Sabato's Crystal Ball

A Missing Constitutional Link?

Politics and Its Place in Our Governing Document

Larry J. Sabato, Director, U.Va. Center for Politics October 18th, 2007

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Many would argue that, in many respects, today’s political system is broken, and there is currently no reasonable prospect of fixing it. Our schedule of presidential primaries and caucuses is a mess, giving too much power to an unrepresentative few with undue influence over the party nominees. Because it would require taking on entrenched interests, the Congress, the parties and the states refuse seriously to tackle reform of the nominating system, and plenty of other key parts of politics as well.

Our scheme of campaign financing incorporates the worst of several worlds and deteriorates further with each passing election cycle. Our partisan procedure for drawing legislative districts encourages vicious polarization rather than promoting moderation and compromise. In the end, all these disasters can be traced back to the Constitution–not so much what was included in the text, but some items excluded from it.

Other modern problems include the excessive length of campaigns, the sky-high cost of elections, the almost irrational methods we employ to choose presidential nominees, and the archaic way the Electoral College functions. In all of these fashions, the American political system is inequitable and doesn’t work very well. But it is unfair and doesn’t work well because the Constitution does not contain workable rules to govern it.

If we wanted to point fingers, we could place the blame for this deficiency squarely on the shoulders of the Framers. Yet that would also be unfair. The demands of their time were very different; we now need to redesign the Constitution to accommodate the political needs of our time.

For those of you in and around the Washington, D.C. area, I invite you to our National Constitutional Convention at the Mellon Auditorium this Friday, October 19 from 10am until 5:30pm. With a keynote by Justice Samuel Alito, remarks by former Vice Presidential nominee Geraldine Ferraro and former U.S. Senator Bob Dole, as well as panel discussions moderated by CBS News’ Bob Scheiffer featuring the top political, legal and academic minds in the business, the event is sure to produce some exciting, enlightening discussions about our nation’s governing document. I hope you can attend part or all of the day’s events. For more information, visit www.amoreperfectconstitution.com.

OF PARTIES, PRESIDENTIAL POLITICS, AND THE QUADRENNIAL ORGY

Woodrow Wilson suggested the government was subject to Darwinian evolutionary forces, and he was correct. Over many decades, the parties have evolved to meet the organizational needs of government. Along the way, though, the constitutionally ungoverned parties have also changed to serve their own needs better–and some of those selfish purposes have begun to override those of the citizenry’s.

Political parties are and have always been state-based, because there are no federal constitutional guidelines and strictures on them. The state party committees, in conjunction with the state legislatures, actually set many of the rules for presidential selection, such as whether a primary or a caucus is held in a particular state, and how those events are actually run. With no one at the national level truly in charge, the fifty state political parties on each side (Democratic and Republican) squabble among themselves, initiating internecine battles over the order of presidential selection every four years. Sometimes, the Democratic Party and the Republican Party in some states cannot even agree on a common date for the primary or caucus, so the voters in those states are treated to two separate nomination campaigns within the span of a few weeks or months. In doing so, the state parties promote and serve individual state or party interests over the national interest.

The federal Constitution has been preeminent over the state constitutions since the days of Chief Justice John Marshall, but not so among the political parties, which live in a no-man’s-land–a Wild, Wild West–in law and practice: nationally organized but state-based, fundamentally private associations of like-minded people yet groups with vital public functions (such as the nomination of our highest elected officials). Darwinian evolution is fine for the origin of species, but it is past time for the necessary political institutions called parties to be governed by some sort of federal intelligent design. Only the Constitution can achieve this aim. If any ongoing disaster can prove the point, surely it is the quadrennial orgy of the presidential primary process.

In 1968 there were fifteen presidential primaries, a manageable number spread out over about three months, from March until June. The voters could focus on their task, and often there was enough time between primaries (a couple of weeks or so) for midcourse corrections in the selection of a party nominee, that is, enough time between contests for the momentum of the first primary winner to die down so that voters in the next state could take a fresh look at the contenders. In 2008, over forty state presidential primaries are crammed into a 2-month span.

To make matters worse, in a phenomenon called front-loading, a majority of the states are rushing to the start of the calendar, in order to maximize their impact on the choice of the party nominees. The financial and other benefits are great in securing one of the early spots. The problem here is that the states are now bunched together so tightly that the winner of the first primary or caucus often wins the second, and the third, and the entire nomination simply because of the big momentum generated off the first victory. Some call it a “steamroller,” others a “slingshot,” but the effect is clear: a lightning-quick nomination of that initial victor.

THE REGIONAL LOTTERY PLAN FOR THE NEW CONSTITUTION

The Congress should be constitutionally required to designate four regions of contiguous states (with contiguity waved for Alaska and Hawaii, and any other stray territories that may one day become states), with the boundaries of each region determined by the present state boundaries. All of the states in each region would hold their nominating events in successive months, beginning in April and ending in July. The two major-party conventions would follow in August. This schedule, all by itself, would cut three months off the too-long process currently prevailing in presidential years.

Figure 1. Proposed Regional Map

But how would the order of the regions be determined? In many cases, there would still be a bonus in going first. The establishment of a U.S. Election Lottery, to be held on New Year’s Day of the presidential election year, would yield fairness and also add an element of drama to the beginning of a presidential year. Four color-coded balls, each representing one of the regions, would be loaded into a typical lottery machine, and in short order–the length of a ten-second lottery TV drawing–the regional primary order would be set. Since none of the candidates would know in advance where the political season would begin, part of the permanent presidential campaign would be dismantled.

One additional facet should be added to the plan in order to enhance its effectiveness. The best argument made for Iowa and New Hampshire is that their small populations allow for highly personalized campaigning. The candidates are able to meet individual citizens for lengthy and sometimes repeated conversations about the issues, and these voters are able to size up potential presidents at eye level, without the candidates having the protection of the usual large retinue of image makers and staffers. In that sense, lightly populated states can serve as a useful screening committee for the rest of us.

There is a way to combine the advantages of small-state scrutiny of candidates with the inherent fairness of round-robin regional primaries. We can achieve the best of both worlds by adding a second lottery on January 1. The names of all states with four or fewer members in the U.S. House of Representatives (at present, twenty states) would be placed in a lottery machine, and two balls would be selected. The District of Columbia should be included, and this would mean twenty-one jurisdictions would have a chance to be selected in the second lottery. The two small states (or D.C.) with relatively low populations would lead off the regional contests, and they would be held on or about March 15–at least two full weeks before the initial contests would begin in the first region. These two states would be free to stage a primary or a caucus, and the candidates would be free to participate in none, one, or both. No doubt, all the candidates would rush to these lead-off states right after the lottery on January 1, and they would have two and a half months to campaign. But there would be no permanent, four-year campaigns there, and personalized, one-to-one campaigning would be a large part of the effort.

In sum, this Regional Lottery Plan would achieve many good things simultaneously for a selection process that currently makes little sense. The election campaign would be shortened and focused, a relief to both candidates and voters. All regions and states would get an opportunity to have a substantial impact on the making of the presidential nominees. A rational, nicely arranged schedule would build excitement and citizen involvement in every corner of the country, without sacrificing the personalized scrutiny of candidates for which Iowa and New Hampshire have become justly known. And all of this can only come about by putting the politics of nominations and elections in its proper place–the United States Constitution.

THE ELECTORAL COLLEGE: MEND IT, DON’T END IT

The second half of the presidential electoral process is also in need of constitutional reform. The 2000 election cliffhanger between George W. Bush and Al Gore was only the latest crisis to beset the constitutional mechanism for the election of a president, the Electoral College. There have been other Electoral College controversies, including the presidential elections of 1800 (Thomas Jefferson, John Adams, and Aaron Burr), 1824 (John Quincy Adams, Andrew Jackson, and others), 1876 (Rutherford B. Hayes versus Samuel Tilden), and 1888 (Grover Cleveland versus Benjamin Harrison). In 1824, 1876, and 1888–just as in 2000–the popular vote winner was denied the presidency because of a contrary Electoral College vote. In 1800, 1824, and 1876–just as in 2000–there were political shenanigans of various sorts that further clouded the results.

Moreover, there have been a number of near misses in American presidential history, cases where the nation narrowly avoided great controversy in the final results. In the lifetimes of many Americans, for example, the 1968 and 1976 contests teetered on the edge. In 1968 the 46 electoral votes secured by the segregationist George Wallace of Alabama in Deep South states might well have decided the tight election between Richard Nixon (R) and Hubert Humphrey (D). In the end, Nixon edged Humphrey slightly in the popular vote and secured a modest majority in the Electoral College so that Wallace could not have determined the winner by throwing his electoral votes to one of the candidates. Imagine the consequences had a race-baiter like Wallace been the one to pick a president! In 1976 an addition of just 11,117 votes in Ohio and 7,373 votes in Hawaii for the Republican ticket would have produced a four-year term for President Gerald Ford (R), even though Jimmy Carter (D) would have won the popular vote by a massive 1.7 million. Even in a more decisive popular-vote election like 2004, when President George W. Bush won by 3 million votes nationally and an Electoral College vote of 286 to 252 over the Democrat John F. Kerry, a switch of only 60,000 votes in Ohio would have given Kerry the Buckeye State’s 20 electoral votes and 272 electoral votes overall–and thus, the presidency.

Many analysts and observers of American politics say that this record, and the very real potential for more mayhem in the future, calls for outright abolition of the Electoral College in the next constitutional revision. But these critics ignore some important advantages of the Electoral College–which endures, albeit unloved–and deserves more respect than it gets. At the same time, the current system is inadequate to the needs of the modern Republic, so a proper approach is “Mend it, don’t end it.”

The Founding of a College

Adopted in 1789, before the establishment of political parties and before most citizens had the right to vote, the Electoral College was created for a variety of reasons-some purely political, others based upon principle.

Once instituted, it did not take long for the Electoral College to stir controversy. In 1796 John Adams defeated Thomas Jefferson for the presidency by just three electoral votes, with Jefferson becoming vice president due to his second-place finish. Four years later, Jefferson ran again, against incumbent President Adams. This time around, Jefferson and his ticket mate, Aaron Burr, came out on top in the Electoral College. At that time, each elector voted for two men, and the top two vote-getters were supposed to serve as president and vice president. But the Jefferson electors had voted for both men, so Jefferson and Burr each had 73 of 138 electoral votes. While Burr had been the choice for vice president and not president, his political ambition kept him from stepping aside. It took thirty-six ballots in the U.S. House of Representatives–with votes cast by state delegations as a whole, not by individual members–to select Thomas Jefferson as our third president. This fiasco prompted the Twelfth Amendment to the Constitution, which, among other provisions, requires electors to vote for presidential and vice presidential candidates separately.

More than two centuries later, despite the many controversies that have engulfed presidential elections, the Twelfth Amendment still marks the most significant change to the Electoral College in all of American history–a fact that alone suggests that some rethinking may be in order. In the 1960s, the Twenty-third Amendment granted three electoral votes to the District of Columbia. Other amendments have primarily altered the timing of the electoral vote tabulation and the way in which individual states choose to allocate their electors.

Despite these small changes, the Electoral College today works much as it has since the 1800s. As long as one presidential ticket has received an absolute majority of the electoral votes, the election is over. If no one has received a majority for president and/or for vice president–the Twelfth Amendment requires the separate counting of ballots for each office–then the House of Representatives gathers to elect a president and the Senate to elect a vice president. An absolute majority of the House state delegations, with each delegation voting as a unit and every state–regardless of size–having a single vote, is required to elect a president, and an absolute majority of the Senate is required to elect a vice president.

Whatever one thinks of its origins, development, and complicated operation, the Electoral College has become a fundamental component of our presidential selection system. Campaigns base their strategies upon it, but its impact extends far beyond presidential politics. Should the nation seriously consider altering or eliminating this system, it must carefully examine the true benefits and disadvantages of our current system versus the consequences of any reform proposals. Let’s look first at the positive side of the ledger for the Electoral College.

Advantages of the Electoral College:

Concerns with the Current Electoral College:

Many groups and individuals, including the League of Women Voters, most academics in the field, many members of Congress from both parties, and past presidential candidates insist that the Electoral College should be abolished altogether, in favor of a direct popular vote, perhaps with a runoff between the top two contenders if no candidate receives at least 40 percent of the national vote. Polls since the 1970s consistently show approximately 60 percent of Americans agree with this assessment.

Many proposals for changing the Electoral College, without abolishing the institution, have been made over the centuries. Even James Madison had developed serious doubts about various aspects of the college by 1823 and proposed reform of it. Most of these accumulated proposals are intellectually stimulating, but many are inadequate, with hidden, unintended consequences. Three examples of these plans include Congressional District Allocation, Proportional Allocation and an Electoral College with “Super-electors.”

Reform Approaches That Mend the Electoral College…and Can Work

Having worked their way through this thicket of unwise reforms, the diligent reader must wonder whether any changes can both improve the Electoral College and avoid the unintended consequences that have plagued the earlier proposals. In fact, there are three approaches that, together, can constitute a workable and progressive reform package:

Let’s continue with that third point. If the expansion of the Senate proves politically or constitutionally impossible, there is another sound means to accomplish the very same goal in the Electoral College. The college itself could be directly enlarged, and the new electoral votes distributed among the heavily populated states to more closely reflect actual population. In addition to the 538 electoral votes currently allocated among the nation’s fifty states and the District of Columbia, this proposal would give states additional electoral votes based on their percentage of the national population.

To see the practical implementation of this plan, take a look at Figure 2. A state that has less than 0.5 percent of the national population would keep its current electoral vote total. But states that possess more of the country’s population would be given additional electors. Each state that claims between 0.5 to 2.0 percent of the national population would receive one more elector. An additional electoral vote would also be allocated for each additional percent (or part of a percentage point) of the national population over 2.0 percent.

Figure 2. Growing the Electoral College

State Population Percentage of National Polulation Current Number of Electors Extra Electors Total Number of Electors
Alabama 4,525,275 1.5 9 1 10
Alaska 657,755 0.2 3 3
Arizona 5,739,879 2.0 10 1 11
Arkansas 2,750,000 0.9 6 1 7
California 35,842,038 12.2 55 11 66
Colorado 4,601,821 1.6 9 1 10
Connecticut 3,498,966 1.2 7 1 8
Delaware 830,069 0.3 3 3
District of Columbia 554,239 0.2 3 3
Florida 17,385,430 5.9 27 5 32
Georgia 8,918,129 3.0 15 2 17
Hawaii 1,262,124 0.4 4 4
Idaho 1,395,140 0.5 4 4
Illinois 12,712,016 4.3 21 3 24
Indiana 6,226,537 2.1 11 1 12
Iowa 2,952,904 1.0 7 1 8
Kansas 2,733,697 0.9 6 1 7
Kentucky 4,141,835 1.4 8 1 9
Louisiana 4,506,685 1.5 9 1 10
Maine 1,314,985 0.4 4 4
Maryland 5,561,332 1.9 10 1 11
Massachusetts 6,407,382 2.2 12 1 13
Michigan 10,104,206 3.4 17 2 19
Minnesota 5,096,546 1.7 10 1 11
Mississippi 2,900,768 1.0 6 1 7
Missouri 5,759,532 2.0 11 1 12
Montana 926,920 0.3 3 3
Nebraska 1,747,704 0.6 5 1 6
Nevada 2,322,898 0.8 5 1 6
New Hampshire 1,299,169 0.4 4 4
New Jersey 8,685,166 3.0 15 2 17
New Mexico 1,903,006 0.6 5 1 6
New York 19,280,727 6.6 31 6 37
North Carolina 8,540,468 2.9 15 2 17
North Dakota 636,308 0.2 3 3
Ohio 11,450,143 3.9 20 3 23
Oklahoma 3,523,546 1.2 7 1 8
Oregon 3,591,363 1.2 7 1 8
Pennsylvania 12,394,471 4.2 21 3 24
Rhode Island 1,079,916 0.4 4 4
South Carolina 4,197,892 1.4 8 1 9
South Dakota 770,621 0.3 3 3
Tennessee 5,893,298 2.0 11 1 12
Texas 22,471,549 7.7 34 7 41
Utah 2,420,708 0.8 5 1 6
Vermont 621,233 0.2 3 3
Virginia 7,481,332 2.5 13 2 15
Washington 6,207,046 2.1 11 1 12
West Virginia 1,812,548 0.6 5 1 6
Wisconsin 5,503,533 1.9 10 1 11
Wyoming 505,887 0.2 3 3
TOTAL 293,656,842 100.0 538 74 612

Source: Population totals from U.S. Census, 2004.

This should facilitate passage of the college reform, and voters in the thirty-eight states gaining electors would surely feel a sense of increased empowerment. In all, 67 electors would be added to the 538 in the existing Electoral College, for a total of 605. Budget hawks need not be concerned about the college’s expansion since no monies are expended in the process.

ADDING SOME POLITICAL RULES OF THE GAME FOR THE TWENTY-FIRST CENTURY

The American political system would be significantly improved if we could add these two categories of constitutional reform, one for the presidential nominating process and the other for the Electoral College. The absence of the first and the antiquated design of the second have caused no end of problems as the modern Republic has emerged.

By no means, however, do these two big reforms exhaust the possible agenda for political change. A new Constitutional Convention should take up the issue of campaign finance, even though it is full of sticky threats to First Amendment freedoms. Still, the current prohibition on any spending limit by the wealthy in their own campaigns–which stems from a Supreme Court interpretation of the First Amendment–would be a fit subject for convention discussion. Should the rich be able to spend freely and, in some cases, buy high office, as so many have done in both parties? Some reasonable limitation on the wealthy’s campaign spending would be welcome, by capping the total donations they could make to their own candidacy. A revised Constitution should give Congress the power to do just that. Public financing of congressional campaigns, partial or full, is also the only real alternative to the lobbyist and private interest-group financing that has produced scandal after scandal in Washington and the state capitals. Congress already has the constitutional authority to exact public financing, though as yet they have not exercised it.

And it really does matter whether people vote or not. The simple act of voting connects a person to the political process, gives him or her some skin in the game and encourages a citizen to pay attention. We need to do everything we can, within reason, to get more Americans participating regularly in elections. Even in supposedly “high turnout” presidential contests, 40 to 50 percent of adults fail to show up at the polls in November. The turnouts for state and local offices are even more abysmal. No democracy can truly be termed healthy when so many millions abstain from the most basic duty of citizenship.

In sum, politics will never be popular, and its practitioners will always be maligned, but a well-designed dose of politics is essential for the health of the American Republic. The Founders and Framers mainly avoided the topic in the Constitution, and in their times, little harm was done. This is not true any longer. The absence of a modern political framework in the Constitution for presidential nominations and elections has made the U.S. system one of the least sensible in the world. We can and must do better.

This new book is intended as a spark to ignite a public discussion about constitutional reform, and we want YOU to weigh in with your thoughts! Visit amoreperfectconstitution.com for more information about the ideas, an opportunity to offer comments and even a forum for suggesting your 24th idea for change. Want to join the discussion live and in person? Attend the National Constitutional Convention on October 19 in Washington, D.C.