SECURING
DEMOCRACY : I N T R O D U C T I O N
By Senator Mitch McConnell
During the debate over the ratification of the Constitution, Alexander Hamilton began Federalist 68 by remarking that the constitutional system for electing the president "is almost the only part of the system, of any consequence, which has escaped without severe censure or which has received the slightest mark of approbation from its opponents." How things would change! Since the earliest days of the Republic, opponents have raised their scorn against the Electoral College. President Andrew Jackson famously called for its abolition as early as the 1820s, and its opponents have only grown more strident as we have drifted in time and memory from the Founding generation.
Weeks before the American people went to the polls last November, voices were raised against the Electoral College on op-ed pages all over the nation. When the election bogged down near the swamps of Florida during the early morning hours of November 8, one could almost hear the challenges becoming more shrill and sustained. Within a few days after the election, several prominent political leaders joined the call to sweep away our method of electing presidents.
The bonds of our union were tested in the aftermath of the Florida voting. Many Republicans found the process of deciphering dimpled and pregnant chads to be a violation of the rule of law. Democrats fought for continued recounts. African-American leaders charged that myriad election-day frauds had been perpetrated against black voters. The court battles in Florida and Washington that eventually brought an end to the weeks of suspense left no one truly satisfied. The process tested us, but it did not break our union, and soon our political life returned to normal with a new president and the peaceful transference of power. America is truly a resilient nation.
Whatever may have gone wrong in the Florida voting and its aftermath, we know two things for certain. First, the American people know more about the Electoral College than they did before. History and government classes discussed its intricacies with a renewed sense of its importance. Citizens who had never before thought about our constitutional processes now found themselves confronted with a system that must have seemed almost alien to most of them. This was a positive result; it is always good to encourage the American people to learn more about the constitutional order upon which our current freedom and prosperity have been built.
Immediately following the election, at least one poll showed that more than sixty percent of the American people supported a constitutional amendment to replace the Electoral College with a direct national election for president. These Americans were apparently in agreement with those politicians, intellectuals, and journalists who argued that the election had provided fresh evidence of major problems with our electoral process.
But far from being evidence of problems inherent in the Electoral College, the College is the only thing that kept us from an even worse national nightmare. Yes, the recount process and court battles in Florida were excruciating to watch and dragged on far too long. But can you imagine the situation without the Electoral College? What if we would have instituted, as so many have urged upon us, a direct national election? The difference between Al Gore and George W. Bush in the national popular vote was about 500,000 (less than that, even, in the first few days after the election). That is a difference of less than .5% of the votes cast. A few thousand votes here and a few thousand votes there could have changed that election result. The Electoral College served to center the post-election battles in Florida. Without it, I fully expect we would have seen vote recounts and court battles in nearly every state of the Union. Can you imagine the problems in Florida multiplied 10, 25, or even 50 times? Rather than being an argument against the Electoral College, the 2000 election was a strong and forceful warning against its abolition.
About the time I graduated from law school in 1967, a distinguished commission of the American Bar Association recommended that the Electoral College be abolished. Like the critics of the current hour, they wanted to replace it with a direct national election for president. What if—as is almost assured to occur in such a system, because of its encouragement of third parties—no candidate succeeded in earning a majority of the votes cast? If no candidate received at least 40 percent of the vote, said the commission, there would be a second election, a run-off election, among the top candidates. Just imagine going through two presidential elections every four years instead of just one!
The commission's proposal passed the House of Representatives in 1969, nearly passed the Senate in 1970, and was later endorsed by President Jimmy Carter. At the time I was fresh out of law school and working as a young legislative assistant to Senator Marlow Cook, who had me doing staff work in favor of abolishing the Electoral College. But the more I read and the more debates I listened to, the more convinced I became that Sam Ervin, the Democratic senator from North Carolina who was a principle defender of the Electoral College, was right and we were wrong. We can all be thankful that cooler heads prevailed at that hour.
However, that same ABA proposal continues to raise its head from time to time in Washington and on the op-ed pages. The ABA commission attacked our presidential election system as "archaic, undemocratic, complex, ambiguous, indirect, and dangerous." We heard the same charges again following the 2000 election. (As a lawyer, I have always found it ironic that a national group of legal professionals would dismiss anything for being old, complex, and not easily understood.) The essays that are contained in this book do a good job of dealing with these charges, and they also point us to those many positive aspects of the Electoral College that have heretofore either been ignored or gone unrecognized by its opponents. But before discussing the arguments found in the rest of this book, it is good to remind ourselves of exactly how the Electoral College system actually works in today's politics.
THE ELECTORAL COLLEGE TODAY
Electors are distributed to the states in the exact proportion that those states are represented in Congress. Each state gets the equivalent of its membership in the House of Representatives, which is based on population, plus its two senators, which are distributed to the states as autonomous and equal political entities. My state of Kentucky now has eight votes in the Electoral College—six representing our six seats in the House and two additional votes representing our membership in the Senate.
This method of vote distribution is the origin of the Electoral College bias that strengthens the influence of the smaller and more rural states; that is, every state is to some extent treated as an equal and autonomous political community because a portion of every state's votes represent its Senate representation, which is the same for California and Connecticut, Texas and Delaware. This is also the reason that one candidate can win the popular vote and another win the Electoral College vote, which of course is what happened in 2000. Al Gore won large majorities in urban areas of the Northeast and California, while George W. Bush won the votes of the South, Midwest, and Mountain West.
Al Gore, my old colleague in the Senate, finished with about 500,000 more votes than did George W. Bush. As we watched the results coming in on election night, however, it was clear that Bush was winning the popular vote all night as the polls closed from time zone to time zone—until we hit the West Coast. Gore picked up more than a million more votes in California than did Bush, and those votes are what put him ahead of Bush in the popular vote nationally. The electoral bias in favor of the smaller and more rural states, however, gave George W. Bush the presidency. One analysis even showed that Bush won areas with a landmass of more than 2.4 million square miles, while Gore garnered winning margins in areas with a landmass of just over 580,000. The men who created the Electoral College would have well understood this situation.
This is how we run our presidential elections. They are state-by-state battles to accumulate a majority in the Electoral College. To say that one candidate won the popular vote and another won the vote of the Electoral College misses the point. Neither in 2000 nor at any other time in American history has the goal of a presidential race been to win the national popular vote. If that were the goal, the electoral strategies of both candidates would have been very different. In efforts to maximize their raw vote totals, you would have seen George W. Bush spending much of his time in his own state of Texas, while Al Gore would have camped out in California. Their campaigns would have been different and the results would have been different. But that is not our system, and unless the Constitution is amended, it is not fair to overlay it with expectations and evaluations alien to that system.
When our citizens go to vote, they are technically not voting directly for president. Rather, they are voting for a slate of electors who are pledged to vote for a particular presidential candidate. In Kentucky last year, more of my fellow citizens and I voted for George W. Bush for president than voted for Al Gore, and so the eight electors who had pledged their support for Bush were chosen to cast their votes for us in the Electoral College. As in every state except Maine and Nebraska, Kentucky gives its votes in a "winner-take-all" system. Bush won the majority of the popular votes and so won all the Electoral College votes from the state. This was what was at stake in the Florida recounts (or "revotes," as some of us saw it). The winner of the popular vote in Florida, even if by only a few hundred votes out of the millions cast, would win all 25 of the state's electoral votes and therefore the presidency.
These electors, who tend to be party activists and loyal supporters of the presidential candidate in their state, meet in their state capitals several weeks after the election. There they cast two ballots—one for president and one for vice president. Those ballots are then sealed and sent to Congress to be opened and counted in January. Are these electors free to vote for whomever they wish? The simple answer is, yes. Though many states technically require them to vote as they have pledged, some do not have penalties attached to that mandate, and it is not quite clear that these requirements, if tested, could meet constitutional muster. After all, the Founders intended to leave these electors free to use their own best judgment, so could they now be legally bound without a constitutional amendment? There have been a few of what we have come to call "faithless electors" in American history, but none of them have ever really even come close to changing the outcome of an election. Last year, one delegate from Washington, D.C., did not vote for Al Gore, to whom she was pledged, as a protest against the District of Columbia not having full representation in Congress. But it's not clear that if this elector's vote had been the deciding vote she would have been so eager to break her pledge.
All the votes are then counted in a joint session of Congress. The incumbent vice president of the United States, who also serves as the president of the Senate, presides over the counting of the electors' votes. I was privileged to take part in this process after the most recent election, when Vice President Gore had the duty of counting the votes that made his rival president. What a difficult constitutional burden this must have been! Despite repeated disruptions from some of his own supporters, who he had to rule out of order time and time again, the Vice President seemed to handle this difficult situation with the good humor and dignity befitting our constitutional regime.
One candidate must receive a majority of the electoral votes cast to become president. In America today, that magical number is 270 (out of the 538 total electoral votes). George W. Bush got just 271 in 2000. But what if he had not? What if, in a close national election such as this one, there had been a viable third party candidate who could have garnered some electoral votes, keeping either of the other two candidates from getting a majority?
The constitutional back-up plan would have the House of Representatives choose the president and the Senate choose the vice president. The House would have to choose among the top three vote-getters in the Electoral College and would vote as state delegations, not as individuals. Each state would have but one vote for president and a majority of those state votes would be required for a president to be elected. The Senate would then choose the vice president from the top two contenders for that office. This has happened before, but not in well over a century. In fact, the last time the choice of president went to the full House, my predecessor as a senator from Kentucky, the great statesman Henry Clay, played a leading role in the choice of John Quincy Adams over Andrew Jackson.
Is the Electoral College method of presidential selection the easiest to understand or the most efficient in its execution? No. But our system is not designed to be simple and efficient. It is designed to promote good government and legislation that forwards the common good of a large and diverse nation. For two centuries it has done a pretty good job at that. Every day when I walk into my Senate office, I am thankful for the complexities and inefficiencies that have contributed to the freedom and prosperity we know in America. Though it may never have functioned as intended, the Electoral College has been the linchpin of American political prosperity. It has formed our political parties, moderated our more extreme elements, and forged the presidential campaigns that have given direction to our ship of state.
OUTLINE OF THE BOOK
Securing Democracy is not an exhaustive attempt to chronicle every aspect of the importance of the Electoral College in American politics. Indeed, one could never really outline all the subtle ways constitutional processes like the Electoral College contribute to our life as a nation. Even the most accomplished social scientist or philosopher could not unravel the tangled web of culture and constitutionalism that forms our union. The nineteenth-century Frenchman Alexis de Tocqueville probably came as close as is humanly possible with his classic Democracy in America. But we do not undertake such a Herculean task here.
Nor does this book attempt an exhaustive accounting of every possible constitutional and statutory change that could be made in our system of presidential elections. (Some, for instance, would seem salutary. Personally, I would support efforts by the states that would bind their electors to vote the way they pledged. Other changes, such as states moving to systems of proportional distribution like the ones Maine and Nebraska have, would seem to mitigate the benefits of the Electoral College as it exists today.) Rather, the essays collected here provide interesting and penetrating arguments for the importance of the Electoral College in American life. Collectively, these finely honed arguments should cause us all to pause and consider the long-term potentialities of a rush to judgment against our venerable presidential election system.
There may be some overlap in the arguments of the authors—a critical reader may even be able to find some disagreements among them—but it is clear that, when taken together, these scholars have an uncommonly deep and sophisticated understanding of the nature of American politics and its foundations in American constitutionalism. It is my hope that they will receive a wide readership among public figures, academics, and that engaged public that forms the backbone of our republic.
Gary Gregg begins the volume with an outline of the origins of the Electoral College at the Constitutional Convention and its defense in the Federalist Papers. To many, questions of origins are arcane and irrelevant. In his essay, however, Gregg demonstrates how an understanding of the origins of an institution can cast vital light on contemporary deliberations. Though he does not put it quite like this, I think his essay demonstrates that the Electoral College has served America well because it is built upon the nation's very foundation-stones. Though it may not function as the Founders intended, it has worked because it is based upon those principles upon which our Founders stood-federalism, the rule of law, and representative government.
George Washington was unanimously selected the first president of the United States in 1788 and 1792. The Electoral College functioned as intended in those two elections, because it settled upon the man most fit for the job. By 1800, however, the Electoral College began to break down. The American party system that George Washington fought so hard to discourage had been birthed in the disagreements between Thomas Jefferson and James Madison on the one hand and John Adams and Alexander Hamilton on the other. The Electoral College would never again function as intended.
In the second chapter, elections expert Andrew Busch outlines the development of the Electoral College from the great crisis following the election of 1800 through the democratization of the Electoral College in the states, and he explicates the controversial presidential elections of the nineteenth century, which in some ways set the stage for the events following the 2000 vote.
One of the more important aspects of the Electoral College is its recognition of the individual states as states. Though it has undeniably been the trend in modern America to look to the federal government for solutions to societal problems, the Electoral College reminds us both of the important role the Framers reserved to the states and the role the states continue to play in American politics. In his essay, James Stoner points out how important the Electoral College is to our continuing recognition of the states as guardians of something more fundamental than their roles as mere administrative units. He also reminds us how important the nexus between the Electoral College and the states has been in the democratization of American politics.
"America at its best matches a commitment to principle with a concern for civility." I was on the dais with the newly inaugurated President George W. Bush when he uttered those words as part of his eloquent inaugural address. On that cold and rainy Washington day, the new president captured a core element that has helped sustain the American political experiment for more than two hundred years: civility. Though it may not be immediately obvious, the Electoral College has contributed to the civility that has been a hallmark of most of our political history. It has contributed to the successful competition of our two broad political parties in almost every state and every region. It has dampened the candidacies of radical sectional candidates and demagogues. It has contributed to our politics being a little less fierce and a lot more productive than would otherwise be the case. It has, as Paul Rahe points out in Chapter IV, "moderated our political impulse."
In classical political thought, from the Greeks and Romans to the Founding era, political parties were held to be the scorn of free government. George Washington famously warned us to avoid such institutions in his Farewell Address, which is still read every year in the United States Senate. And yet, former President Washington had barely had time to rest beneath his shade trees at Mount Vernon before the American party system came to life. There are some—especially among our nation's youth—who continue to hold that our political parties are a blight on the body politic. But, unlike Washington, they argue that our parties are too moderate, that they are but two sides of the same loping and aimless mule.
Most of us, however, have come to realize that the two-party system seems to work very well and contributes to our political stability and happiness as a nation. In the fifth chapter, Michael Barone, that astute observer of contemporary politics, discusses the Electoral College as one of only two institutional supports of our two party system. Without it as a stabilizing force, we might very well become a nation of fractured and radical parties unable to govern.
My former colleague in the Senate, Daniel Patrick Moynihan, rose to the Electoral College's defense in an address on the floor of the Senate more than two decades ago. The occasion was a debate on Senate Joint Resolution 28, one of the perennial attempts to eliminate the Electoral College and replace it with a direct popular election for president. A revised version of his sage warnings is included here as Chapter VI. In typical Moynihan fashion, he weaves historical details with philosophic nuance to cut to the core of the matter in such proposals, and he asks us to consider how close to the taproot of American democracy our innovators unknowingly hack.
In a similar vein, Michael Uhlmann warns in Chapter VII that because the Electoral College plays a critical role in our constitutional order, we endanger that order's coherence if we abolish the College. Appeals to honor the "will of the people," Uhlmann argues, can be as hazardous as they are misleading. Walter Berns, perhaps the one man who can claim the title of Dean of Electoral College Scholars, contributes the Afterword to this volume. He ends by asking us to consider the outputs of our elections as much as we do the inputs. Critics of the Electoral College, he points out, only seem concerned with electoral processes, voting mechanisms, and perceived violations of some magical elixir called "one-man, one-vote." Where, he asks us to consider, is the concern for the outputs of our system? Does it matter at all what kind of president our electoral process produces? Should we not be concerned that radical changes in the process may well lead to radical changes in the men who would inherit our greatest public trust?
Fittingly, Securing Democracy ends where it began, with the foundations of the Electoral College in the political theory of the Founders. Appendix I contains the constitutional elements of the Electoral College found in Article II and the Twelfth Amendment. James Madison's classic exposition of our compound republic in Federalist 39 and Alexander Hamilton's discussion of the Electoral College found in Federalist 68 are reprinted in the second appendix.
Anyone concerned with the future of our great nation would do well to consider the subtle and often overlooked contributions the Electoral College has made to American public life. These cannot be rendered into a six-second sound bite or be reduced to a bumper sticker slogan, but they are real and remain vital. Thanks to Gary Gregg and the contributors here collected, we now have a readily available reminder that the Electoral College has been responsible for much good and very little ill in American history. After more than two hundred years of political prosperity, how much more could we ask of any institution designed by human hands?
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