Thursday, July 12, 2018

DEMOCRACY: THREATENED OR THREATENING? - Part II - Presidential Electors

These posts are not concerned with the U.S. Constitution in its entirety but rather with the distillation effect it has on its democratic process. In this post, I will consider  the inherent vulnerabilities in the democratic process found in U.S. Constitution as they relate to presidential elections.

In my last post, the U.S. Constitution was likened to a distillery in which the voice or will of the people is refined as it moves through the various levels of government.  I also noted that while the Constitution acts as a refinery that defines the democratic process, democracy has a way of shaping the Constitution itself.  This is both necessary and problematic.

I am not a fan of constitutional originalism.  Treating the Constitution as if it is the inerrant Word of God is constitutional blasphemy.  Trying to concretize every word and punctuation mark in the articles and in the amendments of the Constitution as the infallible and unquestionable meaning of the text neuters the Constitution's fecundity.

The intent of the Constitution is clearly stated in the Preamble. It is the Preamble that serves as the touchstone by which anything in the Constitution and any issue related to the Constitution must be tested.

Having said that does not dismiss the value of considering what the framers intended  by the democratic process they defined by creating the Constitution.   The value of such consideration is  whether within the original ratified format there is something pragmatic to be garnered from what appears ambiguous in its historical context that has more application today then it did when  conceived.

It is obvious the framers did not have all the answers nor could they foresee all the pitfalls that would arise over time.  Their brilliance is that they didn't try to do the impossible but rather intended to give shape to something that would take shape, and therein lies the Constitution's strength and durability.

THE INADVERTANT WEAKNESS OF THE "ELECTORAL COLLEGE"

This brings one back to the topic at hand, the democratic process. What has proven to be the greatest vulnerability within the Constitution is in the democratic process, as it relates to electing the U.S. President.

I believe the framers of the Constitution were on to something that could have spared us the presidential dilemma we, in the United States, find ourselves in from time to time had they better defined electoral process for choosing a president.  I am not finding fault with them.  They were writing in an age when the nation was hardly a nation; when the various states had more loyalty from their citizens than the United States did as a whole.

It made sense, at the time, to allow each state to determine who their presidential electors would be.  The framers were on a tight-rope trying to hold a tenuous union together.  It proved to be a balancing act; hoping that wise minds in the various states would prevail in choosing able executive leaders.

Early presidential elections were messy affairs with the President and Vice President frequently representing opposing political and ideological views.   Presidential campaigns became partisan from the beginning and the choice of electors unfortunately fell in line with this partisan trend.

The issue of the President/Vice President divide was resolved by the creation of the party ticket in which each presidential candidate chose a running mate for Vice President. The practice of electors electing the nominated ticket winning their state's presidential election was to certify their votes by separately electing each person on the ticket as a formal nod to the Constitution's requirement.

The number of electors each state has is based on the number of representatives and senators each state sends to Washington D.C..   Currently there are 538 electors with three representing the District of Columbia. Unfortunately,electors are wedded to presidential  nominees.  With the exception of Maine and Nebraska, who assign electors based on which nominees win a congressional district of their state, all other states use a winner-takes-all approach to choosing who their electors are.

As a result, presidential campaigns are huge affairs because the popular vote in each state determines its electors.  Technically, the voters are voting for electors, but most average voters don't have that in mind when they go to the ballot box.  In fact, some states no longer require that the electors names are printed next to party's nominated ticket.   As such, the role of the elector is more a matter of form than function.

This has led many voters in the United States to advocate for the abolition of what is known as the Electoral College in favor of a strict popular vote for president.   Democracy trends towards favoring the popular or majority position regardless if that position is the result of well-informed voters or not.  This is what concerned the framers of the Constitution.  A strict popular vote for a singular executive position like  a president lends itself to populism and populism tends towards sensationalism, popularity, and the selection of a savior figure or demagogue to rule the moment.

VOICES FROM THE PAST

It's worth listening to the voices of some of our founding fathers with regard to the problems they saw with selecting a president by strict popular vote.  In the The Federalists Papers No. 68 , Alexander Hamilton expressed concern about electing someone to such a high office who possessed the qualities of being drawn to "low intrigue" and prone to exercising, "the little arts of popularity."  No wonder that the current administration has little appreciation for the musical, "Hamilton."

James Madison in Federalist Paper No. 10 was concerned with an " interested and overbearing majority" and "the mischiefs of faction  ...who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to  the permanent and aggregate interest of the community."

Unfortunately, the Electoral College has long ceased to have a meaningful function apart from ratifying a state's popular vote.  It does not prevent populism from dominating an election season by rising above the influence of faction in order to discern who best would serve this nation's needs and who best would protect and defend the Constitution of the United States.

THE WEDDED BLISS OF DEMOCRACY AND CAPITALISM

The election of a president also provides "key" states - states with more electors  to shape the executive branch of the federal government; thus some smaller states jockey for influential primacy by holding their primaries early to set the nominee stage and give emphasis to that state's importance. This not only makes political sense, but offers a boost to that state's economy via campaign spending.

The idea of campaign reform; particularly, with regard to presidential campaigns has been a can kicked around for at least two decades.  Yet, there appears to be no incentive to do so. In fact corporate money, via Supreme Court decision, is given its own voice in fostering  campaigns.  No where else is capitalism and democracy so wedded as in a United States presidential campaign.

The reason this marriage between money and presidential campaigns is so prominent is the need to prompt the popular vote in a given state to secure its electoral votes. This results in a media blitz of information and misinformation.  Without trying to be cynical, most presidential elections are not determined by who has the best credentials to be president, but who has the best charisma, who makes the people feel most hopeful, who has the least political baggage, and most importantly (in recent elections) who is the least scary.

CONSTITUTIONAL CRISIS IN THE MAKING

It would appear that the vast majority of voters have very little interest in whether a nominee is devoted to the Constitution he or she is sworn to defend.  This is not say that those who have taken that Oath of Office were not serious about defending the Constitution.  We have been fortunate, for the most part, that most presidents throughout U.S. history were.

The 2016  Presidential election, however, has exposed the vulnerabilities the Constitution has with regard to distilling the democratic process in electing the President.   The 2016 election is likely to go down in history as the election that exposed a constitutional crisis that has been brewing for some time.

If the Constitution was designed to be a distillery of the democratic process, as I proposed in my previous post, it's weakest filter was in its lack of definition regarding the role of electors in choosing the President and the Vice President. If the intent of designating electors from each state was to reduce the influence of populist passions on the holder of this high office, it failed at the state level.

Since lacking specific constitutional duties, the role of the elector has been to act as a rubber stamp in validating the selection of the ticket that won their state's presidential election.  Being tied to a political party's nominee, they really serve no other personal function than their position being tallied in determining who has won the requisite number of electoral votes to be the next president.

Yes, electors can dissent or refuse to cast their vote, but there is no true collegiality amongst them as a "college" of electors; no coming together as a group to debate or discern whether the person who  won their state's popular or indeed won the nation's popular vote merits their personal vote and most importantly no duty to ensure the most qualified nominee is selected as the President.  It is no wonder that many Americans are in favor of eliminating electors altogether and simply choosing a president by popular vote alone. As it stands , the electoral vote is seen as a manipulative device used by political parties to get around the popular vote.

What seems to have been the original intent in identifying electors is based, in my opinion, upon the democratic process that was shaped by the Constitution.  What is derived from that view would indicate that the selection of a president and vice president by electors was originally intended to be a relatively non-partisan decision.

This  lack of constitutional definition regarding the responsibilities of the electors has rendered the Constitution vulnerable and has led to increasingly unscrupulous campaign behavior by both major parties that has reached a pinnacle beginning in the 2000 presidential election where paper chads on the Florida presidential ballots resulted the election being decided by the Supreme Court.  In 2016, we have seen how vulnerable an election of the President is to foreign influence, especially when the election takes a populist turn.

It seems reasonable then that most Americans are increasingly in favor of the Electoral College's elimination and would prefer to choose presidents by strict popular vote.  The problem with the "Electoral College" is that few, if any, care whether the electors have a direct, constitutional function in choosing a president.

WHAT IF?

I, for one (and maybe I'm the only one), believe that President should be elected by independent electors whose sole job is to ensure that the persons elected as President and Vice President possess the qualities necessary to fulfill  the executive needs of the nation.  I am not advocating that the voting public should have no say in who is elected.  They must have a say to the extent that nominees are chosen, but once chosen, the public campaign should end and the Electoral College's serious work begins. Being that such work was left largely undefined now would be a good time to define the job of an elector as vetting and selecting the persons best suited for these high offices.

In my next post, I will ponder some views as to how this might work.

Until next time, stay faithful.

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