...con't. Part Three
5. Bargaining. Representatives overwhelmed by the absence
or multiplicity of heavenly hints and rational solutions alike may
decide that self-interest is the better part of politics and vote for
the candidate making them the offer they find hardest to refuse.
And many representatives may each be in a position to deliver
or withhold the presidency as their half of the bargain. In 1912,
Teddy Roosevelt's Bull Moose party split the Republicans and
finished second. If that election had gone to the House, each of
thirty-two different representatives would have held the power
to change an entire state's vote by switching his own. In the
1924 election, when Robert La Follette's Progressive party
won 17 percent of the popular total, each of eighteen states
pivoted on one vote; in those states, forty-five Democrats and
twenty-five Republicans individually held the balance of power.
In 1948, a Truman-Dewey-Thurmond runoff would have been
required had 12,000 votes shifted in California and Ohio, and
twenty-three state delegations would have turned on one
member's vote; sixty-five Republicans and thirty-three
Democrats each had the power to deliver an entire state. And
if the Ninety-seventh Congress duplicates the Ninety-sixth,
twenty-eight state delegations this time will be held by a
one-vote margin and eleven state delegations by just two votes
each.
Bargaining, of course, can be portrayed either as sensible
compromise or as dirty dealing. Both Presidents elected by the
House, Thomas Jefferson and John Quincy Adams,
passionately denied that any deals were made. After
Delaware's lone representative, James Bayard, gave Jefferson
his 1801 victory, the new President kept certain Federalist
officeholders, as Bayard had been promised, but insisted that
he had made no promise to Bayard that he had to keep. Two
years later, in congressional testimony, Bayard named the four
offices that Jefferson had delivered as pledged. When Adams
carried the House with Henry Clay's support in 1825, the
appointment of Clay as secretary of state was quickly seen as
proof of a "corrupt bargain." Clay had met with Adams for
three hours at his home and had emerged as Adams's ally. No
one can be certain what the two men said, but both of them
must have been tempted to strike a deal, explicit or implicit.
Adams had only to say that Clay was the logical choice for the
State Department which was true. Clay, in turn, had only to
state his feelings -- that he preferred Adams because he feared
the alternatives: Andrew Jackson was a warmonger, and
William Crawford had been crippled by a drug overdose
during the campaign. Though they furiously denounced the
charge that a "corrupt bargain" had been struck, Adams and
Clay could never escape it.
Whether deals are made or not, a loser in the House will
probably allege and the people will probably believe that the
winner made one.
"Deal" is a bad word, but not all deals are created equal.
Depending upon the observer's point of view, they can seem
good or evil. If the 1948 election had been decided in the
House, four southern states controlled by the Dixiecrats could
have made a majority for either Truman or Dewey. The price
they exacted would have been an immoral weakening of civil
rights -- which was the price Rutherford Hayes gladly paid in
1877. But the Compromise of 1877 was not everywhere
regarded as a hidden and awful bargain. The New York
Herald called it an "open secret." The Memphis Avalanche
insisted in an editorial: "There is no bargain in this movement. It
is a policy." In 1980, women in the house could agree to
support Reagan if, for example, he dropped his commitment to
a constitutional amendment outlawing abortion. Deals are
generally unpopular -- except with the people who are being
dealt in. George Wallace called the deal he offered in 1968 "a
solemn covenant."
A House divided
While a refusal to trade for votes may be noble, it may also
leave us without an elected President. Many of the elections
that nearly went to the House could have deadlocked in just
this way. The 1860 election narrowly avoided a House
decision among Republican Abraham Lincoln, Southern
Democrat John Breckinridge, and John Bell of the
Constitutional Union party. The House that year was split 17 to
15 in favor of the Democrats; one delegation was evenly
divided; and the American party controlled the Tennessee vote.
Without some bargain, there might have been no decision at all
on the very eve of the Civil War. In 1912, when Woodrow
Wilson prevailed against William Howard Taft and Theodore
Roosevelt ran as an independent, the House was split 23 to 22
for the Democrats, with three delegations divided equally. In
1948, as in 1960 and 1968, the Democrats controlled the
House, but only by virtue of southern delegations that could
readily have voted for the more conservative candidate -- the
Republican.
In 1981, it is entirely possible that the House could deadlock.
Some strongly Democratic states, such as Massachusetts and
New Jersey, could vote for John Anderson on November 4
and their representatives might feel compelled to go along. At
the same time, the national shift to the right favors Republican
House candidates this year. Republican leaders hope to gain at
least thirty House seats in November. The July 1980 ABC
News-Harris poll showed the Republicans leading the
Democrats by 47 to 43 percent in the race for the House -- the
first time since 1952 that the Republicans have been ahead. In
six southern states, a gain of one Republican seat would give
the Republicans a majority or divide the delegations evenly. As
matters stand, with twenty-six states needed to elect, only
twenty-one are now clearly Democratic, eight are narrowly
Democratic, nine divide evenly, and twelve are Republican.
These numbers show that 1981 could be the year when
democracy deadlocks.
In 1801, the House voted thirty-five times without breaking the
stalemate. In 1877, the debate in the House came within
twenty-four hours of delaying the selection of a President until
after Inauguration Day. If the House does not choose a
President by noon on January 20, 1981, then the Vice
President becomes Acting President. But if there is no electoral
majority for President, there will probably be none for Vice
President either, and the Senate will then have to choose the
Vice President from among the top two finishers. As with the
choice of a President by the House, all states would have the
same number of votes. Indeed, voting in the Senate -- one vote
per senator -- may be even less democratic than in the House,
since two thirds of the Senate will have been elected in prior
years.
The Senate has chosen a Vice President only once, in 1837.
Virginia's twenty-three Democratic electors refused to vote for
the Democratic vice-presidential candidate, Richard M.
Johnson, because he had a longstanding romantic involvement
with a black woman. Justice Catron wrote to Andrew Jackson
that "the idea of our voting for him is loathed beyond anything
that has occurred with us since we have begun to act in concert
with our sister states on national policy." The Senate elected
Johnson, but a President was already in office. If the
presidency had gone to the House, and if there had been a
deadlock, our Acting President in 1861 would have been
Joseph Lane; in 1913, Thomas R. Marshall; in 1925, Charles
W. Bryan; in 1949, Alben W. Barkley; in 1961, Lyndon
Baines Johnson; in 1969, Edmund Muskie.
In 1981, the Acting President could be Walter Mondale -- or
George Bush, or John Anderson's running mate. Indeed,
Bush's chances in the Senate could be better than Reagan's in
the House, since the Republicans need to win only nine seats
from vulnerable Democratic incumbents to control the Senate.
It is not likely, but there is more than an outside chance of a
Republican Senate.
President for a day -- or for four years
One combined effect of the Twelfth and Twentieth
Amendments is that the House could go on voting, with
interruptions for other business and indeed with an infusion of
new members in midterm, for four full years. Imagine an acting
presidency subject to termination at any time until the House
deadlock is finally broken. That would transform the American
government into a quasi-parliamentary system. As matters
stand in 1980, any disgruntled House member from any of
twenty-eight states could threaten to switch his or her vote --
and thereby turn the Acting President back into a lowly Vice
President again. The desire to be more than the spare tire of
the executive branch could leave an Acting President open to
constitutional blackmail. This seems at best a freakish
approximation of parliamentary rule, and it would give
unprecedented weight to the demands of the narrowest
possible interests. But it is conceivable that even such a system
could muddle through -- at least until the 1982 congressional
elections, which would become hybrid parliamentary votes.
Thus, a vote for Republican representatives would be a vote
for Reagan; for Democratic representatives, a vote for Carter.
Anderson might sponsor his own slate of independent
candidates. Thus the deadlock could be broken -- or
prolonged.
The succession
Because senators vote for Vice President individually rather
than by state, the odds of deadlock in the Senate are slim, but
it could happen there, too. The majority party in the Senate
might want someone other than the top two vice-presidential
finishers to act as President. To achieve that goal, thirty-four
senators need only absent themselves so as to block a quorum.
And even fewer abstentions, of course, could deprive both
leading candidates of the 51 votes needed for a majority. At
that point, the succession statutes would be triggered. House
Speaker Tip O'Neill would be first in line if he was willing to
resign from Congress, followed by the seventy-five-year-old
Warren Magnuson, president pro tempore of the Senate, and
then Edmund Muskie, Jimmy Carter's secretary of state.
In 1800, the Federalists considered a plan to refuse to vote at
all for Jefferson or Burr and to appoint a Federalist president
pro tempore of the Senate who would act as President
indefinitely. But if Congress tries to change the succession
statutes in this election season, the members will face the same
two hurdles that frustrated the Federalists in 1800. In his role
as president of the Senate until January 20, 1981, Vice
President Mondale could rule any such scheme out of order, as
Vice President Thomas Jefferson vowed he would do in 1800.
And Carter, still President until noon on January 20, could
threaten to veto any such statute, as John Adams would not
pledge to do in 1800. The two-thirds vote needed to override
him might prove impossible to muster.
The common sense of uncommon elections
In 1823, two decades after he was chosen President by the
House, Thomas Jefferson wrote: "I have ever considered the
constitutional mode of election ultimately by the legislature
voting by states as the most dangerous blot on our
Constitution, and one which by some unlucky chance will some
day hit." That "unlucky chance" hit just two years later -- when
John Adams was accused of buying the presidency from Henry
Clay. And surely there are good reasons to question the
wisdom of a procedure through which a candidate can win the
presidency by carrying the votes of fifty-nine representatives
from the twenty-six smallest states while losing the votes of the
other 376 members -- fully 86 percent of the House. The five
smallest states, with a combined population of just over 2
million and with only five representatives, would enjoy as much
influence in a House election as the five largest states, with a
combined population of over 72 million and 153
representatives.
But the conjuring of such horrors reflects theoretical
possibilities, not political realities. Why would the small states
band together? They have widely divergent interests. They
span the continent from Alaska to South Carolina, from Maine
to Arizona. Freakish coalitions cannot be ruled out; but
constitutions designed to be fail-safe against the remotest
contingencies are unlikely to prove fit for the workaday world.
In truth, what we have learned to live with in the presidential
selection system is a complicated process, rich in possibilities
for high statesmanship and low politics alike. Do the voters
necessarily lose in this byzantine game? Must democracy get
lost in it? Should we heed the demands to amend the
Constitution to prevent House elections -- replacing them with
popular-vote runoffs, or even replacing the Electoral College
itself with some other system? Whatever the answer, the
question is moot this election year. Realistically, no amendment
could be ratified by November 4. But even if it could,
experience counsels caution in changing the Constitution's
fundamental design, moved by what are at worst hypothetical
fears and contingent anxieties. The Electoral College persists
despite repeated challenge both because we know how it
works and because we know how it distributes power. That it
is not congruent with pure democracy or majority rule is true
enough, but certainly is not decisive. Majority rule was not an
absolute principle of self-evident wisdom to the Founders, nor
should it be for us. Apart from the Constitution's many
substantive constraints upon majorities -- constraints such as
those in the Bill of Rights -- it is worth recalling, with Walter
Lippmann, that the Founders thought of the people "as having
many dimensions in time, space, and quality ... The Founders
sought to approximate a true representation of the people by
providing many different ways of counting heads."
Choosing Presidents by popular vote, either initially or to break
ties when no electoral majority has been won, would shift
power away from urban states, with their concentrations of
minority groups, at the same time that such states remain
permanently under-represented, on a per capita basis, in the
Senate. As John Kennedy argued in 1956 on the Senate floor:
"It is not only the unit vote for the presidency we are talking
about, but a whole solar system of governmental power. If it is
proposed to change the balance of power of one of the
elements of the solar system, it is necessary to consider all the
others." Beyond that, any system that made presidential
choices depend on national popular vote totals would put a
premium on the size of a candidate's plurality in every city and
town, encouraging both voter fraud and morning-after
challenge. And holding a national runoff election between the
top two finishers if no candidate achieves a minimum of 40
percent of the popular vote, as Senator Birch Bayh has
proposed, would invite a proliferation of fourth and fifth parties,
each trying to bootstrap its base of support into a berth in the
two-way presidential sweepstakes. American politics could
thus become a grotesque parody of European pluralism.
Nor is it clear that the House election procedure, rickety and
peculiar as it seems, must ill serve the public will. In three-or
four-way elections in which no candidate wins an electoral or
popular majority, how can we know who the voters' second
choices would have been? The House may be the best place
for such second preferences to be determined. Moreover, in a
year when the voters are divided and no one candidate can
claim to "represent" most of the country, a House election can
serve as a forum for compromise -- as a force for unity when
an unqualified triumph for a minority faction would only
increase the divisions that made a majority victory impossible in
the first place. "Deals" that make national unity possible can be
matters of policy and not personal advantage.
The experience of openly recognized division followed by
deliberation and eventual reconciliation can itself be a source of
release, catharsis, and reunion. Jefferson wrote after the crisis
of 1800: "I am persuaded that weeks of ill-judged conduct
here has strengthened us more than years of prudent and
conciliatory administration could have done." Close presidential
elections do not cause the tensions that divide us; they reflect
these tensions and provide both a ritual and a forum through
which the underlying conflicts can be mediated -- and even
resolved.
In any case, it is pointless and counterproductive to declaim in
advance that a House election would represent a constitutional
crisis that voters should seek to avoid by casting their lot with
the front-runner. Prophecies of crisis may easily become
self-fulfilling, and no strategy to avoid such crisis is likely to be
very secure anyway. Besides, campaigns have played on such
fears too often. In 1924, editor George Harvey wrote an
influential article in the North American Review arguing that
Robert La Follette's third-party candidacy would throw the
election into the House, which would deadlock, resulting in the
election by the Democratic Senate of Charles W. Bryan, the
younger brother of the "populistic and pacifistic" William
Jennings Bryan, "who unquestionably would continue to act as
his guide and counsellor." The Republicans developed a bizarre
campaign cry: "A vote for La Follette is a vote for Bryan and a
vote for Davis is a vote for Bryan. A vote for Coolidge is a
vote for Coolidge." Coolidge won. In 1968, Richard Nixon
deployed the same argument in the southern states -- a vote for
Wallace was a wasted vote and, worse, a vote for Wallace
might elect Humphrey by denying Nixon an electoral majority
and leaving the election to the House.
The point is hardly to extol the virtues of presidential election
by the House; any such election has its costs and risks. The
point is simply to regain a measure of perspective. The strategy
of winning votes by generating fear about the process itself not
only makes the tragic view of a House election a self-executing
perception; it could also scare a majority of voters out of
casting ballots for the third-party or independent candidate
who might represent their first choice for the presidency, and
the best chance to revitalize the major parties and restore
legitimacy and unified leadership to the national government.
Afraid that their votes for the independent candidate they favor
would actually be votes for the party candidate they like least,
a majority may vote for the other party's nominee -- as a
second best compromise. And afraid that votes for anyone but
the front-runner would actually be votes for a House election,
many may even vote for their third choice rather than their first
or second -- to avoid getting the wild card of an Acting
President.
In his 1933 presidential address to the Organization of
American Historians, Professor John D. Hicks argued that "in a
remarkable number of instances, third parties marked out in
advance the course that later on the nation was to follow. The
supporter of third-party tickets need not worry, therefore,
when he is told, as he surely will be told, that he is 'throwing his
vote away.' [A] backward glance through American history
would seem to indicate that his kind of vote is after all probably
the most powerful vote that has ever been cast." How ironic it
would be if the exaggerated fear of an election by the House
robbed us, in the end, of an election by the people. |
