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Has the Electoral College Flunked Out?

THINK TANK

WITH HOST: BEN WATTENBERG

SATURDAY, NOVEMBER 18, 2000

ANNOUNCER: Funding for Think Tank is provided by the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, the Smith Richardson Foundation, and the Donner Canadian Foundation.

(Musical break.)

MR. WATTENBERG: Hello, I'm Ben Wattenberg. The year 2000 presidential election has focused attention on one of our least understood constitutional traditions, the Electoral College. What purpose does the college serve, and what would happen if we got rid of it. To find out Think Tank is joined by: Walter Berns, resident scholar at the American Enterprise Institute, and editor of After the People Vote, A Guide to the Electoral College, and E.J. Dionne, senior fellow in governmental studies at the Brookings Institution, and an op-ed columnist for the Washington Post. The topic before the house, has the Electoral College flunked out, this week on Think Tank.

(Musical break.)

MR. WATTENBERG: When the framers of the Constitution set out to design a system of electing a president, their main concern was to hold together a large and often fractious union of states. They decided against direct popular elections, and instead came up with what we know as the Electoral College. The system works more or less like this. Each state gets as many electoral votes as it has members of Congress. The State of Michigan, for example, has two senators and 16 members of the House of Representatives, it therefore has 18 electoral votes. If a presidential candidate wins a state's popular vote, he is awarded all the electoral votes for that state. The candidate who wins a majority of electoral votes nationwide is awarded the presidency.

Usually the system functions without incident, the winner of the popular vote has almost always won the electoral vote, too. But, on a few occasions, in 1824, 1876, and 1888, the winner of the popular vote failed to win a majority of electoral votes, typically engendering fierce controversy. The 2000 election has incited debate about the system once again.

Gentlemen, thank you for joining us. Walter Berns, I guess you know about as much of constitutional history as any man in this country, maybe on this planet, and are so regarded. Why don't you tell us -- let's do a little history lesson first, and then talk about possible reforms. What was going through their mind, the framers, when they did this whole thing?

MR. BERNS: Why don't I start by correcting you, that's a good place to begin. It's not true that in every state the winner takes all. There are two states, Maine and Nebraska, that divide the electoral vote.

MR. WATTENBERG: That's winner take all by congressional district, it's still not a popular count, is that right?

MR. BERNS: Well, in Maine, for example, there's one district, then another district, and then there's the overall -- the winner take all at large in the state. So it's possible for the Maine electoral vote to be divided, as in Nebraska. With that aside, okay.

Beyond that, direct popular vote was not the only alternative to the Electoral College system. I mean, for example, in the 1787 Constitutional Convention the question was almost from the beginning, when they first met in May, there was a proposal for choosing the executive, and they didn't finally settle this matter until the end in September. There was one proposal that the states choose -- the state governors, or state legislatures choose the electorates. There was another that the president or the executive be chosen by the Congress. There were objections to each of these.

MR. WATTENBERG: Did anyone suggest that the raw popular vote be used?

MR. BERNS: Yes, that was an alternative, too. The objection to that was mainly that the people in one part of the country would not know the qualifications of politicians or possible candidates for the president in another part of the country. For example, the people of Georgia would not know the qualifications of someone in Massachusetts and vice versa. And it was understood then that these electors would be people active in public life, and they would be more likely to know national candidates, people from all over the place.

And that, of course, is one reason that does not obtain today, because today with our communications nationwide, and so forth, we know about everybody all over the place.

MR. WATTENBERG: Yes, we know a lot of things that aren't true, also. We knew at 7:45 p.m. on election night that Al Gore won Florida, which he had not, while the polls were still open in Florida.

MR. BERNS: Yes, and especially in the panhandle, which is in a different time zone, which had the effect of discouraging people to go to the polls in that area of the state, presumably.

MR. WATTENBERG: Perhaps.

MR. BERNS: But, at any rate, has the Electoral College flunked out this year, is that your term?

MR. WATTENBERG: Yes, sir.

MR. BERNS: As a matter of fact it seems to me that we should regard the Electoral College as a blessed institution right now. Just think what would happen this year in the system of direct popular election. We had approximately 100 million people vote.

MR. WATTENBERG: You would have 51 Floridas, the 50 states plus the District of Columbia, right.

MR. BERNS: That's my point; of those 100 million we have a difference of about 200,000, at latest count.

MR. WATTENBERG: And perhaps closing.

MR. BERNS: We are now recounting in one state. Under a system of direct popular elections we would have to be recounting all over the country.

MR. WATTENBERG: E.J., first, did Walter give the history pretty well correctly?

MR. DIONNE: Right. Well, first of all, it's an honor to be here with Walter Berns. And I think what he said about the original purpose of the Electoral College is what for me now gives me pause. And I must have changed my view on this because of this election, because I think it's not simply that one candidate might win the popular vote and lose the electoral vote. I think we'd probably accept that the way we -- in fact, I'm sure we'd accept that the way we accepted it in 1888. It's the lethal combination of a very close popular vote, with a state that could decide the election, where it's own vote is in controversy. And it reminds us that we have this very peculiar set of institutions where the president is really seen as a national figure. When George Bush wanted to sue on this he went to federal court, this a great advocate of state's rights. And I think that showed the ambiguities.

MR. WATTENBERG: Nothing snippy, E.J.

MR. DIONNE: That's not a political point about George Bush. It's about the ambiguous view of the role of the presidency. When Professor Berns talked about what the electors were for in the first place he was right. We view as a way of having, if you will, a group of qualified people who were in some sense a deliberative body. The Electoral College is no longer a deliberative body, and what you have is majoritarianism ruling on the state level, except for Nebraska and Maine they're all winner take all. And so it doesn't even temper majoritarianism which as --

MR. WATTENBERG: First of all, I think, that's the point I tried to make, even Maine and Nebraska are winner take all. They're winner take all within the CDs and within the states. In other words, even Maine and Nebraska avoid the central problem that Walter I believe was trying to make, which is if you think you've got problems with one Florida, imagine if you had 51 Floridas where every single vote -- it's a popular vote. Suppose the vote comes out that Bush wins by one vote.

MR. DIONNE: No, I think as a practical matter that is --

MR. WATTENBERG: And you start recounting in 51 states, 100 million votes, he didn't punch it, it's four corners, it's three corners, I got the wrong this, I was drunk, whatever.

MR. DIONNE: No, I agree that of all the practical objections I've heard over the last week to popular elections I believe that is the most substantive. But, there is a famous Walter Berns principle, which is constitutionalism tempers majoritarianism. The idea is, we don't believe majority should be able to decide everything, in particular we don't believe the majority should be able to overturn our individual and communal rights.

MR. BERNS: I never used that formula, but it's good. Thanks, I'll use it.

MR. DIONNE: Is that a fair -- and the Electoral College doesn't actually creates a kind of perverse majoritarianism, because we have a national vote which we all know about, and then if one state tips by a couple of hundred votes, that simple majority in that one state overturns the national result. When you have a combination like this is when you have a crisis. You had a crisis in 1876, you had a crisis in 1824.

MR. WATTENBERG: E.J., I have just appointed you president. I have appointed you majority leader of both houses of congress, I have appointed you to be governor of all the states, you can pass any damn constitutional amendment you want, you can come up with any plan you want. What is it?

MR. DIONNE: First, God, save our republic.

MR. WATTENBERG: Yes, absolutely. Okay. What's the plan?

MR. DIONNE: I think the two obvious ones are direct election, and I just concede up front that the problem Professor Berns raised about a very close election we'd have to figure out how to deal with, or some kind of proportional system either by congressional district, or by awarding electoral votes in proportion to the vote in the state.

MR. WATTENBERG: But, that would open up the whole third party situation, wouldn't it?

MR. DIONNE: I don't mean proportional representation overall, I mean, just --

MR. WATTENBERG: Proportional votes for the electoral -- so you'd keep the Electoral College?

MR. DIONNE: I think in the end when you went through all of these systems there is no perfect electoral system anywhere on the face of the Earth. I think you would end up back at -- if you're going to junk the Electoral College you would just go to a direct popular vote. It works in other countries. And I think we could handle it, and we would have that recount -- have to deal with that recount problem.

MR. WATTENBERG: E.J., I asked you what your solution was, and you gave me plural solutions. Give me the one --

MR. DIONNE: I'd say in the end once you go through the objections to the other alternatives, I would end up with direct popular election, and concede that it has problems, too.

MR. WATTENBERG: Okay. So here we have somebody who says, Electoral College, at least until I ask you now, is still the best game in town. And here we have somebody who says we ought to have a direct popular vote. What's wrong with his idea?

MR. BERNS: Well, I presume he means also majority rules, and then the question is whether under such a system it is likely that one candidate in the first election would get 50 percent of the vote. Now, the various people who have proposed junking the Electoral College and replacing it with direct popular election, Senator Birch Bayh of Indiana, for example, made a career of making that proposal, he knew very well that no one was likely to get 50 percent of the vote, so he proposed a run off, 40 percent of the vote.

MR. WATTENBERG: That if no candidate got 50 percent of the vote --
MR. BERNS: There would be a run off election.

MR. WATTENBERG: A run off between the top two.

MR. BERNS: Yes, or whatever. In the first place one would say, if it's the majoritarian principle that ought to guide us here, a president elected with 40 percent o the people is not representing the majority, because 60 percent of the people don't want him.

MR. WATTENBERG: But, in the second round somebody would have gotten the majority?

MR. BERNS: A majority, yes. Then the question is, what is the effect of abolishing the Electoral College, on the number of political parties, and the number of candidates running for office? We know very well, and we have every reason to expect, that if you abolish the Electoral College, and replace it with E.J.'s system, then there is no disadvantage for a number of candidates -- to put it positively, I would predict a proliferation of candidates. There is no reason then for them not to run for office. For example --

MR. WATTENBERG: In other words, Nader would not have been called a spoiler, because if he knocked Gore under 50 percent, it would just go into a run off.

MR. BERNS: Nader is one thing, Gary Bauer, I suspect, is another. Get rid of the Electoral College, you'll have a proliferation of candidates in the run off election. Then there's wheeling, dealing, behind the scenes, what will you pay me if I ask my people to support you in the run off election, and so on? Those are serious problems.

MR. WATTENBERG: Wouldn't it also --

MR. DIONNE: Could I say a couple of things?

MR. WATTENBERG: E.J., just hold on a minute. Wouldn't it also have two other negative effects? First of all, it would diminish the potency of the small states, because they're awarded two senators in Wyoming, and two senators in California, Wyoming is getting a bigger proportion of the electoral vote than they deserve. It would be very hard, constitutionally, to get a vote to have them diminish their power. And secondly, and in some ways I think more important, the Electoral College provides some closely organized groups, be they ethnic, or political, or whatever, who in this case happen to live in big states, for their votes to become extremely valuable. In other words, if you get left handed Lithuanians in the number of 20,000 living in a close state in Pennsylvania, boy, they are going to be paid a lot of attention to, not because they're 20,000 votes, that's not a lot of votes, but if it's close you need one to go over the top. So wouldn't that diminish some of the safeguards and bonuses that we have in this system?

MR. DIONNE: First of all, I think you put your finger on why, even if I could persuade Professor Berns to go for a popular election, it's not going to happen, because the smaller states are over-represented compared with their population in the Electoral College.

MR. WATTENBERG: As they are in the Senate.

MR. DIONNE: And you need three-quarters of the states to --

MR. BERNS: Which means only 13 states can prevent any constitutional amendment. In this case, are there 13 states that benefit as you suggest? And there certainly are, I counted them the other day. There are not only Wyoming, and Montana, and so forth, but Delaware, and Rhode Island, and Maine, states with few people. You can easily get 13 states who now benefit from this system, and if they have their wits about them are not likely to support the vote for ratification.

MR. DIONNE: But, what I was going to say is we have a test in the world of the direct popular election system Professor Berns described, and this for some Americans may rule it out entirely. The country that has it is France, and the way the French system works is precisely with run offs. And what essentially happens is that the first round serves as a kind of primary. And you have had in France, at moments, two leaders on the center right of politics, on the left or center left, they go into the first round, everybody votes, they do not have this fractured primary system we have. And at the end of that first round people make alliances and coalitions, and you've had very straightforward electoral battles in France of late that haven't torn the country apart. In fact, France has been more united, I think, as a political system since it instituted direct election of the president than it was before, when it had a very messy, purely parliamentary system.

And so when you consider this reform, I think it's absolutely true that you've got to consider that it affects not only the election in November, but the whole process of selecting the president. And I think you can at least make a case that this actually constitutionalizes the primary system. Right now we have a very fractured system that all of us, from very different points of view, we say this isn't quite right.

MR. WATTENBERG: E.J., let me just make one point. France has national registration of people. In other words, you have in effect an internal passport. It's not a Social Security number, it's a photo I.D., it's a number. When you change your residence -- so in theory you can get a good voter list, and you can have something to really count. That's not what we have. People in the United States do not want to have a federal I.D. number, and a centralized system.

MR. DIONNE: I agree with that. But, I think that's a red herring. The issue is, put aside for a second this whole question of the electoral --

MR. WATTENBERG: It's a white and blue herring.

MR. DIONNE: I agree, it's a red herring, because we don't want it. I don't want a national I.D. card, I don't think anybody does, or very few people do. I think that what we're talking about here is not just about the Electoral College. The reforms that may be possible will have to do with certain federal standards in federal elections. We already have them in effect through our civil rights laws, and our voting rights laws. And the notion that what is going on in one or two counties in Florida reminds us -- it's not Florida's fault, it could be happening in any state, I think it reminds us of how the entire national system can be held hostage to problems and errors, in particular parts of the country. If you simply had a standard presidential ballot, where everyone would know what it looked like, you would have saved an awful lot of trouble in this election.

MR. WATTENBERG: I have an idea. Okay. Now, here is my solution. There is another scandal, there is a real scandal in this Electoral College system, which is that about two-thirds of the people are really excluded from this vote, because they do not live in battleground states. I mean, if you live anywhere in this area, D.C. is going to go Democratic, Maryland is going to go Democratic, Virginia is going to go Republican, Texas is going to Republican, California is going to go Democratic. So we list these battle ground states, and everyone else they go out and vote, but in effect they are not voting for the presidency, because their vote doesn't count. Suppose you had a constitutional amendment that said, pick a number, 10, we could adjust the number, 10 electoral votes will be awarded to the winner of the popular vote. Therefore, everybody in America would say, honey, we'd better go out and vote, you saw what happened in Florida, and you saw what happened in 2000. Every vote really does count, even if we live in New York State where we know it doesn't -- I mean, New York State is disenfranchised, nobody voting in New York -- no serious person has any illusion that they can possibly have any impact on the presidential election. What would be wrong with that?

MR. BERNS: What does it mean to say that nobody in New York State has any reason to believe he has an impact on the national election? New York has what 36 electoral votes now. The guy who wins the majority of those popular votes gets 36 electoral votes, what are you talking about?

MR. WATTENBERG: I'm talking about the fact that for the last eight elections or so New York has gone for the Democratic candidate by what, at least 10 or 15 points.

MR. DIONNE: Maybe you can get Evan Bayh, Birch Bayh's son who is now in the Senate, to introduce that. That's a very intriguing idea, because if we play it out what it does is it eliminates -- you could still end up with a big recount on the national vote in a close election, so it doesn't solve that problem.

MR. WATTENBERG: For that one electoral vote.

MR. DIONNE: For those ten.

MR. WATTENBERG: For those ten electoral votes, right.

MR. DIONNE: But, what it does do is in a sense it awards the popular view in the country.

MR. WATTENBERG: With something.

MR. DIONNE: The popular view is that an individual vote should matter in a presidential election, and it would actually temper some of these close results, like the one we have now. Where if you had a split on the popular vote and the electoral vote in a very close election, this might tip it to the winner of the popular vote. So when they have the hearings you should go and testify, because it would be a very interesting compromise.

MR. BERNS: All right. Let's apply it to this situation this year, 100 million people voted, essentially. Last count 200,000 plurality difference in favor of Gore. He gets 10 electoral votes for those 200,000 out of 100 million?

MR. DIONNE: He would actually -- when you add the other states that could actually put him over the top. We still don't know how all these states come out.

MR. WATTENBERG: As far as I'm concerned he could get one electoral vote or 50. But, we'd have to figure out the number. But, that's something to say to the two-thirds of Americans who know in advance that they're not 'a battleground state,' consequently this is all an exercise in futility and say, my vote might count, for real.

MR. BERNS: All right. I understand that advantage of that. I don't understand why someone who gets one more popular vote should get 10 electoral votes? How about dividing those 10 bonuses proportionately. And if you do that why bother at all.

MR. WATTENBERG: Well, that is --

MR. BERNS: Let me make a proposal that Lyndon Johnson made 30-odd years ago.

MR. WATTENBERG: I'm for it, if Lyndon Johnson made it, I'm for it.

MR. BERNS: Right, your old friend, your buddy. Abolish the electors, and replace it with something, an electoral vote. That would require a constitutional amendment, but I don't think anyone at this time would disagree with it. Do you understand what I'm talking about?

MR. WATTENBERG: I do.

MR. BERNS: Get rid of these guys.

MR. WATTENBERG: Get rid of the faithless elector, and all that kind of thing.

MR. BERNS: All that kind of thing, every state would have electoral votes, but no electors, and you'd get rid of this -- you know, we're hearing all kinds of rumors now about putting pressure on certain electors to change their vote, which raises a question of maybe being able to bribe them to change their votes, the penalty in those states that have penalties for faithless electors, $1000.

MR. WATTENBERG: E.J., we've gotten the great traditionalist off the dime. I mean, he is now prepared to change it.

MR. BERNS: Sure, change that.

MR. WATTENBERG: Okay.

MR. DIONNE: And you know what's --

MR. BERNS: You wouldn't disagree with that. E.J. wouldn't either.

MR. DIONNE: No I wouldn't. I think what it does show, though, is the original purpose of the Electoral College is entirely gone.

MR. BERNS: Not all of it.

MR. DIONNE: But, the core purpose of it was this notion of a deliberative body of people, then mostly men, who knew each other, knew the national leadership, would make a deliberative decision, kind of like the old national political conventions. I think this suggestion says outright we know that's not true anymore.

MR. BERNS: That's not true anymore. But, the other advantage of the Electoral College is that it takes into account various regions of the country, it has this federalism aspect to it. Traditionally, again --

MR. WATTENBERG: The courts have been moving back toward federalism, which I think is a grand concept. I mean, your colleague David Broder, the laboratories of democracy, having 50 states, not one national unitary government, is a truly great blessing in this country in my judgment.

MR. DIONNE: I agree, although I think people use federalism for their purposes. But, that's for another occasion. I think that one of the difficulties here is what federalism means, vis-a-vis the president of the United States.

MR. WATTENBERG: Okay. We have to get out. I'm going to ask a very simple question, that requires a one word answer, and to which you are no more qualified than anyone else in America to answer, but I'd just as soon get it, and I'll even give my opinion. Who is the next President of the United States going to be?

MR. DIONNE: I don't have a clue.

MR. BERNS: I stand with E.J. on this one.

MR. WATTENBERG: I think it's going to be Bush.

Thank you, Walter Berns, E.J. Dionne, and thank you.

Please, remember to send us your comments via mail. For Think Tank, I'm Ben Wattenberg.

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Additional funding is provided by the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, the Smith Richardson Foundation, and the Donner Canadian Foundation.

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