Subcommittee Hearing on "Proposals for Electoral College Reform: H.J. Res. 28 and H.J.
September 4, 1997
2237 Rayburn House Office Building
Mr. Chairman: I would like to thank the Chairman and this Committee for the opportunity to testify on this arcane but important issue.
My name is Curtis Gans and I helped found and have for the last 21 years directed The Committee for the Study of the American Electorate, a small non-partisan, non-profit organization whose primary mission is to explore, explain and try to correct the increasing disinclination of the American citizen to participate in our democratic processes.
There appear to me to be two questions confronting this committee:
1. Should the indirect method of electing Presidents through a state-based electoral college be replaced by direct elections in which a simple plurality or majority of voters determine the winner? and
2. If not, could the present electoral college system be improved?
The answer to the first is an unequivocal, "No." The answer to the second is a qualified, "Yes."
The arguments for direct elections seem superficially to be clear and persuasive:
Should not every citizen's vote be equal and what better way to insure that equality than direct elections?
Should the nation not protect itself from the possibility of a President elected by a minority of those voting?
Should the our laws not recognize that a demagogue, in third party guise, could throw an election, under present Constitutional rules, into the House of Representatives and thus make a mockery of the ballots cast that November?
But while these arguments are powerful, they are not compelling. Let us examine begin the examination of why with two questions:
What do William J. Clinton (twice), John F. Kennedy, Harry S. Truman, Woodrow Wilson, Abraham Lincoln, Andrew Jackson and eight other American Presidents have in common?
The answer is that each received less than a majority of the votes cast in the election which elevated him into the White House?
What does every elected President, at least since 1824, have in common?
The answer is that none received a majority of the eligible adult population living at the time they were elected and most received less than two-fifths of that possible vote.
This nation and its political system has survived and one might say prospered despite the electoral college, despite several Presidents who did not get a majority of the votes cast, despite one (Rutherford B. Hayes) who was elected while receiving fewer votes than his opposition and despite the fact that no President, at least since 1824, has received a mandate of a majority of his fellow eligible citizens.
It is not at all clear that the Republic would survive as well in a system of direct elections.
The case for keeping the indirect approach to electing Presidents represented by the electoral college is not nearly so simple and clear as the case for direct elections, but it is, I believe, more persuasive and compelling.
It rests on five concepts: manipulation, grassroots engagement, pluralism, federalism and participation. A few words about each:
1. Manipulation: The central question in the creation of any system of election is its incentive structure -- what activities it encourages and what it does not. Arguably the worst thing that has happened in the modern era to the conduct of American politics is the coaxial cable and the free rein it has given political consultants to pollute our airwaves with attack ads every biennium -- driving up the cost of campaigns, driving voters both from the polls and increasingly from respect either of political leadership or the political process as a whole.
While even with the electoral college, increasingly the bulk of campaign resources are poured into televised political advertising, direct elections would insure that all monetary resources would be poured into such advertising. There would be virtually no incentive to try to mobilize constituencies, organize specific interests or devote any resources to such things as voter registration and education. The result of direct elections is that campaigns would be run on the basis of polling the gross number of likely voters across America and targeting television messages to their interests and views. Our election would, in essence, not be a contest between two putative Presidents, but rather between two would-be king-makers -- Squiers vs. Sipple -- in a race to the bottom to see who can do the better job of turning off the other's potential voters.
What we would have is a political system that combines the worst of network television with the worst of the modern campaign. Network television, as one may note, devotes three hours every evening to pursuing precisely the same audience with precisely the same unedifying fare of sit-coms, shoot-em-ups and disaster series aimed, so they believe, at capturing the biggest share of the widest possible audience. Which may, in turn, explain the decline in civic literacy and, more recently, in the age of cable and satellite, the decline in network viewership. Couple that with the unrelentingly demagogic negative tone of the political ad campaign and we have a recipe for not, in my friend Newt Minow's words, an intellectual "wasteland," but a political wasteland of citizens permanently tuned out to politics.
2. Grassroots engagement: The same incentives that would, under a direct election system, propel all campaign resources into television advertising would virtually eliminate any resources devoted to grassroots and citizen involvement. Under the electoral college, there is a strong incentive -- at least in some states -- for campaigns, interests and others to organize groups on the grassroots level because some of those groups may be determinative in winning state electoral votes. It is no secret that advocacy and organization among the elderly produced a Clinton electoral victory in Florida. It is in the Republican Party's interest to organize Christian conservatives in the south to offset the Democratic Party's advantage among African-Americans in the region.
But it is unlikely that were the nation the only base of votes that any campaign would find it cost-effective to devote any resources to organization and involvement and that, in turn, would undermine the already declining base of political participation and American pluralism.
3. Pluralism: The success of American democracy has rested, in part, on achieving a balance between the will and desires of the majority of Americans and recognizing the rights and needs of various minorities. The electoral college serves to protect the latter in national politics.
To take the most obvious example, the number of farmers in the United States has dwindled so precipitously that nationally they are no longer a serious numerical factor in electoral outcomes -- despite the fact that most of the food we have on our tables is due to their individual and collective effort. In a system of direct elections, their concerns could easily be ignored. But because their votes are critical to winning electoral votes in several mid-western and western states, their needs must be addressed, their views must be solicited, their allegiances must be competed for.
The needs and aspirations of America's African-American population could easily be ignored in a direct election. They comprise perhaps 12 percent of the eligible electorate. But in several Southern states, they account for nearly a majority of eligible citizens and they comprise a significant and, perhaps on occasions, pivotal minorities in several northern states. The electoral college insures, in national elections, that their views must be taken into account.
Union members, Christian fundamentalists, Latinos, rural denizens are but a few of the significant minorities whose views and needs might be ignored if campaigns were totally nationalized.
American governance -- and the durability of its laws --derives its strength, not from the one-time expression of a national will, but from the coalescence of disparate interests into consensus. Direct election promotes a national will. The electoral college is one of the instruments for forging coalition and consensus.
1. Participation: The undermining of both grassroots activity and pluralism -- mobilization and sub-party level engagement cannot but have a negative effect on participation. So too will the aggregation of votes solely on a national level.
In most analyses of this period when over the last 36 years we have had a nearly 25 percent decline in voting nationally and nearly 30 percent outside the south -- the longest and largest sustained slide in the nation's history -- one of the reasons has been the growing disbelief of citizens in the efficacy of their vote -- whether that votes will make any difference, both in election outcome and policy result.
In this age of intense polling, where the movement of national numbers in the Presidential horse-race is tracked more intensively and surely more publicly than the heartbeat and blood pressure of a patient in intensive care, it will become increasingly difficult for the citizen to see how his vote will make much difference in a national electorate in which the margins of victory are usually in the millions of votes. It is much more likely that a citizen will see, in most jurisdictions (the District of Columbia excepted), that the citizen might see his or her vote making a difference in the hundreds or thousands which determine the allocation of electoral votes in individual states. In a sense the existence of an electoral college enhances both the perception and reality of electoral competition, where direct elections acts in precisely the opposite direction.
5. Federalism: There were times, particularly in the 1960's, when those who supported segregation of the races tended to use the cover of state's rights to mask their desire to keep African-Americans in their place, when the structure of American federalism -- the diffusion of power between the national government and the states and localities -- was called into question.
More recently, however, there is a bi- or multi-partisan consensus that perhaps the idea of states and localities might be a good one -- that the administration of many programs is better handled at levels closer to the citizenry, that the states do serve as innovators and laboratories for useful, productive and, particularly in the cases of welfare reform and crime control, better public policy solutions than the national government can formulate.
In national politics, the instrumentality which forces consideration of federalism is the electoral college, mandating the gathering of votes by states, forcing the engagement of state leaders and party organizations and concern about state and local issues. We sacrifice that, I believe, to the detriment of the welfare of American democracy.
Supporters of direct elections usually cite polls to buttress their position -- polls which show a majority of Americans support direct elections. But I would venture to say that none of those polls raise the consequences of direct elections in the questions that are asked. Were the public asked not only whether they desired direct elections but whether they desired direct elections even if it meant campaigns only run on television, erosion of grassroots activity and pluralism, declining voter participation and the erosion of federalism, the results might be very different.
Our founding fathers may not have had the best reasons for adopting an indirect system for the election of Presidents. They had too much fear of and too little faith in the demos. But that system, with its various modifications over the years, has served this nation well and should not be replaced.
The second question -- could it be improved -- deserves a qualified, "Yes," because while it could be improved, it should not be replaced and, if tampering, leads to the idea of replacement then it should not be done.
On the other hand, there are three ways in which it can be improved:
We can and should eliminate the human elector. We have had faithless electors in the past -- people who were elected to cast their ballots in the electoral college on behalf of a Presidential candidate who cast their vote for someone else. These have been, over the years, protest votes which had no bearing on the outcome of the electoral college tally. But while it has never happened and may never happen, there remains the possibility of a close electoral college vote in which one or a few electors casting ballots against the wishes of the electorate can vitiate the popular result in a state and nationally and undermine public faith in American democracy. An Amendment which would eliminate the human elector in favor of the counting of state electoral votes would be desirable.
The staff of this committee raised, during preparation of this testimony, an interesting question -- how does one deal with the succession question should someone be putatively elected in the November election but die before the electors cast their ballots? While this is, again, not a likely occurrence, it is something which should taken account of in law or in the amending process to the Constitution. The staff suggested that the risk of this occurrence might be mitigated by setting an earlier date certain for the electoral college votes to be counted. And while this might be helpful, we also face, in the present electoral context, some limitations to how far toward election day this vote can be held. We now have a situation in which 50 percent of the votes in certain western states are cast by absentee ballots and counted after the election. By my experience and accurate count of those ballots tends to take at least a week, and, should the tally be close in some of those states, the certification of the ballot count may take some considerable additional time.
Which is to suggest that while it might be desirable to address this statutorily, the safer method may be through amendment that establishes succession to the Vice-President-elect and down the line.
The final change can be accomplished statutorily and in the several states. It is not likely to happen soon because of its partisan implications and -- in its sponsorship both in the 1960's by the late Sen. Karl Mundt and more recently by a number of Democrats -- the partisan motivations of some of its sponsors. But the present method of choosing electors could be improved if every state adopted what Maine and Nebraska already have in place -- a system in which the selection of electors of every state would be divided. The present electoral college allocates electors to each state on the basis of their apportioned Congressional representation. Each state has two electors for the two Senators each has and additional electors for the number of Representatives each has.
What Maine and Nebraska do is elect the two electors (or choose the electoral vote) representing the two Senators by statewide vote and elect their remaining electors by Congressional district.
This plan has several virtues:
1. It would likely, although not certainly, produce an electoral tally closer to the popular vote than the current statewide system.
2. It would certainly make the individual's vote seem more instrumental in electing the one elector which represents his or her Congressional district.
3. It would placed an additional incentive towards grassroots activity and organizational engagement in garnering the electoral vote retail -- by district -- rather than wholesale by state.
4. It would end the tendency of parties and campaigns to abandon states and regions when a candidacy is seen as hopelessly behind in the state or region because there would be small amounts of electoral votes to be won.
5. It would further reduce the tendency to rely solely on televised advertising as the means to communicate, mobilize and demobilize voters, because as the competitive playing field becomes smaller, the benefits of television are reduced.
6. It would have the effect of strengthening the parties, by allowing some candidates to run with (rather than against) their party's position on issues in states where those positions might be anathema on a state-wide basis.
7. It would enhance American pluralism by making the votes of significant minorities more instrumental in the overall outcome.
8. And it would have the important, if minor, additional benefit of making it virtually impossible for the television networks to continue their practice of declaring election winners while people are still voting, thus ending the practice of turning away voters in the west and, perhaps, influencing electoral outcomes in races below the level of President.
This plan will not be adopted soon because of its partisan implications. When Sen. Mundt first proposed it, it was with the intent of breaking the virtual Democratic lock on Southern electoral votes. Some Democrats are proposing it for the same reason in light of the pro-Republican realignment of that region.
But these alignments, as the recent trend shows, are not necessarily permanent, and the larger question of how we perfect a system of elections which enhances our democracy in this age -- by reducing the power of television, increasing the incentives to engagement and pluralism, promoting greater active citizen participation and strengthening our political parties -- is something which should be addressed.
In some small, but not unimportant way, this particular revision of the electoral college system would do just that and I would urge its consideration in this Committee's recommendations, partisan concerns notwithstanding.
Thank you again for this opportunity.