Drive for election change raises constitutional issue

August 8, 2010


Don’t look now, but suddenly the most interesting political struggles in the nation this summer have nothing to do with the midterm congressional elections.

Let me do what columnists do best — oversimplify complex questions in the name of summarizing them and using a sports metaphor to do it.

Some people who didn’t like the way the 2000 election turned out are trying to overturn the Electoral College with a power sweep around the Constitution. At the same time, some people who didn’t like the results of the 2008 election are trying to overturn the 17th Amendment with a double-reverse around the popular election of senators.

If they both prevail, the political system that emerges will be unrecognizable, except of course if you were around to vote in 1788, when the president won every electoral vote and when U.S. senators were selected by state legislators. Otherwise, everything changes.

Election change

Here’s what might happen if these two efforts succeed: A large number of states would designate their electoral votes to the candidate who won the popular vote in the presidential election, even if their own citizens overwhelmingly rejected that candidate. And the practice of the public election of U.S. senators, part of the American political landscape for a century, would be abandoned and members of the world’s most deliberative body would no longer be chosen by the members of the world’s oldest democracy.

The result would be that the people of Wyoming, where only 32.5 percent of the voters backed Barack Obama for president in 2008, would have watched their electoral votes be shoved into the Obama column, along with those of Utah and Oklahoma, both of which gave Obama only 34.4 percent of the vote. And the Senate? Members of your state legislature, those heroic figures of high intelligence and high integrity, would choose your two delegates to the nation’s upper house.

Now in fairness, it was state legislators who chose Daniel Webster, John C. Calhoun and Henry Clay, and it was the voters who chose John Edwards, Larry Craig and Harrison “Pete” Williams. And also in fairness, the system didn’t exactly work flawlessly in 2000, when chads became pregnant or hanging, instead of being an important but obscure measure of a patient’s risk for stroke — and the Supreme Court chose the president.

Unintended consequences

But there is a reason that as a newspaper editor I never permit the use of the word “reform” in our news pages. It’s that you can never count on a reform to be better than the way things are today — even though (and here the phrase “campaign finance” comes to mind, at least in the years preceding the McCain-Feingold legislation) you can count on reforms to have unintended consequences.

And now we employ my rule of politics and life, time tested and utterly reliable: All unintended consequences are bad.

Let’s give the tea partiers, some of whom are moving to end the popular election of senators, the credit they deserve. They actually want to amend the Constitution, not merely — as the Electoral College fiddlers want to do — undermine it.

The chances of this notion becoming law are about the same as Brett Favre being nominated to the Supreme Court. But that is not the point. The point is that in the second decade of the 21st century, every idea suddenly is on the table and nothing is too loony to dismiss.

Of course, as the country contemplates fiddling with the Constitution while Rome burns, six states have enacted the National Popular Vote plan to pack the Electoral College (with the measure having passed both houses of the legislature in an additional four states). This accounts for 73 electoral votes, more than a quarter of those required to activate the plan, which would go into effect when enough states adopt the measure to account for the 270 electoral votes needed to elect a president.

One of the arguments for the measure is that it would make the votes of all Americans, not just those in states with big electoral-vote totals, more meaningful.

“There is a sense among many reformers that we might get a different kind of political engagement by encouraging people everywhere to be involved,” says Alexander Keyssar, who teaches history and social policy at Harvard’s Kennedy School of Government. “We’re dealing with turnouts that are still quite low.”

This summer the hottest debate has been in Massachusetts, where Democratic Gov. Deval Patrick last week signed legislation to implement the plan.

Republicans opposed the measure and believe it would disenfranchise Bay State voters — and the Senate minority leader, Richard R. Tisei, uses a novel argument to make his point, citing the 1972 election, when Massachusetts stood alone in voting for Democratic Sen. George S. McGovern for president:

“Wouldn’t it have galled people,” he asked me the other afternoon, “to have Massachusetts cast its vote for Richard Nixon?”

A living document?

All of this is important — it does, after all, get to the nature of our democracy, and to the question of how we select our leaders. But it is also proxy for a separate, perhaps just as consequential, debate that the country has only begun to undertake in the political stratosphere but may soon become part of the political atmosphere.

That question is complicated but not esoteric. It goes like this:

Is the Constitution a document that should be followed literally, without license to shape it to new events and forces, or is it what some people call a “living document,” one that can adjust to changes that the Founders could not have contemplated?

Like efforts to change the way we elect presidents, which have burst forward after election debacles in 1800, 1872 and 2000, this question recurs in American history. It last sprouted to the surface in 1937, when the country debated Franklin Delano Roosevelt’s ill-conceived and ill-fated plan to pack the Supreme Court. It is poised to do so again. And that issue, even more than these very significant changes in election process that the country is contemplating, is poised to be the question of the hour, and of our times.

— David Shribman is executive editor of the Pittsburgh Post-Gazette.


Jimo 7 years, 5 months ago

While not a fan of the 17th Amendment myself (I'd criticize the change many years ago only to get vague stares back from people), it isn't clear to me (a) that repealing it would lead to any outcome the TP's would like and (b) fail to properly acknowledge that the 17th wasn't passed on a whim but as a reform to severe and perpetual problems with the original process.

I would recommend that proponents more carefully examine and more candidly acknowledge the problems of the original process and put forward a third system that is demonstrably better than the first two approaches.

Jimo 7 years, 5 months ago

" but the problems were procedural."

Errrr....no. I don't think you've studied the situation very well. While there were occasional problems with getting Senators appointed that didn't stop with the 17th Amendment. We still today have problems getting people into the Senate. Heck, in the last year we've seen seats vacant, sometimes for many months, at critical times from Massachusetts, West Virginia, Illinois, and Minnesota.

There were 2 core problems with the old system: 1. Corruption: the history of bribes, dealmaking and all manner of shenanigans in state legislatures over these appointments were legendary. And more important - unavoidable by such a system. This is in part due to #2. 2. The inability of voters to hold their state legislators responsible for #1 given the limitations on fact-finding, voters' inability to hold other voters' representatives responsible, and the lack of any single person being responsible (that is, each individual legislator blaming everyone else except themselves).

I think the most you could hope for here would be a mixed system perhaps with voters selecting several candidates and the state governor appointing one.

Jimo 7 years, 5 months ago

What? You need to read a good book on 19th century politics. Jeesh!

Jimo 7 years, 5 months ago

Ultimately, I think you're confusing two different themes: one, the balance of power between federal and state governments, and two, the size and scope of governmental power. Altering the structure of the first isn't particularly likely to get you the second.

Restoring a more formal state authority over senators would get you a sharp restriction on the legendary "unfunded mandates" and such. But that's easily enough resolved by funding them.

Medicaid, the state/federal partnership in health care for the poor, would be a common example. Enhancing the bargaining power for states in this relationship wouldn't shrink the program but most likely expand it via greater funding from DC to the states. While a few states object to the program ideologically, by far the greatest state complaint is funding (followed by inflexible rules). Turning the IRS into the tax collector for the States is a recipe for a large expansion of government. At present, the prime constraint on the program is the State's requirement to fund a portion of the costs, with most States banned from borrowing the money. Uncle Sam isn't so constrained. You don't need to know much about human decisionmaking to understand that when something appears to be free (state programs that don't have to be paid for by the states) than people will want more of that.

Jimo 7 years, 5 months ago

But that doesn't bring smaller government. I thought THAT was your goal.

Canada might provide some instruction, where the provinces administer whole sections of governmental power and are engaged in perpetual fights with the federal government over how much money it will cough up for the provinces' use. Every shortfall in action is explained away as "not enough money" from the feds. Meanwhile, citizens pay socialistic levels of tax but have little insight or control in where it all goes. And, the people in each province keep voting themselves more and more benefits, disconnected from the taxing mechanism that pays for it. (And what's more, one province - Quebec - keeps demanding special deals for itself at the others' expense.)

Jimo 7 years, 5 months ago

"but I don't think it's entirely coincidental that the size and scope of the federal government changed drastically after the 17th amendment."

I'm fairly certain most historians would cite (A) world war I and the inevitable expansion of power that comes from such a large effort and (B) the collapse of the judicial laissez faire roadblock to governmental restraint of big business and its various monopolistic schemes.

Jimo 7 years, 5 months ago

I am so tired of you half-education in history. You have no sense of proportion or perspective. Put down the libertarian propaganda and pick up a real book.

The civil war led to the expansion of gov't. So did WWI (so did WWII, so did the Cold War). But the scale and scope of the effort and therefore the government power aren't remotely comparable. It's like saying that yelling at someone and carving them up with a knife are the same thing since they're both "not nice."

Jimo 7 years, 5 months ago

"the collapse of the judicial laissez faire roadblock to governmental restraint of big business and its various monopolistic schemes."

Again, pick up a book.

As one railroad owner explained late in the 1880s, it didn't matter whether Democrats or Republicans won the election - they were both bought and paid for by the railroads (or the steel companies, or the banks, etc., etc., etc.). economic collapse.

Jimo 7 years, 5 months ago

You're supposedly a law student. Pick up either volume of "The Transformation of American Law" by Morton Horwitz. It's a classic work whose leftist viewpoint doesn't overcome the copious documentation of the challenge that economic change created for traditional legal forms.

independant1 7 years, 5 months ago

Let me do what columnists do best ??? Let me do what bloggers do best, oversimplify. The back and forth gets stuff out in open forum and cause one to think about it. The open forum does have downside, too much vitriol/ad hominum closed minds.

The constitution - the rules by which the game is played in USA. A fine set of rules for gov't constraint and personal liberty. The rules have to be almost static or there are no rules. Past ammendments changed the rules, some for better and some worse.

Orwell 7 years, 5 months ago

A further simplification – giving more power to voters to choose government officials, good. Taking away voters' power to choose government officials, bad.


It amazes me that the "Listen to us" crowd wants to hand over the Senate to indirect selection by state pols.

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