell proposals now before this subcommittee.
The only two real arguments against abolition of the electoral college sound in federalism and inertia. Only federalism can explain why we should use an electoral college to pick Presidents but not governors. But it's hard to see what the federalism argument is, today. The specter of the national government administering a national election, I confess, does not give me the cold sweats. A razor-thin popular vote margin might occasion a national recount, but states now manage recounts all the time, and new technology will make counting and recounting much easier in the future. (And today, a razor-thin electoral college margin may reuire recounts in a number of closely contested states even if there is a clear national popular winner.)
Inertial, Burkean, arguments take two forms. First, the argument goes, a change in
presidential selection rules would radically change the game in ways hard to foresee. Candidates
wouldn't care about winning states--only votes--and campaign strategies might change
dramatically and for the worse. But it's hard to see why; given that, historically, the electoral
college leader has also tended to be the popular vote leader, the strategy for winning shouldn't
change dramatically if we switch from one measure to the other. This sets up the second inertial
point. The dreaded specter of a clear popular loser becoming the electoral college winner hasn't
happened in this century: "Why worry?" But that's what someone might say after three trigger
pulls in Russian Roulette. One day, we will end up with a clear Loser President--clear beyond
any quibbles about uncertain ballots. And the question is, will this Loser/Winner be seen as
legitimate at home and abroad? If our modern national democratic ethos, when focused on the
thing, would balk at a byzantine system that defies the people's choice on election day, true
Burkean theory would seem to argue against the electoral college. If We the People would want
to amend the Constitution after the Loser President materializes--and I tend to think we
would--why are we now just waiting for the inevitable accident to happen?