The Constitution's Invisible Hand?
Overhauling the Political System Within Constitutional Constraints
With the closeness of the Presidential race in 2000, and the prospects of some
determination of its outcome on the controversy generated in Florida by Al Gore's
legal manuveurs to try to find enough votes to win, there may be some indications
of changes that could well occur in what some may term our Seventh Party System
beginning over the next four years.
There are calls for such extreme measures as abolition of the electoral college,
and we are regularly beset with cries of reform to purge the big money from politics.
Others have advanced attempts to change the way we elect Presidents to something
more on a parliamentary system. But all of that and more could be achieved without
formal alteration of the constitutional order.
There have been stirrings in Florida as Republican law-makers have reacted to Gore's
legal gyrations to undo the results of the election that on Constitutional language
they might want to determine on their own to whom Florida's electoral votes should
go. There is provision in the federal code that reinforces that method. It would help to
remove the taint of corruption that has beset our elections since at least the end of
World War II.
But Florida was not the only state when the vote was close. Indeed, there were
relatively few states in which the election was not 'close.' Electoral challenges
and recounts and legal battles could have erupted in easily a dozen states, and
still might. These states have well above the majority of the electoral votes.
We do seem to have a romantic attachment to the notion that the President is the
one elected official whose consituency is the entire country, but that sense is as
much fiction as it is reality. And if the alignment of forces in the country for the
foreseeable period is as divided as the past few elections, and especially 2000,
seem to indicate, we could be in store for a regular helping of ulcer inducing
elections if we continue to operate as we have.
But it would not take constitutional amendments to alter that system of electing
the President. The Constitution assigns the determination of electors in each state
to the state legislatures, as the Florida law-makers have been noting. And the results
of this past election may provide strong support for moving toward some measure
of utilizing that constitutional framework to select the President. We have just
hacked our way through a multi-million dollar campaign (again) that produced very
little in terms of determination of the public will. Indeed, it is difficult to assess just
how closely most citizens are able to base their decisions on voting on sound
judgements, given the degree of misinformation and sophistication of policy
considerations which simply cannot be addressed by such a blunt mechanism
as the choices which they have can offer. Simply the cross winds of political
pressures from the campaign ad blitzes leaves many voters virtually shell-shocked.
This may be one of the factors which fuels the low levels of voter turn-out the
country. And bringing the choices voters will be making closer to them -- to the
choice of state legislators and representatives in Congress in a stronger party system -- would not be all so bad, either. It might bring voters more consciousness
about the votes they do cast.
It may not be that such changes in the way we elect Presidents will result as part
of any conscious plan. This may all happen simply as a result of political realities
that cast their shadows across the country. It might indeed make a great deal more
sense for state legislatures to choose electors, and that may or may not be with
reference to popular voting on just whom the public favors. It would lead to a variation
on the way most representative democracies choose their titular leaders. And it seems to work well in most of them. In fact, the nations which have had popular
votes to decide who would be the national executive are very few. We have been
almost unique in that regard. Of course, Germany did use such a system, and they
But no one in Britain, or Japan, or Germany, et al has voted to name the nation's
top official. And it serves to strengthen the political party structure as well -- a direction which might tend to lessen the awing role of money in elections. So the
system might be evolving a solution to much that has been ailing our political system
for so long.
I do not suggest that money in politics is the horrific evil that some have portrayed it
to be. Indeed, such financing of politics seems to me to be simply a matter of First
Amendment rights. On the other hand, we have seen a host of miscarriages of that
with the current administration violating existing campaign spending laws with not
an ounce of effort to pursue 'justice' because it comes down to a self-enforcement
mechanism as the administration is not disposed to enforce the law against its own
We may find that over the next set of national elections, we move in the direction
described above, propelled by exigencies rather than some design. But the nation
should not look upon that as a rejection or abandonment of representative democracy. It may actually be a movement in that direction. The one constitutional
revision we might consider would be to repeal the 17th Amendment and let the state
legislatures elect US Senators again, too.
Florida's state legislature may not end up deciding on whom the electors from
Florida will be, but we should take note of this plausible remedy. State after
state in upcoming elections, in which the electorate is divided and overwhelmed
and inundated by campaign spending, may wish to consider such course of action.
As they move in that direction, voter attention would become more focused on
party and policy and less on the counter-vailing crosswinds of political advertising.
This is not a cause for dispair. We may find ourselves not so far down the road
with parties nominating candidates, probably still using the presidential preference
party at least initially but perhaps less and less so, with the election of their choices
determined by the state legislatures.
And true to the tradition of checks and balances built into the Constitution, even
that would have to pass muster in the Congress, which rules on acceptance of
those elector choices. We may see a waning of the almost omnipresent if not
exactly omnipotent chief executive as well, and that may not be all bad either.
It is an awful lot to ask of anyone to serve in that capacity. It may foreshadow
a greatly enhanced role for the Speaker as well. There has been some commentary
on the prospects of a rising tide of legislative government. It has been much more
our choice in the past. And afterall, what was the first and most extensive article
of the Constitution about?
And so, the election is held in November, but probably increasing not on one day
or even so exit polls can tell us how we voted before the polls close. Then the new
state legislatures decide who it is they want to send as electors to vote for the
new national executive, and those votes are carefully scrutinized by the U.S.
House, which, in its wisdom or its division, be compelled to make the actual choice.
A return to stronger party government would be a useful thing. We would still have
an executive, but one much arguably more subject to the checks and balances of the constitutional order, as well as to the rule of law. We simply do not need to be
doing it the way we have been.
By 2004, it is possible that all of this will seem to have been idle speculation growing
on the 'crisis' that we experienced in the outcome of the 2000 vote. We may even
have a new party system launched with a successful President seeking re-election.
In the past, 'realignments' have been preceeded by elections that were anything but
presages of those developments. For example, on the landslide victory of Lyndon
Johnson in 1964, who could have anticipated the apparent realignment that brought
us Nixon and Reagan by helfty margins -- at least in their re-election? That may
be part and parcel of a lawful process that we do not fully comprehend let alone
understand. After all, years after 1968, political scientists were still awaiting the
next realignment that had already taken place, but which they, blinded by their
partisan leanings, could not even bring themselves to acknowledge.
The best part of this is that we may not have to do anything about it at all for all
of this and more to take place. One might as well take a deep breath and consider
the possibility that the Framers were much more wise than some of us are willing
to give them credit for having been, as we see the process turn into one much more
similar to that envisioned by them in the 18th century.
This is not a work of prophecy. It may be anticipating things that are far from likely.
But it is not out of the realm of reason, nor would it be beyond the capacity of the
American people to accept. Indeed, we might hear one heck of a collective sigh of relief. That might be good cause for our leaders to be conscious in the shepherding
of such direction.
Return to beginning of ejps
Return to beginning of this issue