Constitution Daily

Smart conversation from the National Constitution Center

Five constitutional lessons learned from the presidential election

November 7, 2012 by NCC Staff


The race between President Barack Obama and Mitt Romney is over, after a record amount of campaign spending and a seemingly record amount of speculation.

In the long term, what does it all mean for the Constitution?

There were plenty of issues in play on Tuesday that touched the Constitution in some form, from unlimited campaign spending to the viability of a two-party political system.

Here’s a quick review of those issues, as the smoke clears after Election Day.

1. Citizens United not a deciding factor—yet

The Supreme Court’s 2010 ruling in Citizens United v. FEC led to potentially unlimited spending by super PACs in the general election. It was seen by some as the boogeyman of the election. But in the end, it all didn’t seem to matter.

As the campaign wound down, so did the availability of TV ad time on stations in swing state markets.

2. The Electoral College holds the line

After the 2000 election, there was a movement by some states to get around the Electoral College by passing the National Popular Vote Interstate Compact.

It looks like President Obama will win the popular vote as well as the electoral vote, which would blunt the momentum for changing the Electoral College system.

That would be the mother of all constitutional battles, so don’t bet on seeing it in the next four years.

3. Will there be a significant third party in 2014 or 2016?

The 2012 election maintained the status quo, with the Democrats in control of the presidency and the Senate, and the GOP in control of the House and the majority of state legislatures.

There were already rumblings within the GOP of a schism between its moderate and conservative branches. The failure of two moderate presidential candidates in a row, Mitt Romney and John McCain, will just add fuel to the fire.

If the more conservative part of the GOP spins off into its own party, it would change the dynamics of doing business in Congress. And accounting for third-party tactics isn't one of the Constitution's strengths. (Although the Constitution never mentions political parties, some of its aspects tend to play into the two-party system, such as the Electoral College system that selects our president.)

Recent Constitution Daily Stories

Obama wins, Romney concedes Five losing candidates who came closest to becoming a president Smaller swing states do in Romney in game changer

4. What happens to health care?

More than likely, any GOP attempt to repeal the Affordable Care Act will have to go through the Supreme Court.

The Democrats control the Senate, and President Obama has the power to veto any legislation, without the threat of it being overridden.

The repeal of “Obamacare” presents several tactical problems for the Republicans. As more parts of the law go into affect, more people are covered under it.

While “Repeal Obamacare” is the mantra of the conservative wing of the Republican Party, the moderates may need the votes of people who favor it to win congressional seats in 2014 and the general election in 2016.

So don't look for a proposed constitutional health care amendment in the near future.

5. More voting reform could be on the horizon

President Obama promised he would do something about long voting lines in his acceptance speech. Extremely long lines were reported in Florida, Virginia, and several western states.

The GOP is also pressing forward with its quest for expanded voter ID laws, to make sure only qualified people get to vote. The Democrats see such efforts as voter suppression.

In the 21st century, many polling places are still using 19th-century methods.

However, there has been some adaptation. Because of Hurricane Sandy, New Jersey allowed voting by email, and New York allowed voters to use any statewide polling place on Election Day.

The ability of an electronic voting system to modernize the election process would also need a companion system to verify the identity of voters.

So we could see some radically different voting systems in place in some states by 2016, if the changes survived expected court challenges.


Sign up for our email newsletter