November 22, 2007
Lincoln’s Plan to Battle the Electoral College IV Posted by John Steele Gordon at 10:55 AM EST It would be interesting to contemplate what would have happened in 1860, had the scheme mentioned by Julie Fenster really happened, in which states agreed to award their electoral votes to the national popular vote winner, rather than the popular vote winner in that particular state. (By the way, I have my constitutional doubts about this idea. It seems to me it would be “an Agreement or Compact with another State,” therefore requiring the consent of Congress under Article I, Section 10, a consent that would be very difficult to get through the Senate at the least.). As I understand the idea, since Lincoln won the popular vote, the Southern states would, under this agreement, have had to cast their electoral votes for Lincoln. Of course, they would have done no such thing, and the agreement would have broken down instantly. One of the great strengths of the Electoral College is that it has usually produced a clear winner, even when no one had a majority of the popular vote, giving that winner much needed legitimacy. Besides Lincoln, Woodrow Wilson in 1912 and Bill Clinton in both 1992 and 1996 failed to win a majority of the popular vote. But in all cases their right to the office was unchallenged. Only when the election was extremely close and charges of irregularities abounded, such as in 1876 and in 2000, has the legitimizing function of the Electoral College to some extent failed. I favor keeping the Electoral College as it is for numerous other reasons. They are best expressed by Alexander Bickel in a magisterial essay in his book Reform and Continuity. It’s long out of print, but any library that doesn’t have a copy can get one through interlibrary loan. It is well worth the time of anyone whose mind is not beyond the reach of reason on the subject. In this most democratic of countries, it is always hard to argue against anything that can be portrayed as “undemocratic,” because, the logic goes, since democracy is good, anything that is undemocratic must be bad. But as with anything else that is good, from candy to exercise to alcohol to sleep to butterfat to aspirin, there can be too much of a good thing. Many states still suffer from the excesses of Jacksonian democracy (the election of judges, for instance). One can make a very strong case that the reforms in 1975 that got rid of the undemocratic seniority system in Congress produced not superior democracy but an out-of-control spending machine building bridges to nowhere and tea-cozy museums. Then of course, there is the filibuster in the Senate, which effectively requires an extra-constitutional supermajority of 60 votes to get anything done there. Personally I have no problem with it in legislative cases. The point of the Senate, as Thomas Jefferson put it, was to function as the saucer in which to cool the coffee, by curbing the majoritarian passions of the House. The filibuster is a means of forcing the majority to compromise with the minority. (In cases of confirming presidential nominations, however, no compromise is possible, so no filibuster should be allowed. The Senate, not a minority of it, should give or withhold advice and consent.) It might be noted, of course, that one’s opinion on such matters as the Electoral College, election of judges, the seniority system, and the filibuster often depends on whose ox is being gored at the moment. I doubt the left would be so up in arms about the Electoral College these days had George Bush won the popular vote and Al Gore the College in 2000. They would instead be defending the astonishing political wisdom of the Founding Fathers, not trying to outwit them. (Good luck in that enterprise, by the way. They’re not an easy bunch to outwit.) As a classic example of this, I offer my favorite whipping boy, the editorial board of The New York Times. If you oppose the filibuster in the Senate as an unconscionable affront to democracy and majority rule, you will like this editorial of May 11, 1993, when there was a Democratic President and a Democratic majority in both houses of Congress. If, however, you favor the filibuster as one of the indispensable checks and balances that keeps tyranny at bay, you will like this editorial this editorial of November 28, 2004, when there was a Republican President and Republican majorities in both houses.
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