A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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June 02, 2006The Moose's mistake: how the House decides electionsThe Moose contemplates Unity '08: While the Moose is deeply sympathetic to the efforts of Unity '08, he is pessimistic about their success. Don't misunderstand the Moose, he sees a genuine need for a red, white and blue national unity ticket that defies the partisan polarization. But, there are too many obstacles for a third party to be successful at the national level - the most significant one being the electoral college. Without 270 votes, the election is thrown into the House where the majority party decides the outcome.I am perhaps less sympathetic, but I share the Moose's conclusions in all but one regard: the Moose has misapprehended the effect of throwing the election into the House. Although tangential to the point, will explore that point in this post. The Twelfth Amendment, which amended Art. II §1's Presidential election process, decrees that: if no [candidate for the Presidency] have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choiceFor our purposes, this is not a serious deviation from the original mechanism: when the electoral college cannot resolve the election, the House will resolve it in a process wherein each state has one vote. This seems counter-intuitive at first glance, which is probably what has thrown the Moose: if each state gets one vote, why have the House decide the election, rather than the Senate? And how does the House conduct such an election? The answer to the former question is that the Senate "branches into two characters, the one legislative and the other executive;" given that the Senate already commingled with executive by way of the appointments clause, it was felt that it was better for the balance of powers that the Senate not have any say in the selection of the President. On September 4th, 1787, the committee of eleven reported to the Convention the progenitor of the clause, in the form that "if such number be a majority of that of the electors; and if there be more than one who have such majority, and have an equal number of votes, then the Senate shall immediately choose by ballot one of them for President." Almost immediately, John Randolph wondered "why the eventual election was referred to the Senate and not to the [whole] Legislature? [Randolph] saw no necessity for this and many objections to it." The convention wrestled with this for several days; Elbridge Gerry suggested at one point that if "the President was to be elected by the Senate out of the five highest candidates, that if he should not at the end of his term be re-elected by a majority of the Electors, and no other candidate should have a majority, the eventual election should be made by the [whole] Legislature." Hu Williamson agreed that such arrangement would be "a reasonable precaution against the undue influence of the Senate," and even Gouverner Morris "thought favorably of Mr. Gerry's proposition. It would free the President from being tempted in naming to Offices, to Conform to the will of the Senate, & thereby virtually give the appointments to office, to the Senate." But at this point, Wilson came down on the side of the arrangement we know today: Mr. WILSON said that he had weighed carefully the report of the Committee for remodelling the constitution of the Executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have in fact, the appointment of the President, and through his dependence on them, the virtual appointment to offices; among others the offices of the Judiciary Department. They are to make Treaties; and they are to try all impeachments. In allowing them thus to make the Executive & Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be laws of the land, the Legislative, Executive & Judiciary powers are all blended in one branch of the Government. The power of making Treaties involves the case of subsidies, and here as an additional evil, foreign influence is to be dreaded. According to the plan as it now stands, the President will not be the man of the people as he ought to be, but the Minion of the Senate. He cannot even appoint a tide-waiter without the Senate. He had always thought the Senate too numerous a body for making appointments to office. The Senate, will moreover in all probability be in constant Session. They will have high salaries. And with all those powers, and the President in their interest, they will depress the other branch of the Legislature, and aggrandize themselves in proportion. Add to all this, that the Senate sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves. Upon the whole, he thought the new mode of appointing the President, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the Report, nor befriend a system of which they make a part.Williamson suggested as better than an eventual choice by the Senate, that this choice should be made by the Legislature, voting by States and not per capita, but it was Roger Sherman who finally broke the dam by: suggest[ing] the House of Rep[resentative]s as preferable to the Legislature, and moved, accordingly, [t]o strike out the words "The Senate shall immediately choose" and insert "The House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one voteIt passed with only Delaware voting against. That covers the why, and we now turn to the how. The Moose's concern about Unity '08 appears to be that it will throw the election into the House "where the majority party [will] decide[] the outcome." Should such an outcome happen, though, it will not happen without precedents to guide our expectation of what happens next. On February 2, 1801, the House adopted a rule that, in the event that it was required to decide an election (as it was becoming apparent it would imminently have to), [i]n balloting, the following mode shall be observed, to wit: The Representatives of the respective States shall be so seated that the delegation of each State shall be together. The Representatives of each State shall, in the first instance, ballot among themselves, in order to ascertain the votes of the State . . . in case the vote of the State be for one person, then the name of that person shall be written on each of the duplicates; and in case the ballots of the State be equally divided, then the word ‘‘divided’’ shall be written on each duplicateIII Hind's Precedents of the House of Representatives 288-90 §1982 (PDF). As the interested reader will learn in John Ferling's excellent book, Adams vs. Jefferson: the Tumultuous Election of 1800, the House - after numerous ballots and no little amount of intrigue - finally had a sufficient majoriy of votes to declare Jefferson President. On February 7, 1825, the House adopted rules that were (for our purposes here) identical to those which had prevailed in 1801, in order to decide the Presidential election that would put Old Man Eloquent in the White House. Id. at 291-293. In the 1824 election, [s]pirited debate as to the nature and requirements of contingent election preceded the actual vote. One question concerned the role of individual Representatives. Some asserted that it was the duty of the House to choose Jackson, the candidate who had won a national plurality of the popular and electoral vote. Others believed they should vote for the popular vote winner in their state or district. Another school of opinion suggested that House Members should give prominence to the popular results, but also consider themselves at liberty to weigh the comparative merits of the three candidates. Still others asserted that contingent election was a constitutionally distinct process, triggered by the failure of the people (and the electors) to arrive at a majority. Under this theory, the popular and electoral college results had no bearing or influence on the contingent election process, and Representatives were, therefore, free to consider the merits of the contending candidates without reference to the earlier contestT. Neale, Election of the President and Vice President by Congress: Contingent Election, CRS RS20300 (2001). The crucial rule that was hammered out was that "[e]ach state delegation received a ballot box, and Representatives cast paper ballots inscribed with the name of the candidate for whom they were voting. A majority of votes of a state delegation was required to cast a vote for any candidate; if there was no majority, the vote was declared "divided" and was forfeit for that round." Ibid. The precedents of the House seem clear: when the Presidential election is thrown into the House, the majority party does not necessarily decides the outcome. Astute readers will note that in both elections discussed above, the Presidency was determined by members of the lame-duck Congress; that anomaly was corrected by the Twentieth Amendment, which means that a Presidential election thrown into the House in January 2009 would be decided by a Congress elected on the same day as the President. While we cannot guess the results of such an action to decide the 2008 election, it seems appropriate to conclude by considering what would have happened in the last two elections had they been thrown into the House. For our purposes here, I assume for sake of argument that Republicans would vote for George W. Bush and Democrats would vote for his opponent. On January 3rd, 2001, the 107th United States House of Representatives was called to order, and it would have been this House - comprised of 221 Republicans, 212 Democrats, 2 Independents - which would have decided the election. Examining the membership of the 107th House, and in light of the precedents of the House, I conclude that Bush would have been elected 28 states to 18, with four states divided, the ballot proceding as follows: Alabama - Bush (5-2) Four years later, the 109th House was called to order, containing 231 Republicans and 201 Democrats. On the same assumptions as previously, Bush would have won with 30 states, beating Kerry's 17, with three states divided: Alabama - Bush (5-2) (You want historical irony? If Delaware's delegates had gotten their way, what would have happened in the 107th and 109th Senates had the 2000 and 2004 elections been decided by the Senate? Assuming a similar rule to the House, in 2005, Bush would have prevailed with 21 states to Kerry's 15, with 14 states divided - but in 2001, Gore would almost certainly have prevailed 18-17 over Bush on the first ballot, with every other state divided, something that I imagine would have thrilled Delaware's two Democratic Senators). Now, in both cases, the majority party got its candidate, but it is important to note that it did not do so by virtue of being the majority party. Presently, both parties are well-represented throughout the country, but it is certainly easy to imagine both extreme and more realistic hypotheticals where a minority of the House might prevail, by virtue of consolidating its hold on a small number of very populous states. Posted by Simon at June 2, 2006 01:12 PMComments
With so many coming up with reasons with why this movement will fail, one must conclude that Unity '08 has struck a chord. Again, I think we are drowning in details and losing focus of the big picture. Posted by: Mathew at June 3, 2006 05:44 PMDetails are the building blocks of the big picture. Posted by: Simon at June 4, 2006 12:52 AMHuh? It seems like the minority party could prevail only by consolidating its hold on a large number of very low-population states.... Under this scenario, a Republican would almost certainly win, given their dominance in the low-population states. Posted by: Lex at June 4, 2006 01:43 AMI'm agnostic on the Unity '08 issue. Maybe it can work. It is intriguing. But the issue is likely moot because the powerbrokers would still have the last word in the House. I agree with Lex, I don't see how the minority party can prevail currently. Those wanting to end the Republican dominance in DC would seem to be ill served by the Unity '08 strategy. Posted by: Kevin at June 4, 2006 03:47 PMKevin, In any event, I was not under the understanding that Unity '08's purpose was "to end the Republican dominance in DC" - I was under the impression that it was equally critical of both parties? If it turns out that it's really just a front organization for moderate Democrats (counterproductive to that goal or not), that hardly gives moderate Republicans a reason to geton board. Incidentally, Mathew - "[w]ith so many coming up with reasons with why this movement will fail, one must conclude that Unity '08 has struck a chord." Well, I don't know if "striking a chord" is right. It seems more like floating a trial balloon and getting it shot to ribbons; I've seen no serious rejoinders from Unity supporters to any of the criticisms put here and in other fora. So far, it has merely defined its purpose in terms too general to alienate anyone in particular. Posted by: Simon at June 4, 2006 04:08 PMSimon, if Unity '08 is equally critical of both parties as you say then by definition it is opposed to the continuation of the status quo. I like the concept of a unity government. But, I don't see it as realistic. A more realistic mechanism for meaningful change, particularly for those advocating a centrist approach, would be the formation of a centrist party. IMHO. Posted by: Kevin at June 4, 2006 06:26 PMIt seems more like floating a trial balloon and getting it shot to ribbons; I've seen no serious rejoinders from Unity supporters to any of the criticisms put here and in other fora. So far, it has merely defined its purpose in terms too general to alienate anyone in particular. It sure seems to be getting a lot of favorable press... Don't you think that it is way too early for them to do anything other than define their purpose? It has been less than a week for crying out loud. Doesn't the consolidation of the details of this movement surround whether or not they get a candidate? Nominees control the details of the platform, etc., etc. Without that what you are proposing seems a little silly to me, and putting the wagon before the horse. I don't think it has been shot to ribbons, there side of the argument is certainly getting more play than yours... I think rather, those who don't want change were quick to jump out of the gates with criticism that the average voter doesn't relate with... In the end what will matter is something different than what we have now is proposed and the details will fall into place. It seems to me you and Kevin are arguing for a scenario where one of the two extremes in either party set the agenda. That just isn't acceptable to me any longer. Posted by: Mathew at June 5, 2006 01:34 PMMathew, Matt, here's the thing. Unity can approach their effort however they want. Maybe it does make sense to start as they have. But for me, and apparently for others as well, they have to do much more to gain my actual support. As Simon points out, they haven't done any heavy lifting yet. They're just talkin' purty. If you want to be jazzed and thrilled by a feel-good sentiment, you go right ahead. I'm waiting to see how UNITY decides to manifest this feel-good sentiment. As I've said previously, I support the notion of identifying crucial issues. However, even though I know which one I myself think are crucial, I know others will disagree. Sooner or later, this feel good sentiment of identifying the most crucial issues and bringing them to the forefront runs into the problem of a substantial lack of consensus on how to sol...ve each of these issues, and what sort of approach can bridge the gap. My gut tells me that the thing which usually bridges the gap is that when the sides tire, someone comes up with a plan which both sides can live with. So ultimately the unity challenge is to come up with solutions that a majority can live with. And whether it's me or you or the supposed unity party saying so, it's a trivial insight to say that we need ito identify crucial issues and forge compromises. The hard thing, obviously, is to actually agree upon the most important issues and forge the liveable compromise. Posted by: bk at June 6, 2006 08:50 AM |
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