Saturday, December 17, 2016

Not Your Forefathers' Electoral College

All of a sudden people care about the Electoral College again, and people are making all sorts of arguments about what should or shouldn't happen based on some "historical" arguments about what the Electoral College was supposed to be. It's clearly an example of people cherry-picking "facts" to support their argument and ignoring those details that inconveniently don't.

A fair and complete reading of the historical record would show that neither side in the current struggle is completely supported by the facts, however, it is reasonable to conclude that if the Electoral College were to function the way it was originally intended to Donald Trump would probably not become our next President.

Why have an Electoral College in the first place?

Ordinarily, most people just see the Electoral College as an arcane, but relatively benign, quirk in our Constitution. It usually follows, but often exaggerates, the popular vote and so no one really thinks twice about it.  That is until you get to an instance like we had this year (and 2000) where the winner of the popular vote doesn't win in the Electoral College.

If you ask most people under normal circumstances outside of the context of an election like this one, they will tell you that they think the Electoral College is silly and we should just go with the popular vote.  Until you get an election like this one. Then, all of a sudden, people become staunch defenders of the Electoral College simply because it means their candidate will win.

But what was the point of having it in the first place? I've seen a lot of people offering up arguments that are incomplete at best. And they are strategically incomplete because they only want to include the parts that support their side. But let's take a look at the full story to understand what it was that the Framers of the United States Constitution were really thinking when they devised this strange system of selecting a President.

The Framers didn't trust government. That's why, when they attempted to craft a new form of government, they went to great lengths to try and restrain it. They'd seen the abuses of governmental authority that led them to rebel against British rule and replace it with their own.

The first attempt went too far.

The first Constitution of the United States, the Articles of Confederation, was an overreaction to our Founding Fathers' fear of government authority. It created a very weak national government and gave most authority to the State governments.  Whether or not that sounds like a good idea is the subject of a separate argument, but there is a key detail in this: In creating a weak national government, they did not include a provision for an Executive.  There was no "President of the United States" under the Articles of Confederation. As a result, there was no one at the national level who was responsible for making sure that the laws were carried out.

After operating under that constitution for about a decade, it became clear that it was insufficient to deal with the problems that the new country was facing. Eventually the problems became so bad, and the desire to fix them so great, that it was decided that the Articles of Confederation needed to be fixed. So a Constitutional Convention was convened in Philadelphia in 1787.

The Articles of Confederation were essentially tossed out and they basically started over from scratch.  Many things were different about this new Constitution, namely that it created a national government with substantial authority. Part of that included creating an Executive Branch responsible for making sure that the laws were "faithfully executed" (hence the name, you see).

That meant putting someone in charge, and that raised the same concerns they had under British rule: that governmental power, and Executive power in particular, could be abused.  It needed to be checked in some way.  Related to this question was the decision over how such an official would be selected. This, then, becomes the story of how the Electoral College came to be.

One of the first proposals to be considered regarding the selection of the President was a simple notion of direct popular election: Just have the (male, white) people pick the President in an election.  This was not a very popular idea at the Convention for one very simple reason: The Framers were, for the most part, doubtful about the people's ability to select a President wisely.

It was the 1780s. The state of communication, transportation, and education was not what it is today. There was a reasonable concern that the voters wouldn't really be able to make a wise decision about who should be President because they were ill-equipped to do so. They wouldn't be able to discern who the "best" person for the office would be because, simply put, they didn't know much about governing and the law themselves. Furthermore, it wasn't likely that voters would know much about people outside of their own state... people who would be qualified and deserving of the position.

Beyond that, and even more telling, were the concerns that the public could easily fall prey to what America's most famous Broadway rapper/Founding Father, Alexander Hamilton, referred to in Federalist Paper #68 as someone with "talents for low intrigue, and the little arts of popularity."  Simply put, the Framers feared that if the election were left up to the people themselves, the office would end up falling to a demagogue... someone who would simply rise to the office because he knew what emotional buttons to push with the voters.

So, selection by direct popular election was rejected by the Framers at the Constitutional Convention because they didn't think the American public would be informed enough to make the selection themselves, and could too easily be persuaded by someone skilled in "the little arts of popularity." Basically, the thing they were most concerned about was something exactly like what ultimately happened in France in 1804: Through popular appeal Napoleon convinced the French people to proclaim him Emperor through a popular vote known as a plebiscite.

Even though they had significant doubts about the ability of the public to choose a President without falling prey to demagoguery, they still felt the people should be involved in some fashion. They were, after all, trying to create a system of popular sovereignty where the people rule. It's why the Constitution begins with the words "We the people..."

The people had to have some kind of say, just mediated in some way.

They considered selection by Congress, somewhat akin to how Prime Ministers are selected in parliamentary systems... with the exception that the President would not be a member of the the legislature. It satisfied the requirement that the people be involved in the selection of the President because the people would have a hand in the selection of Congress.  The "voice of the people" therefore would be heard through their duly elected members of Congress, who would presumably be better informed about the complexities of government and policy, and know of individuals who would be qualified to appropriately and effectively exercise the Executive Power of government.

But this, too, had a significant drawback: It would create a President who would be beholden to Congress for his position. (Yes, I'm using the masculine pronoun here because it was 1787 and they clearly thought that governing was solely the province of men). Since having an executive who was independent of the legislature was critical to their plan of having each branch of the government serve as a check on the others, this wasn't going to work. If you let Congress pick the President, they would simply pick someone who would let them do what they want and not be an effective check on their power.

So... scratch that idea.

What's left? That's where the idea for the Electoral College came in: Have the people select individuals (who were not members Congress) who would choose the President on their behalf.  It was a simple solution that satisfied their requirements of a) popular sovereignty, b) selecting someone who was qualified for the office, and c) was independent of the Congress.  In Hamilton's words, the goal was simple:
the immediate election should be made by men most capable of analyzing the qualities adapted to the station [Federalist Paper #68]
In other words, the voters couldn't be trusted with the decision, but the Electoral College could be. It would be made up of those who would best understand the unique qualifications required to govern effectively as President.

The idea was simple. Voters didn't vote for President. They were to vote for Electors. They didn't see the names of Presidential candidates on the ballot.  They saw the names of potential Electors. They were to vote for someone they felt was knowledgeable about government and would be able to make a wise and independent judgment about who would be most qualified and fit to serve as Chief Executive of the national government.

They were pretty confident they'd come up with a good plan. Hamilton went so far as to call it "perfect", and if not perfect, it is at least excellent. He went so far as to argue in Federalist #68
The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.
 So, what are the "requisite qualifications" of which Hamilton speaks? Well, the Constitution is particularly silent on that point.  The only qualifications that the Constitution lists are simple: A natural born citizen who is at least 35 years old and a resident of the United States for at least 14 years.

That's it.

Surely they must have figured that there should have been something more than age and citizenship requirements, right? I mean, why go through all the effort of devising a method of selection that would assure that only the most qualified would become President if all they had to do is determine how old a person was, where they were born, and how long they'd been living in the country?

The simple answer is that they didn't include a more exhaustive list of qualifications because they felt they didn't need to. The reason they didn't need to is because they understood that the people who would actually be selecting the President, the Electors, would know what those requisite qualifications should be. That's why they were going to be entrusted with the task of choosing the President.

It is reasonable to conclude that they expected the President to be someone who understood the complexities of policy, the details of the Constitution, and how to maneuver the mechanisms of government. It is eminently clear that they did not think that it was desirable to have someone who would govern on the basis of popular appeal, which they viewed as dangerous.

The Perversion of the Electoral College

It's pretty clear now that what the Framers intended is not what we have now.  The Electors do not use wise and independent judgment. The expectation now is that they're just supposed to vote for the candidate that wins the popular vote of their state and not exercise any judgment at all.  Indeed, if they do choose to cast their vote for someone other than their state's popular vote winner, they are referred to as "faithless."  How dare they go against the "voice of the people?"

Indeed, we've dropped all pretense of choosing Electors based on their knowledge and judgment. We don't even list Electors' names on the ballots anymore. We just see the names of presidential candidates. Maybe there's a reference to Electors on the ballots in some states, but most voters don't really know who those people really are or how they came to hold that position.

So, how did we get to that point? How did we get from the idea that Electors were given a great responsibility to wisely select a President on behalf of the people to becoming wielders of a rubber stamp who were not expected to think but to simply act?

The simple answer is that political parties happened.

Political parties developed once the Constitution had been ratified and the new government had been in operation a few years.  People figured out the "rules of the game" of our election system and realized that there was strength in numbers.  If they could organize and coalesce ahead of time, they could "rig" the game in their favor.

You see, there's nothing in the Constitution about nominations. There are no provisions for primaries and caucuses and delegates and Conventions. All of those trappings that we've become accustomed to as the normal operation of our presidential election process all developed after the first couple of elections and outside of the Constitution.

It was all part of a move to game the system. The way I like to describe it to my students is that it's a lot like what happens on Survivor: A tribe loses an immunity challenge so they have to go to Tribal Council and vote someone out.  The key is what happens in the jungle the afternoon before they go to Tribal Council.  Alliances form and an attempt to predetermine the outcome of the vote takes place. The members of an alliance agree on who they are going to vote for because they know that there is strength in numbers, and as long as they all hold to the agreement, the outcome is already known before the vote happens.

That's what happens in our elections, or at least there is an attempt to make it happen that way.  You see, the Electors were supposed to be deciding independently among themselves for whom they were going to cast their votes. The voters didn't know. The other Electors didn't know.  They were supposed to make that decision on their own after careful deliberation.

And they weren't given a "list" to choose from.  They were supposed to decide on their own which 35+ year old, natural born citizen, and resident of the country for 14 years would be the most qualified to serve as President of the United States. "The voice of the people" was only supposed to be heard in the selection of these men who were chosen because they were trusted to take on this important task.  The Framers thought it quite likely that the outcome of the Electoral College votes would not produce the required majority, which is why they included the provision that would hand the decision over to the House of Representatives should any given candidate not receive a majority of the Electoral Votes.

They did not anticipate that the process would become rigged by "alliances" being formed and the parties deciding ahead of time who the Electors should vote for. This is evidenced by the fact that they originally established the rule that the winner of the Electoral College majority would become President and the runner-up would become Vice President. This created a scenario where the President would be of one party and the Vice President would be of the other.  The fact that they didn't see that problem coming is evidence that they didn't foresee how political parties would pervert their "perfect" system.

Derailing the system even further, potential electors would publicly announce for whom they intended to cast their vote if they were to officially become Electors.  So the idea that they would exercise wise and independent judgment quickly went out the window by the election of 1796.  The Federalist Party made their decision that John Adams was their preferred candidate and word went out to the States that those who supported the agenda of John Adams and the Federalist Party should vote for Federalist Electors who were pledged to vote for Adams. Similarly, the Democratic-Republican Party tapped Thomas Jefferson to be their nominee and this, too, was communicated to the public.

Thus, the "perfect" nature of the Electoral College quickly evaporated. The Electors had essentially become a formality, a technical mechanism through with the popular vote within the states would operate. It became more formalized over time. The "unit rule" was instituted to essentially award Electors to the candidate who won the plurality of a state, and each state party would draw up a list of names of people who would serve as Electors in the event that the candidate of their party were to win the state's popular vote. These potential electors were picked for their loyalty to the party, not because they had any special qualification to make a wise and independent decision as to who was "in an eminent degree endowed with the requisite qualifications" to be President of the United States.

Simply put, the Electoral College does not function in any way like what the people who invented it intended it to. Whether or not you see that as a good thing unfortunately depends on whether or not you like the outcome it produces, not on the relative merits of its principles.

Current Arguments For and Against the 
Electoral College and Why They Fall Short

Not surprisingly, there's been a lot of discussion in the last several weeks about the Electoral College, why it was created, how it is supposed to work, and whether or not we should get rid of it.  All too often, the arguments I've seen become bogged down by one unfortunate problem: they focus only on those points that support their desired outcome and ignore some inconvenient facts that don't.

Those who supported Hillary Clinton point to its unfairness and distortion of the "voice of the people" (She did, after all, win the national popular vote by nearly 3 million votes), which is true. But they also have made the dubious argument that the Electoral College was created to preserve slavery. All the while, they ignore the broader argument that the Framers expressly rejected the idea that the national popular vote should determine the outcome.

Yes, the issue of slavery was an important consideration at the Constitutional Convention, and the conflict and compromise between free states and slave states permeates the entire document. But to suggest that the purpose of the Electoral College was to appease the Southern states and/or "preserve slavery" is a stretch at best.  The relative power of the states to each other was an important consideration only in so far as how Electoral Votes would be allocated among the states, not in the principle that led to the creation of the Electoral College itself. And the allocation of Electoral Votes was itself a secondary artifact to how representation was to be established in the Congress.  So, while the Electoral College may have helped preserve the balance of power between slave states and free states, that was not its principal purpose.

On the other hand, Trump supporters are also guilty of conveniently ignoring important elements of the Electoral College's creation.  The Electoral College, they argue, was created to prevent the people in the most populous states from having "too much influence."  This argument is just as dubious as the "preserving slavery" argument, for the exact same reason.  It's effect may have been to help balance the influence of the large states with that of the small states, but again, that wasn't the reason it was created. If anything, the concern about large states was only in regard to the fact that, given the state of communication in 1787, the Framers feared that people would only vote for a "favorite son" from their own state because that's all they would know.

The bigger problem for Trump supporters in the argument over the Electoral College is the very inconvenient fact that, in all likelihood, if the Electoral College were to function in the manner that the Framers had intended it to, Donald Trump probably wouldn't receive a single vote. It is not a stretch to imagine that Electors who were using wise and independent judgment would most likely not even consider someone who has had no government experience and has frequently demonstrated a fundamental lack of understanding about governing, policy and the Constitution.

I'm not saying it is impossible, but given the responsibility they were given and the expectation of deliberation that was placed upon them, it is highly unlikely they would say "Hey yeah, let's give it to the reality TV guy with no government experience whatsoever, has demonstrated a fundamental lack of understanding of how governing, policy, and the Constitution work, and would be entangled in a rather immense web of potential conflicts of interest should he become President... not to mention the strong evidence now that a foreign adversary has significantly attempted to influence the outcome of the election"

I'm not saying they would automatically favor Hillary Clinton, but they would most likely not even give Donald Trump a first, let alone a second, look.

Where Do We Go From Here?

There are no winners and losers in this one without acknowledging some very basic weaknesses in their own point of view. When you try to argue a point based on some presumed "historical fact" you would be best served if you actually knew all of the facts, and acknowledged even those facts that weaken your argument. 

Otherwise, you're not actually accomplishing anything other than making yourself feel good about holding the views you hold, and receiving validation from those for whom you've reinforced theirs.

In the end, the Electoral College is going to do what it's done since 1796: The Electors are going to dutifully write down the name of the candidate they're "supposed" to write down and Donald Trump will become the 45th President of the United States.  But it does beg the question: If they aren't going to do what the Framers intended them to do in the first place, if the Electoral College isn't going to function they way it was actually supposed to, then there's really no point in having it at all.

Moving forward, it would be nice if we could have a serious discussion about how we go about selecting a President. Do we trust the people to make a wise decision, or do we need the safety valve of the Electoral College?

If we determine that we really don't trust the people, then we need to change the way we think about the Electors and let them behave in a manner consistent with how the Framers originally intended them to.

If we believe that the "voice of the people" should matter and we can trust it, then the Electoral College runs counter to that principle. It distorts the voice of the people by giving greater weight to some people's voices than it does to others simply because of where they happen to live.

But if we operate from an "ends justify the means" principle and think "Well, I like that my candidate won so I like the way we pick the President" then we're not really going to do anything.  Just consider how the reaction would be if it had gone the other way.  The cries of "The system is rigged!" would be deafening and the push for reforming it would be overwhelming.

Just look at how President-Elect Trump reacted four years ago when it looked like Barack Obama was going to win the Electoral College but lose the popular vote:

Remember that if/when the outcome goes the other way at some point in the future.

Suggested reading, because I'm a professor and therefore can't resist the urge to try and make someone read something:

The Avalon Project : Federalist No 68 -
Alexander Hamilton's explanation of, and justification for, the Electoral College

Edwards, George C. "The Faulty Premises of the Electoral College." In Nelson, Michael The Presidency and the Political System. 10th Ed. (Washington, DC: CQ Press)
A point-by-point takedown of the justifications for the Electoral College by one of the nation's leading presidential scholars.

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