I'd like to beat one final note out of my previous posts suggesting we amend the anti-populism built into the Constitution out of the Constitution. This time it's about everyone's favorite questionable and undemocratic machine: the Electoral College.
The Electoral College elects the president. Each state is given a total number of electoral college votes based more-or-less on population. The vast majority of states give 100% of their votes to whichever candidate gets the most votes in their state (so the winner of the 50.1%/49.9% horserace gets all the votes), while a few uncontroversial states divvy it out pro rata, which is much smarter. To win, a candidate needs to garner more than half of the electoral college vote. If no candidate does, it goes to the House of Representatives for a vote, which is at least a more populist option than the Senate.
The electoral college was initially another compromise meant to assuage post-colonial states who were reluctant to give up any of their autonomy to a centralized federal government. The Articles of Confederation, a more state-power-centric first draft of the Constitution, had collapsed for want of centralization. The more independent states were now willing to accept a stronger central government because the new country was at risk of losing its legitimacy as a recognized nation, but still needed convincing before they would sign over their power to things like war and commerce. The electoral college essentially makes it so that states, not people, elect the president. The representatives for the states, who were the ones sitting at the table deciding whether to adopt the constitution, liked this.
The electoral college is monumentally stupid for a few reasons. For one, candidates don't need to get the most votes to win. In 1876, Rutherford Hayes lost the popular vote by 250,000 votes, a fairly solid 3% margin of loss. Naturally, he was sworn in as president shortly after. The same thing happened in 1888. In 1824, Andrew Jackson won the popular vote and the electoral college vote, but didn't quite get enough electoral college support to cross the halfway threshold as required. It went to the House, who elected John Quincy Adams president, for some reason. Then in 2000, Vice President Al Gore beat Texas governor George W. Bush by more than half a million votes. The rest is, unfortunately, history.
The problem is that, since a candidate needs just over half of the states' electoral votes to win, but then only needs just over half of each state's popular vote to win all its electoral votes, a candidate could conceivably win the presidential election with just over 25% of the popular vote, by winning just-over-half the votes of just-over-half the necessary states (100% x 0.5 x 0.5, then add a few votes). This would be a controversial-if-acceptable outcome if we had a slew of different political parties competing for president, but for the duration of United States history we have had two predominant parties. This means that a candidate could conceivably lose the electoral college vote, and thus the presidency, while at the same time winning almost 75% of the popular vote. This is nuts.
Practically speaking, however, the result of the electoral college is that candidates end up spending all their time and resources in a few contested "swing states" rather than campaigning across the country. Here is a map from Wikipedia showing the visits and money spent in each state by the 2004 presidential candidates (President Bush, Sen. John Kerry) during the five weeks preceding the election. See if you can spot a pattern!
Look at those insane maps. The amount of money and attention spent on a few people in Iowa, Wisconsin, New Hampshire, Florida, Ohio, Pennsylvania, Michigan, and a few others is wildly out of proportion to their proportion of the population or their importance within the country for any reason besides their electoral votes. The campaigns had done their math: with the states they had "locked" (i.e. states in which they could reliably win more than 50% of the vote) accounted for, they only needed to beat the competition in these "contested" swing states. This creates a horse race centered around otherwise meaningless concentrations (or un-concentrations-- Iowa? Nevada? Really?) of the population. The electoral college does not create an incentive for presidential candidates to interact with the population at large, but instead to focus on a few geographic designations that have the most uncertain outcomes. This affects their funding, strategy, campaign promises, and eventually their actions as president. Some suggest, for example, that the reason biofuel, a dirty, expensive gasoline substitute, receives attention and support is because presidents line up to take "biofuel pledges" in order to satiate the swing state of Iowa's corn vote.
The electoral college, like the Senate and the Amendment Clause, privileges random segments of the population over others in a zero-sum voting situation, giving some swaths of the country more power over others based on their location, locations chosen because the lightning bolt of electoral math happened to strike them and not their neighboring states. This is bad. Abolish the electoral college.
The New Yorker is running an excellent in-depth piece on the Dewey & LeBoeuf meltdown called "The Collapse."
If it were 2010, I would say "Dewey & LeBoeuf is a massive Biglaw firm out of New York with thousands of lawyers and offices all over the world. It recently formed out of the merger of Dewey Ballantine and LeBoeuf, Lamb, Greene & MacRae. It represents Disney, JPMorgan Chase, AIG, BP, and many of the largest, richest, and most powerful companies on Earth. It has weathered the global economic crisis with enviable tenacity, and is changing the definition of what it means to be a law firm."
However, it is March 2014, and so I will actually say: Dewey & LeBoeuf is the poster boy for what happens when, as its managing partner Steven Davis said at a partner meeting, "it is only money that holds a firm and its partners together." The firm over-promised and over-extended its finances attempting to satiate its greedy, short-sighted partners, most of whom jumped ship after driving the firm into financial ruin and now practice for lots of money elsewhere. The firm died by suicide and is now navigating insolvency, bankruptcy, and liquidation.
Nathan Burney, a criminal lawyer who also writes and draws The Illustrated Guide to Law, recently posted a series called "Convict Yourself," an illustrated guide to the history of confessions and Miranda rights.
The whole thing is great. It begins in the earliest reaches of English common law and the very idea of "individual rights" and runs right through the evolution of the English common law courts, the transformation of these rights into assumed and "self-evident" rights, American jurisprudence on self-incrimination, and all the way through Miranda rights today, none of which is as simple as you'd think, but all of which is very fascinating as presented by Burney. Worth the read.
Last week I proposed two changes to the Constitution, one to fix the busted Senate and the other to fix the busted amendment process. Today I want to look at a few more, proposed by Larry J. Sabato in "A More Perfect Constitution." He proposes 23 changes. Here are the ones I like, and a few that I don't.
Mandate non-partisan redistricting for House elections to enhance electoral competition.
This is a good idea. Gerrymandering is a medium-to-huge problem that skews popular representation in favor of partisan power-grabbing.
Expand the size of the House to approximately 1,000 members (from current 435), so House members can be closer to their constituents, and to level the playing field in House elections.
This is a good idea. Such an expansion would allow the Senate to expand to accommodate its relation to population rather than states, as I previously suggested.
Create a Continuity of Government procedure to provide for replacement Senators and Congresspeople in the event of extensive deaths or incapacitation.
This is a good idea. What happens if the State of the Union were attacked? That's the entire executive, legislative, and judicial branch in one swoop. The secretary of, like, agriculture sits it out every year so there's somebody in the line of succession left. But there should be a better safeguard than that.
Limit some Presidential war-making powers and expand Congress’s oversight of war-making.
This is a good idea. One person should not have as complete authority over military power as our president does.
Allow men and women not born in the U.S. to run for President or Vice President after having been a citizen for 20 years.
This is a good idea. Citizenship is a meaningless construct that is in no way a good measure of someone's capacity to lead the executive branch.
Adopt an automatic registration system for all qualified American citizens to guarantee their right to vote is not abridged by bureaucratic requirements.
This is a good idea. It's hard enough to register to vote that lots of people either can't or else don't even bother. Increasing democratic participation and easing access is a good thing.
Now here are a few I don't like:
Expand the size of the Supreme Court from 9 to 12 to be more representative.
The number of justices in the Supreme Court is not fixed by the Constitution at nine-- in fact, it's not fixed at all. In the 1930s, for example, the Supreme Court overturned so many of President Roosevelt's initiatives that he threatened to expand the Supreme Court with tons of justices who would rule in his favor if they didn't stop. This proposed amendment makes me wonder if he's read Article III at all.
Add a Balanced Budget Amendment to encourage fiscal fairness to future generations.
Paul Krugman would hang him out to dry for this. Even healthy economies need to run deficits and accrue debt on occasion, and requiring a balanced budget would totally hamstring the government's ability to do so. This is a remarkably bad idea.
The attorneys of Drewes Law have access to post and edit the blogs. Attorney Bios.