CAMPAIGN 2004
The Old (Electoral) College Cheer
Why we have it; why we need it
MICHAEL M. UHLMANN
As the late Rodney Dangerfield might say, the Electoral College just don't get no respect. Polls show that most Americans, given the opportunity, would cashier it tomorrow in favor of so-called direct election. That they'd live to regret their decision only reminds us of H. L. Mencken's definition of democracy: a form of government in which the people know what they want, and deserve to get it good and hard. What the people would get by choosing direct election is the disintegration of the state-based two-party system; the rise of numerous factional parties based on region, class, ideology, or cult of personality; radicalized public opinion, frequent runoff elections, widespread electoral fraud, and centralized control of the electoral process; and, ultimately, unstable national government that veers between incompetence and tyrannical caprice. And that's only a partial list.
Dissatisfaction with the electoral-vote system has been a staple of populist rhetoric ever since presidential elections became fully democratized in the 1820s. More than 700 constitutional amendments have been introduced to change the system — by far the greatest number on any subject — and although reform prescriptions have varied greatly in detail, their common assumption has always been that our electoral rules prevent the true voice of the people from being heard.
But what is the "true voice" of the people? Public sentiment can be expressed and measured in any number of ways, but not all are conducive to securing rights. If ascertaining the consent of the people were only a matter of counting heads until you got to 50 percent plus one, we could dispense with most of the distinctive features of the Constitution — not only electoral votes, but also federalism, the separation of powers, bicameralism, and staggered elections. All of these devices depart from simple majoritarianism, and for good reason: Men do not suddenly become angels when they acquire the right to vote; an electoral majority can be just as tyrannical as autocratic kings or corrupt oligarchs.
The Founders believed that while the selfish proclivities of human nature could not be eliminated, their baleful effects could be mitigated by a properly designed constitutional structure. Although the Constitution recognizes no other source of authority than the people, it takes pains to shape and channel popular consent in very particular ways. Thomas Jefferson perfectly captured the Framers' intent in his First Inaugural Address: "All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate which would be oppression." By reasonable majorities, Jefferson meant those that would reflect popular sentiment but, by the very manner of their composition, would be unable or unlikely to suppress the rights and interests of those in the minority. Accordingly, the Constitution understands elections not as ends in themselves, but as a means of securing limited government and equal rights for all.
The presidential election system helps to form reasonable majorities through the interaction of its three distinguishing attributes: the distribution and apportionment of electoral votes in accordance with the federal principle; the requirement that the winner garner a majority of electoral votes; and the custom (followed by 48 of 50 states) of awarding all of a state's electoral votes to the popular-vote victor within that state. Working together, these features link the presidency to the federal system, discourage third parties, and induce moderation on the part of candidates and interest groups alike. No candidate can win without a broad national coalition, assembled state by state yet compelled to transcend narrow geographic, economic, and social interests.
Reformers tend to assume that the mode of the presidential election can be changed without affecting anything else. Not so. As Sen. John F. Kennedy argued in the 1950s, by changing the method of the presidential election, you change not only the presidency but the entire political solar system of which it is an integral part. The presidency is at once the apex of our constitutional structure and the grand prize of the party system. Our method of selecting a president is the linchpin that holds both together. Capturing the presidency is the principal raison d'tre of our political parties, whose structure, thanks to the electoral-vote system, mirrors the uniquely federal structure of the Constitution. This means that two-party competition is the norm; in a country of America's size and diversity, that is no small virtue.
With (for the most part) only two parties in contention, the major candidates are forced to appeal to most of the same voters. This drives them both toward the center, moderates their campaign rhetoric, and helps the winner to govern more effectively once in office. Many factional interests, for their part, are under a reciprocal inducement to buy insurance with both sides, meaning the compromises necessary for successful rule will be made prior to and not after the election. Moreover, by making the states the principal electoral battlegrounds, the current system tends to insulate the nation against the effects of local voting fraud. All in all, the current system forces the ambitions of presidential candidates into the same constitutional mold that defines and tempers American political life as a whole. It thereby prevents the presidency from becoming a potentially dangerous tutelary force separate and apart from the rest of the Constitution's structure.
These and other salutary consequences would disappear under direct election, whose deceptive simplicities mask its truly radical character. If President Bush wins the 2004 electoral vote without a popular-vote plurality, you can be certain that the enactment of direct election will become a principal mission of the Democrats. And it may well become their mantra even if John Kerry wins. We came perilously close to enacting direct election following the 1968 contest, when George Wallace's third-party candidacy shattered the New Deal coalition of big-city machines and the one-party South. Fearing the long-run effects of Republican competition in the New South, Democrats tried to change the rules to their advantage. They will do so again as soon as the opportunity seems propitious, which it will if this year's election resembles 2000's.
In 1969, as President Nixon dithered and eventually ducked, direct election passed the House by a sizeable constitutional majority — including many Republicans who ought to have known better. But for a small and determined group of conservative Democratic and Republican senators who filibustered it to death, direct election would have been presented to the states in an atmosphere that greatly favored ratification. Sensible heads may prevail in today's Republican-controlled House, but don't count on it: On matters of electoral reform especially, congressmen have little stomach for resisting populist enthusiasms. A House that rolled over for McCain-Feingold, which enjoyed only mild public support, will not likely oppose the clamor for direct election. As for today's Senate, one would be hard pressed to identify a band of constitutional stalwarts comparable to those who courageously resisted popular currents in 1970. The next few years, in short, may test whether our nation has the patience or wisdom to preserve the delicate balances of our constitutional solar system.
Proponents of direct election indict those delicate balances for being "undemocratic." That is true only in the most superficial sense. If the Electoral College is undemocratic, so are federalism, the United States Senate, and the procedure for constitutional amendment. So is bicameralism and, for that matter, the separation of powers, which among other things authorizes an unelected judiciary. These constitutional devices were once widely understood to be the very heart and soul of the effort to form reasonable majorities. If all you care about is the achievement of mathematical equality in presidential elections, and if to achieve that goal you're willing to eliminate the states' role in presidential elections, what other "undemocratic" features of the Constitution are you also willing to destroy? And when you're done hacking your way through the Constitution, what guarantee can you give that your mathematically equal majorities can be restrained? How will you constrain the ambitions of presidents who claim to be the only authentic voice of the people?
The current system teaches us that the character of a majority is more important than its size alone. Americans ought to care about whether the winner's support is spread across a broad geographic area and a wide spectrum of interests. That is what enables presidents to govern more effectively — and what encourages them to govern more justly than they would if their majority were gathered from, say, an aggregation of heavy population centers. By ensuring that the winner's majority reflects the diversity of our uniquely federated republic, the current system also assures his opposition that it will not have to fear for its life, liberty, or property. Direct election can provide no such assurance and may, in fact, guarantee just the opposite.
Mr. Uhlmann teaches politics and policy at the Claremont Graduate University.