Friday, January 27, 2017

                                                  THE ACCIDENTAL PRESIDENT

We have just elected as our next President a dysfunctional demagogue with authoritarian instincts who is totally unqualified for the position.  He rode to victory as a successful businessman, which in large part he was not (Trump Airlines, New York Generals, bankrupt Atlantic City casinos, et al) and a TV reality show star, which is also questionable (contrary to his claim his show was not the number 1 show on television or even on Monday nights where in fact it finished only 67th) .  He gives promise to be remembered in the history books as our worst President since Andrew Johnson (who wasn't actually elected) or James Buchanan in the mid-19th century.  In addition to being a sociopath and a shameless pathological liar, he is a man woefully uninformed and seemingly proud of it, breathtakingly lacking in self control and judgement, irresponsible, without any sense of history or respect for the office of the Presidency or moral sense, and consumed by self absorption and delusions of grandeur. And that's just the beginning; he is a crude, vulgar egomaniac devoid of integrity and suffers from arrested development and a transgressive personality.  But we're familiar with this type of person from our school days confronting arrogant boastful bullies on the playground.  They exist.  What is shocking is not that such persons exist, but that, notwithstanding this, such a person was nominated and elected.  It's not as if the electorate didn't know this.  It was all out in the open.  One has to give Trump credit, he didn't hide it (unlike his tax returns); in fact he flaunted it, seemingly as a qualification for the office. Along the way he was helped by the lies and the empty promises.  And the suckers came running. They bought it, hook, line and sinker.  Just as in any third rate democracy.

Is this the price of democracy?  If so, maybe we need a different system.  Maybe history is on the wrong track.  Maybe the rubric attributed to Lincoln (probably wrongly) should be something like, "You can fool some of the people all of the time, and although you can't fool all of the people all of the time you can fool enough of them enough of the time to win elections."  The results of the recent election certainly cast doubt on the ability of an electorate based on full adult citizen suffrage to make intelligent decisions.

But maybe the problem is not with the electorate, but with the process.  Maybe we haven't tried true democracy, at least in Presidential elections.  Let's not forget that the electorate, that is, those who voted, elected Hillary Clinton as President by almost 3 million votes, a substantial margin of  2.1 %.  So Trump did not fool enough of them to have won in a truly democratic process.  It's pretty frightening that he fooled as many as he did, but Hillary won the popular vote by a larger margin than elected Presidents who won the popular vote in 1844, 1880, 1884, 1960 (JFK),1968 (Richard Nixon) and 1976 (Jimmy Carter), and by more than any losing candidate who won the popular vote since 1876 including Al Gore in 2000.  Something is wrong here.  And this is the second time the popular vote winner has lost in the last five Presidential elections. (Some believe it may also have happened in 1960 depending on how the popular vote is calculated.)  So the principal ogre here is not the American voter, at least not the majority of them, but the electoral college, which in 2016 permitted 55,000 voters who gave Trump his margin in Michigan and Pennsylvania to count for more than 2,800,000 voters who gave Hillary a winning margin in the country as a whole. Keep in mind that with the current partisan split in the country this unacceptable situation is more likely than not to be repeated.

[Just for laughs - maybe Trump's mandate is to implement Hillary's program.]

Let's give democracy a chance.  What we need is election reform.  Of course, it won't help with the damage likely to be created by the result of this election, but progressives need to be prepared for the next election.  We may be able to hold the worst off for four years, but for eight years it will be tough (after all, how long can we expect RBG and Breyer to hold on).  Election reform includes, among other things, doing away with or neutering the electoral college, reducing the impact of money on elections, and making it possible and easier for those eligible to vote to register and vote.  And to make sure that democracy performs in fact as it should on paper we need to stress continuing voter education, an essential ingredient for a working democracy.

Let's start with the electoral college.  As noted above, there are other measures which need to be pursued to make our election process in fact as well as in theory democratic, but I will leave them to be addressed at some other time.

In the first place, as one constitutional expert has stated, the electoral college is an odd political contraption.  It's like some Rube Goldberg machine, a compromise resulting from the Founders' inability to agree on anything else and their exasperation and exhaustion as they tried to finish up their work on the Constitution.

The Constitution begins, "We, the people ...", as distinct from "we, the States ...", and there is good reason for that.  The Constitutional Convention was convened to remedy the Articles of Confederation, which was a compact of states, and the choice of words was not without purpose.  [In fact, an early draft of the preamble did contain the words, "We, the people of the states of ...", but it was replaced by Gouverneur Morris with the present language.]  The electoral college certainly does not reflect "we, the people", at least not with the unit rule that all but two states use to allocate electoral votes.  As we know, the Founders, in order to get agreement on the overall package, had to make a number of concessions to the States, particularly the slave states, such as equal representation in the Senate and the three-fifths rule for slaves which, in addition to its inherent injustice and moral abomination, made both the House of Representatives, the Senate and the electoral college undemocratic.  We finally did away with slavery and the three-fifths rule, but the composition of the Senate and the electoral college remain the same.  As a practical matter, the Senate will never be changed, and there are arguably legitimate reasons to keep it as it is (in fact, though, over time it has become even more undemocratic with the expanded use of the filibuster, but that was the subject of an earlier blog).  The electoral college is something else. There is no good reason to keep it.  It has on a number of occasions failed and retains the potential to do even more damage.  As yet, in modern times, we have not had occasion to see an election in which no candidate receives a majority of the electoral votes.  In such a case the House of Representatives would vote to decide the winner.  Each State delegation would have one vote, with such vote to be determined by a majority vote of its members.  If the electoral college in its first phase is not guaranteed to reflect the nationwide popular vote of "we, the people", in its second phase such a vote by the House makes a total mockery of popular representation (don't even think about the chicanery which would take place in trying to sway the votes of individual Representatives).  I hardly need to spell it out; suffice it to say that Wyoming (population of 584,00) would have the same vote as California (38.8 million), Florida (19.89 million), Texas (26.96 million) or New York (19.75 million) (although I don't believe the election has gone to the House since 1824, it becomes ever more likely today when politics are so partisan and third parties keep popping up to distort the choices).

To me, any method of electing the President by other than the nationwide popular vote is prima facie absurd in a nation based on the democratic process.  The President is the president of the people, not the president of the States.  After all, we elect Governors in all fifty states by popular vote; we don't do it by counties; same thing with Senators.  Why not for President?  Deeply ingrained in our national ethos is the principle of one-person, one-vote, and the Supreme Court has ruled it a constitutional requirement (other than for President but only due to the express inclusion of the electoral college in the Constitution).  The electoral college represents a rejection of such principle; it denies political equality and fundamental fairness.

Nevertheless, let's take a look at the arguments submitted by supporters of the electoral college.

One argument is that the Founders wanted to balance the interests of big (high population) states and small (low population) states.  On the face of it this is not a persuasive argument.  It's a carryover of the Confederation concept, the elimination of which was the purpose of the Constitutional Convention, but as the mindset was difficult to overcome a compromise was in order.  The form the argument takes today is that without the electoral college the candidates would ignore small states in their campaigning, and people in those states wouldn't be in a position to judge their relative merits.  The reality is that the candidates ignore the small states anyhow.  For that matter they ignore many of the big states as well.  They focus on the so-called swing states, of which there are only a relative handful.  There is a certain irony in this argument when you consider that the decisive swing states in the 2016 election, Pennsylvania, Michigan and Wisconsin, are not exactly small states.  In any event, with the advent since 1789 of radio, television, the national media and the internet every voter, regardless of location, has all of the access, and then some, needed to make a decision as to whom to vote for.  In fact, then as now, the major political divisions have run, not between big states and small states, but between the south and the north, and between the cities and the rural areas (of which there are both in all states).

Another Founding-era argument, which certainly made sense then, was that voters spread over a large geographic territory would not have sufficient information to make an informed choice among leading presidential candidates.  That was before there were national political parties.  With the coming of the two party system with national candidates and platforms and modern means of communication and transportation this objection became obsolete.

The sad reality is that the electoral college mechanism, like many other political issues of the day, was primarily driven by the slavery question.  The slave states were credited with more than their legitimate number of voters in tabulating their share of electoral votes in the first phase of the electoral college voting, and then in the second phase (it was assumed at the time that the electors would merely, in effect, nominate candidates and that the House would make the final decision) these less populated states would be treated equally with the more heavily populated non-slave states.  We are left, some 225 years later, with a peculiar anachronism which grew out of the "peculiar institution".  The weakness of the electoral college as a democratic institution is further compounded by the adoption by all of the states (other than Maine and Nebraska) of the winner-take-all unit rule which allocates all of a state's electoral votes to the candidate with the highest number of votes, regardless of whether that candidates wins the state popular vote with only 50.1% of the votes.

One more argument, which in my opinion borders on the frivolous (and with which we are familiar in another context), is that in the case of relying on a national popular vote in which the contest is very close and there are allegations of voter fraud there would have to be extended time consuming and expensive recounts.  This is of a part with the by now tiresome knee-jerk claim of the Republican Party (and the obsessional Donald Trump) that there is voter fraud lurking everywhere.  We know that voter fraud is almost non-existent, and there is no reason to think it would be any more present in an election determined by a nationwide popular vote.  Votes would presumably still be counted at state and precinct levels, and allegations of fraud, such as there may be, would be handled in the same way as they are handled today.  True, since every vote would count, there is the possibility that there could be more disputes, but the purpose of an election is not to see how we can reduce the number of disputes.  It is to make sure that every vote counts and counts equally.  If opponents of a national popular vote are really serious about the integrity of the election process, they would instead support efforts to modernize our voting mechanisms and apply consistent voting procedures throughout the country.

In effect we have system in which is ingrained the idea that the votes of some citizens are worth more than those of others because they are cast in less populous states.  It is doubtful that it was ever a good idea, but the reasons for its adoption certainly have no relevance today.

Unfortunately, in the real world there would seem to be little likelihood that a constitutional amendment eliminating the electoral college and replacing it with Presidential elections based on a nationwide popular vote could be enacted.  Although this should be non-partisan issue, in today's political atmosphere it becomes a partisan issue.  There is no inherent political bias in relying on a national popular vote for President.  No one can predict whether it would result in a different outcome in future elections.   However, it would seem that the most outspoken defenders of the electoral college are Republicans.  Apparently they see the electoral college as benefiting them.  This certainly was the case in 2000 and 2016, but in the future it could as easily go the other way.

Sad to say, the Republicans seem to feel that they cannot prevail unless they can disenfranchise voters. We see this in places like North Carolina and other states where state governments are controlled by Republicans, and they have tried to impose requirements that limit voting aimed at groups who they feel they cannot convince to vote for them.  It never seems to occur to them that it would be more constructive to develop programs and policies that appealed to a majority of voters. On the other hand, perhaps they recognize that as a Party they do not believe in the ideals that appeal to a majority of Americans.  As such, they have become a party which is trying to maintain those undemocratic mechanisms which we have inherited from a very different and hardly appealing past and to re-impose certain undemocratic practices which we have been able to eliminate, e.g., poll taxes and the like.  Be that as it may, the chances for a constitutional amendment are pretty slim.

There is some hope though through the National Popular Vote Interstate Compact.  This is an agreement among a group of U.S. states and the District of Columbia to award all of their respective electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia.  It will come into effect only when it has been adopted by states with an aggregate total of 270 electoral votes.  So far it has been adopted by 10 states and the District of Columbia which together have 165 electoral votes.  To become effective, additional states with 105 electoral votes will have to adopt it.  Still an uphill battle, but it has more promise than a constitutional amendment.  If progressives keep hammering on this, it may bear fruit.  Polls show that a majority of the public favor eliminating the electoral college, 62% in a recent poll and a majority in every Gallup poll asking the question going back to 1967.  It will probably be necessary to get big swing states like Pennsylvania, Florida and Ohio to join the Compact and that may be difficult given Republican control of state legislatures and Governorships but perhaps passing ballot initiatives is possible.

One further thought - what about mandatory voting?  I raised this in an earlier blog, but it's worthy of further discussion.  In the recent election about 57% or 58% of the voting age population cast a ballot, fairly typical in the US but lower than in most OECD countries.  Trump got 46.1 % of the vote and Clinton got 48.2%.  Thus Trump was elected by 26% of the vote of the eligible population.  He is a minority President in every sense of the word.  This is ridiculous.  Even George W. Bush and Barack Obama won with only around 30% of the vote of the voting age population.  Of course, they won the majority of that vote (2004 only for Bush).  Part of this is due to voter suppression and difficulties in registration, but it is also due, according to some commentators, to lack of enthusiasm, "The more significant costs of participation are the cognitive costs of becoming involved with and informed about the political world.... Political interest and engagement ... determine to a large extent who votes and who does not." According to this view, making voting easier, which has been the case over the last 20 years (notwithstanding the recent Republican voter suppression campaign), doesn't increase turnout.  If this is correct, and the consistent pattern of low turnout in the US would seem to bear this out, the only remedy might be a mandatory requirement to vote.  Turnout in the nine elections after Australia adopted compulsory voting averaged 94.6%, compared to a 64.2% average for the nine elections before the reform.  An added benefit is that if everyone, or almost everyone votes, any socio-economic bias in the voting should be eliminated.   However, along with this there needs to be a campaign of voter education for the politically disengaged.  This, too, would be an uphill battle, particularly given the Republican reaction to the health care mandate, but here the mandate is only that one has to vote; one doesn't have to pay anything and the vote can be for a Republican or a write-in candidate.

These are challenging propositions, but, as Rahm Emanuel has said (although apparently not the originator), "You never want a serious crisis to go to waste", or words to that effect.  And make no mistake, this is a serious crisis, as is brought home repeatedly each day.  There is probably no better time to act.