Alex Keyssar of Harvard University and James Ceaser of the University of Virginia explore the history and purpose of the Electoral College.
TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of The National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is the only institution in America chartered by Congress to disseminate information about the U.S. Constitution on a nonpartisan basis. And this week, we explore the history and future of the Electoral College. Article II Section I of the Constitution establishes the processes of presidential selection, states are directed to quote, "... appoint in such manner as the legislature thereof may direct a number of electors," end quote, who then cast ballots for president and vice president.
In 2016 for the second time in 16 years, and only the fifth time in U.S. history, a presidential candidate won a majority of the Electoral College, but lost the popular vote. Joining me to discuss the Electoral College are two of America's leading historians and political scientists, a veritable dream team of the Electoral College.
Alex Keyssar is Matthew W. Sterling Jr. Professor of History and Social Policy at Harvard's John F. Kennedy School of Government. James Ceaser is Professor of Politics at the University of Virginia, and a member of The National Constitution Center's Coalition of Freedom advisory board. Alex, James, thank you so much for joining!
James Ceaser: [00:01:21] Thank you.
Alex Keyssar: [00:01:22] It's a pleasure to be here.
Jeffrey Rosen: [00:01:24] Wonderful, well, let's jump right into the history and original understanding of the Electoral College. James, you have written the explainer about the Electoral College which is not yet posted on the thrilling Interactive Constitution, but soon will be. So, you can give us a preview of it. You wrote it with Jamin Raskin of American University Law School, who's just been elected to Congress, and in your joint statement you say that the Electoral College is a complex and non-uniform state-by-state process desi- designed like the U.S. Senate, which was originally composed of members chosen by state legislatures, not the people, to filter public opinion through a deliberative, intermediate institution. Tell us more about how the Framers expected the Electoral College to filter public opinion, and what else they were trying to achieve in setting it up.
James Ceaser: [00:02:07] Well, the first thing to note about the institution is that in the national government, we really have four national institutions, not three. Presidency, Congress, Court, and the Electoral System for selecting the president. The system was that important to the whole framework, that it was put right in the Constitution, and constituted a national institution.
The second thing I would say ab- about the institution, when you think about it today, is that it was not merely and institution for the final election, as we would conceive it today. It was really an institution that was to handle the whole process of selection from beginning to end. Which is to say, in our terms, winnowing or nominating, deliberating about that as who would be the final candidates, and then selecting the final candidates in, in most cases. So, it covered the whole gambit, and therefore, it's wrong to look at it merely as, as dealing with the, the, the final election process.
The next thing to say is that th- there were, is variety, or the state legislatures were the ones that decided how the electors were chosen, but one shouldn't think of it as being a- a non-popular system. Se- especially by the standards of the time. In fact, the state legislators could decide the way in which the electors would be chosen, sometimes it could be done by popular vote, sometimes it could be done by the elector- the legislatures themselves.
I think, broadly speaking, so far as we can see, it was a fairly ... meant to be a- a- a fairly popular system to choose the president, but with the proviso that, if you got the wrong type of candidate in the view of the electors, that they could deliberate and set aside, and to make sure that among the possibilities, someone less dangerous might be chosen.
Jeffrey Rosen: [00:03:49] Fascinating. I wanna pick up on that qui- thread in a moment, but Alex Keyssar, you have a soon-to-be released book, 'Why Do We Still Have the Electoral College?' I wanna focus right now on what the Framers were intending to achieve when they created it. What do you have to add, or amplify, to what James said about the original understanding of the Electoral College?
Alex Keyssar: [00:04:08] Well, I- I- I think, I think it's important to understand also that the Framers collectively had a great deal of difficulty figuring out how to choose a chief executive, or a chief magistrate. In fact, I- I- in the course of the constitutional convention they arrived at the title of President before they could figure out how to choose a president. They went back and forth throughout the summer and the interesting thing about the debates was that the default position in effect was that Congress should choose the president.
And they kept kind of having straw votes on that [laughs] and then saying, "Nah, that's not a good idea, because then you don't have separation of powers, and there will be corruption." And it went back and forth, and finally, in the end ... and I think, I- I think we really mean, I- I'm less inclined to see the Electoral College as the result of grand theoretical perceptiveness. You know, in, in the end it was left to the committee on unfinished parts in, [laughs] in the last week of the convention, to kind of come up with a scheme. And they came up with this scheme.
And in a certain w- in a certain way aside from the notion of it not being a, you know, a direct, a national-direct popular election, what the structure of the Electoral College is, is it- it's a replica of Congress with each state having the same number of Electors as it has Representatives and Senators, but it's a replica of Congress that meets only once and ha- does no other business, and thus the corruption issues, which were so feared are not present.
I, you know, I think you know, even to, again on this point that you know, we should, we should understand that this was an institution created w- w- well, I- I, you know, I do not regard this as the greatest handiwork of the Founding Fathers, nor in fact, did, did, did James Madison, who thirty years later wrote that he thought that it showed the signs of haste and fatigue.
Jeffrey Rosen: [00:06:12] Fascinating. Now, Hamilton was more positive about the Electoral College, and he in Federalist 68 said that "It's the motive, appointment of the chief magistrate, is almost the only part of the system of any consequence which has escaped without severe censure. I venture to affirm, if the matter of it be not perfect, it's at least excellent."
James Ceaser, y- you have a 1979 book about presidential selection, which was so prescient that several political science professors told The Atlantic recently, after the election, "I expect Jim Ceaser to take a victory lap around the country saying, 'I told you so!'" Because in your 1979 book, you talk about the Framers concern about e- excesses of democracy, and the emergence of demagogues, and you talk about the filters that they introduce to try to prevent the election of demagogues. Was the Electoral College one of those filters, and was it supposed to prevent the election of de- demagogues? Tell us substantively about what it was supposed to do in, in choosing candidates.
James Ceaser: [00:07:11] Well, I believe it, I believe it was. And the, the way you can see and u- understand this fr- from the system itself is the, the mere fact that I don't think the system envisaged a campaign in the sense that we have it today. Campaigns developed later. It wouldn't be a campaign, because the final choice would be in the hand of these electors. So, there might be some pre- electoral movement by the candidates, but you wouldn't have a full, open debate or campaign.
And the, the idea, so far as I can see it, of the, of the Founders, is that the type of person would be selected, as I said, might be popular, but it would be based on the reputation and the record of service that those candidates pr- provisional candidates, had. So, the ambition of all those in United States that wanted to president, would be directed not towards being clever in a campaign, not towards an appeal in a campaign, not towards any form of popular ads, or, or demagogy, but really towards establishing a record that would say, "Boy, this person has gone further than the others, and he or she should be president."
That was the system that they envisaged. And it was recreated a little bit later in how we nominated candidates, who also, when they were nominated by conventions, they rarely campaigned, or never campaigned. They had to wait for the body to decide. So, I would say it, it was a kind of filter. And I add one, one point, the most frequent forms of election in the United States, especially with no 22nd Amendment, would be settling on how a- an incumbent had done. So, it was a kind of judgment made on the incumbent, and there the electorate the electors would I'm sure be listening to the p- public to a large extent, but cu- could make sure that a president would be continued in office if he had done a good job.
Jeffrey Rosen: [00:08:54] Great. So, Alex, we've identified a bunch of original purposes for the Electoral College, to provide the presidency with its own base of support, to supply a basis of popular legitimacy for the president, to block the election of demagogues, to channel the energy of major political figures. I'm, I'm summarizing from your comments, and from the Interactive Constitution essays. Bu- bu- but things didn't work out that way. And almost immediately after the contested election of 1800, the Framers decided that an Amendment to the Electoral College system was necessary. Tell us what went wrong in the election of 1800 and, and, and what the reforms of the 12th Amendment were?
Alex Keyssar: [00:09:35] Well, f- f- yeah, no. I'm, I'm happy to do that. I- I- I- I- I- I feel [laughs] I feel as a matter of in- of in- integrity I d- I do have to make a comment about the Hamilton quote that you-
Jeffrey Rosen: [00:09:45] Please.
Alex Keyssar: [00:09:45] ... That you, that you read earlier-
Jeffrey Rosen: [00:09:47] [laughs]
Alex Keyssar: [00:09:47] ... which is, which is widely, widely distributed. I mean, we have to remember the Federalist Papers were polemics written by participants to try to get the Constitution ratified in New York. I- I- I think that to treat these as matters of high principle and truth is really misleading. Hamilton was writing a polemic that was deeply misleading when he wrote that. The reason that there weren't that many objections to the electoral, to the Electoral System ... by the way, the Electoral College is a phrase that does no appear in the Constitution. And the reason that you know, Hamilton said there was relatively little criticism, was because there were other issues that were much more important to people, like the absence of a Bill of Rights.
Jeffrey Rosen: [00:10:24] Interesting. Thanks for that.
Alex Keyssar: [00:10:25] I- I mean, just, you know, Hami- [laughs] Hamilton gets much to much credit, or blame in some cas- you know, people I- there have been a lot of people saying recently that the Electoral College was his creation, which is not true. On, on the, on the issue of the 12th Amendment y- you know, it was y- th- the crisis of 1800 [laughs] or the election of 1800 was, of course quite remarkable. The, the Constitution did not indicate that electors or anyone else would cast separately differentiated ballots for president and vice president.
In effect what ended up in 1800 in addition to other machinations was that the sort of Jefferson and Burr, from the same alignment, or quasi-party, a- at the time, ended up with the same number of electoral votes and clearly the democratic republicans intended for Jefferson to be the president and Burr the vice president. But, in fact, that decision was going to end up in the hands of their bitter opponents, a Federalist. And, and they were bitter opponents. So, the system had clearly malfunctioned, they had as, as is had been mentioned earlier by Jim Ceaser, they, they had not envisioned campaigns, or they had not envisioned parties. They had a notion that the most qualified man in the country would become president and the second most qualified man would be vice president.
But by 1800, part- proto-parties already existed. And, you know another thing which happens in the election of 1800, of course, is that Virginia shifts from distributing its elected- its electoral votes on a district basis, to adopting, quite apologetically, winner-take-all in order to help guarantee the presidency to Jefferson. When I say apologetically, the actual- the legislation through which Virginia got rid of the district system and moved towards winner-take-all, contains a proviso saying "We- we really don't think this is [laughs] a very good idea but as long as other states are doing winner-take-all we, you know, we're, we're gonna do it, too. But we really think that there should be a national program of having electors by- by districts."
So, you have a, you have a joint crisis of both the manipulation of the allocation of electors, and then what you have is this tie vote so that the election then goes to the House of Representatives where each state gets one vote. It should be said also, in ter- in terms of thinking about you know, the original design of the Constitution, it seems from m- my reading of the evidence, many of the Framers and contemporaries thought that the election would often end up in the House of Representatives. Others disagreed, and thought that the Electoral College would effectively deal with it most of the time, but th- there were some people who thought that the Electoral College was- would, in effect, served as a kind of nominating board, forwarding the names of several candidates to- to Congress.
In any case, what happens out of the crisis of 1800 and in subsequent years, to summarize what's a very complicated set of gyrations, is that there are movements afoot to amend the Constitution and to change the presidential select- selection process on two fronts. One is to designate or differentiate separate ballots for president and vice president, and the other is to mandate nationally, the distribution of electors within each state by by district, which had been the position of Jefferson and of the Democratic Republicans.
In the complex, partisan jockeying that unfolded in these early years, and as the Democratic Republicans are becoming ascendant and politically dominant, what happens is that they drop the district allocation of electors and end up embracing the other provision, which was designation or differentiation. And that becomes the 12th Amendment.
Jeffrey Rosen: [00:14:35] Thank you so much for that very well summarized history. James Ceaser what happened in the 19th century? We've said the Framers didn't anticipate the rise of political parties, they thought that elections would end up in the House. In the 19th century, one election ended up in the House, that of 1824. There were two more elections where the loser of the popular vote won in the Electoral College 1876 to 1888. In the 19th century did the Electoral College operate the way the Framers anticipated or not?
James Ceaser: [00:15:02] Well it- it ... From the very beginning, after the 12th Amendment, it became clear that the, half of what the Electoral College was supposed to do, namely to winnow down the candidates, was no longer part of the official institutions of government. It slipped from them to the political parties, which had no formal constitutional status, but really took over the function, in fact, defacto, of winnowing the candidates to- to- to two. That was the- the idea of nominating. Nominating would- would bring them down to two.
That happened in a couple of the elections. The very interesting thing ho- however is that parties, once they began in the 1790s, quickly, by the time of 1816, really went out of business because one party won it all, and we return to a system with no parties, that was the Era of Good Feelings. It was the crisis of the Era of Good Feelings, at least for Martin Van Buren, which led to the election of of, of 1824. And that was an election now, without anyone, or anybody nominating. So, you had five or six candidates, or why don't we put it in modern terms, summat like the Republican primary this year.
17 guys running for the same prize, five or six running for the Presidency of the United States no party nominations, and the result was that no one got majority of the electors, and it went into the House of Representatives eh, eh, for that one example of of a choice made by that ... One individual, Senator Martin Van Buren at the time, looked at the system and he says, "The country is going to dissolve if this system remains in effect. For the simple reason that these five or six candidates jostling against each other, will each appeal, as demagogues, to various sections of the country. The country will probably split in- in- half. It isn't going to work. The country will- will divide and end on this basis."
So presidential selection came back as a fundamental issue. His resolatio- resolution of the problem was not a Constitutional Amendment, that was too difficult, but to re-institute political parties, so that we once again had a choice between, say, two candidates rather than five or six, and that the principles of those candidates would be partly regulated by the moderation of political parties, rather than the ambitious desire of each individual to find some scheme-or-other which, in the short run, could get him elected president.
So that's, in a way, why we have a party system as except- as distinct from parties. A party system was instituted really to fulfill that old function of the Electoral College's, which is to narrow people down and get responsible people to be candidates for the presidency. The crisis of 1824 then, represented really the collapse of the old system, and an effort to re-institute it in other terms. As for the other elections that you mentioned, peculiar problems in each of them, but I don't think that the issue of who got the absolute majority vote was really very much of an issue, it wasn't raised very much in either of those it's the rules were electors chosen by states.
No [inaudible 00:19:03] ... resulted from that to any measurable extent. In fact, if you look at some of these elections in the late 19th century, they were so close by the popular vote that it's doubtful that the statistics really say who won, and the, the, the margins of difference in some of them were exiguous. The real issue always focused on the existing rules, who won the electoral votes, and it wasn't really, I suppose, until this century that this issue with a minority chosen, someone who didn't get the plurality, became, in the minds of some, such a crisis. It remains in- for some, a- a big issue, for others it's no big deal.
Jeffrey Rosen: [00:18:32] Very interesting. So Alex Keyssar. J- Jim Ceaser has noted that, that o- one of the original purpose of Electoral College, candidate selection drops out with the rise of the party system, did- did the second one, that of f- f- filtering demagogues and exercising independent judge- judgment persist? We do have 157 so-called faithless electors, who failed to vote for their party's designated candidates. - w- was, was that an example of independent judgment being exercised or wa- was the question of faithless electors pret- pretty well a- a- a- a- a footnote.
Alex Keyssar: [00:19:07] Well the, the you know, ... The question of, of independent electors, eh, eh, o- of whether there should be human electors is raised very early on. And you know, and in fact by, by the 1820s there's a very strong current of opinion that they should be disposed of. I mean, I don't ... I, again, I don't, I don't ... but y- you- it's certainly the case, you know, b- by 1800 even, maybe even by 1796, there is no independent judgment issued by the electors. And by the early 19th century, the electors are being mocked by political figures as being simply mailmen, and messengers, and u- u- utterly useless.
There are, and I think, I think this is something we should keep in mind, in terms of satisfactions or dissatisfactions with this system, there was tremendous discontent with the presidential election system in the first third of the 19th century. Five times, the Senate passed Constitutional Amendments by the requisite two-thirds majority to change the system and in one year they lost in the House by only about four or five votes. And what- what- what the reforms would have done, would have been to institute district elections ra- rather than winner-take-all, would have pretty much gotten rid of human electors, and would've change the contingent election system to give less power to the small states.
Now, there are various reasons, including the historical contingency of the mess of 1824 [laughs] that prevented those reforms from getting passed, and it's very difficult to to amend the Constitution. But this was, this was an institution that was seen as working very poorly by large, large currents of American political opinion. I mean, Andrew Jackson, you know, every year in his annual messages s- suggested doing something to get rid of it.
Jeffrey Rosen: [00:21:06] Interesting. So, James we're, we're working through the original understanding of the college and whether those understandings panned out. Is it fair to say, do you agree with Alex's suggestion that, really, all of the o- original purposes of the college, both candidate selection, and independent judgment basically failed to materialize by the 19th century, and it was not achieving its original purposes?
James Ceaser: [00:21:30] Well, part of the purposes, as I said, were picked up really, by the political parties. They were, became the filtering agent, and the Electoral College, what it did was represent the distribution of votes among the different states, and it made the selection fo- of the final, the final selection for the president. So, that function remained, it wasn't maybe exactly as intended of course it became more popular. That's fully within the purview of the Constitution for the states to, in effect choose their electors to vote for the popular favorite o- of those within the state, by popular election. That was an evolution, but it by no means ... by, by every means open in the Constitution and began very early.
So, I think there's elements of continuity in the Electoral College, and things that as it were, fell by the- by the wayside. And that, I think, is a, is a point to point to point out is that in all of our institutions, there's been dramatic evolution an- and change. Some of it's arguably more in line with the what the Framers had in mind, some of it may be evolving against, but we can't say that the Electoral College stands out as the only institution that's operating in a different way than maybe was in the minds of those who gathered in Philadelphia.
Jeffrey Rosen: [00:22:42] Thanks for that. So, Alex, I guess now we need to begin to focus on whether there are arguments on the- for retaining Electoral College today. And, I guess, James ha- has identified one in his, in his separate statement on the Interactive Constitution, he calls electoral College, "The fourth national institution created by the Constitution, going along with the Congress and the presidency." And he- he- he mentioned that when elections are really close, as they were in the 19 century, and, and it's tough to tell the statistical winner, then the Electoral College at least provides a clear winner. Is- is- is that a ... wh- wh- what do you make of that a- argument and can you think of any other arguments for retaining Electoral College?
Alex Keyssar: [00:23:22] I- I've, I- I've always had trouble thinking of arguments in favor [laughs] of re- of retaining the electo- the Electoral College. I mean, we, you know, one can ... You know, it seems to me to be a fairly weak argument. I mean, it, it's true that you can get a kind of arithmetic clarity when the popular election is is extremely close and the elector- and- and- and the electe- the electoral votes look fairly decisive. That gives you an arithmetic clarity, but that's only matters to the extent that people pay attention to it and are willing to adhere to. And I don't see any particular reason why the population would not grant the same legitimacy to totals of national popular votes.
So, I, you know, and- and there- there are som- I an- ... And that said, you know there are so many defects of the Electoral College itself, and its functioning, and so many ways in which its legitimacy is questioned by the population, as we see today, as we see these weeks that, you know, I- I don't se- I don't, I- I- I just see the- that kind of argument does not, not taking us very far.
Jeffrey Rosen: [00:24:34] Okay, well, I'll, I'll ask you to enumerate those defects in a moment. But James, I guess now is the time for you to offer the case for the Electoral College, in- in addition to the providing arithmetic clarity what are the other arguments for retaining it today?
James Ceaser: [00:24:49] Well, one is it's gonna be very difficult to change, it's not impossible, but ... So, it's a good bit- debate to have, but the probability of it doing so is low, because a large number of the smaller states look favorably on this, and through the amendment process it will at least be difficult, I think that's a given. What arguments could be said to exist in its favor? It is a- an indicator of a bit of federalism in our system. That is the, the units that handle the, the vote, and the electoral vote, are states. And this is a union of states, they wrote the Constitution in this way, it's not meant to be the national government where it- it's one person one vote for everything. Otherwise, we wouldn't have a Senate.
And some of those who called for the elimination of the Electoral College, some of those who are very consistent have said, "Well, while were at it, let's get rid of the Senate! Why should the people in Wyoming have so much a say over one of the branches of government, comp- compared to California if it's just all of us thrown into one pocket?" So, the, the Electoral College reflects the a- a- argument of states, and that the appointed states and geography really count, that representation in the United States is not a simple matter of, of numbers.
Another pointed to the I- I think is important, is that the elimination of the Electoral College by- by a- s- states, would mean, immediately, that we would have a national electoral system completely. It follows as night follows day, that if a vote in Virginia's gonna be the same as a vote in Alaska, you will have national standards for registration, you'll have national standards for the timing in which the vote takes place, whether by mail or not mail, you will have the same standards all over, and probably some sort of national administration to handle this. Something like what we have when we go through the airports at TSA.
You'd have a, a new administration, it would change completely the character of our electoral laws and electoral systems, whether for good or ill is ... can be debated, but you have to realize the consequences o- of this change, they're dramatic, and they represent a dramatic nationalization of the whole American system, which I think is something that people should think about, largely and clearly.
Finally, I mentioned the fact that when you, you look at the, the, the map of this last election it- it se- it seems to speak in some ways. Yes, there a lot of trees, and a lot of rocks between Manhattan and San Francisco, but the [inaudible 00:28:50] fact that you have so large a portion of the country geographically, speaking in one way indicates that geography should not merely be dismissed in this consideration, and the Electoral College represents that idea.
Jeffrey Rosen: [00:27:21] Beautifully summarized. So, Alex James has given us three arguments on behalf of the college. First federalism second the dangers of nationalizing our electoral system, and third, geography matters. What is your response to each of those points?
Alex Keyssar: [00:27:36] Well, if you, let, let, let me- let me- let me take up his, his starting point, even before he made those points. First, which is the cl- eh, it be the two-part claim. One that it'll be difficult to amend the Constitution, which I certainly agree, but the claim that it's because of the small states that we, that we would encounter great difficulty. The fact is, historically, that's just not true. The fact is that, and, you know, and, and there w- w- the numbers have been run on the roll-call votes, and I've been doing a lot of research into a lot of the sort of individuals on this, and, and the small states do not pose a particular barrier.
Two of, two of the leading 20th century advocates of a national popular vote were Senator Pastore, of Rhode Island, and even more adamant was William Langer of North Dakota, one of the smallest states in the country. So, but I- I think, I think the small state opposition may be really something of- of- of a red herring in these political debates. On the federalism question, I mean, yes, I think it is true that this would represent a transfer of some authority to the federal government with respect to elections, which would match the transfers of authority to the federal government that almost every other domain of life that have occurred over the last 225 years.
The fact is the countr- the country has changed, it is also true that our- that our notions of what constitutes democracy has changed. The commonsensical no- I mean, part of the, one of the core problems, [laughs] perhaps the core problem of the Electoral College these days, is that it does not conform to people's everyday normal notions of democracy, which is that, "The person who wins the most votes gets the office."
That's true, as far as I know, for every other office for which their elections are held in the United States, from gubernatorial elections to student council presidents. And as to, as to the geography question I think that you know, I- I guess I would challenge that in some way, because it's true that if you look at red and blue maps just by state the geography can look as though it has a kind of coherence. If you look at it by county, it looks extremely different. And what you see within the red states are along the rivers, and in the cities, and where there's a, a lar- b- basically ... and now, especially where there are large black populations, you have blue areas whose actual votes for president are not being counted at all.
Jeffrey Rosen: [00:30:13] Great. So, James you- you've heard the good responses. First small states have advocated reform, second, that w- we now expect more popular democracy, and third geography points in different directions. Your, your response.
James Ceaser: [00:30:26] Well it is true that we've seen a centralization of of politics in the United States, that's indisputable. But the, the question is: Do we wanna take that to the absolute limits, and is that a good thing, or is now a- a- a ch- a chance to, to state the limits, what the limits are, and they don't go that far? So in, in, in a way that that would be where the debate is.
I think these things still do matter and, and the danger of over centralization seems to be one of the great themes, at least of one of the parties traditionally, maybe not this time but traditionally, in the United States. Should we continue this centralization of everything? What about federalism? What about more power being delegated to- to- to lower units? Isn't that a kind of democracy in and of itself? Isn't that the original idea of the union?
So I agree with that the- the issue should be joined, but it's not as if the fact, the mere fact that we've had centralization is a good argument for more centralization. It could just as easily been any arguments saying, "We've seen enough and let's let- let's put a- a stop sign right here," or in a way, reverse it in part. There's also the question once we get into the technical elements of this. The question of what really would replace the federal college.
Most people who've called for amendment, not all, have never said that it should merely be done by the plurality vote, simply. Most of the proposals have had something like this, "The plurality winner of the popular vote should become president. But there's a threshold over which we, thi- that the plurality should exist." As we have in Southern, some Southern primaries. You don't want six or seven people running and someone becoming president with 29% of the population.
So, most proposals ha- have included the idea of a- a runoff election, "If no candidate receives more than 40% of the popular vote, a- as a winner, then we'll have a runoff between the top two." So there we enter into an entirely different system, entirely different system in which third, and fourth, and fifth parties would have a real incentive to enter, and people whatever real incentive to vote for them, by virtue of the fact that they could throw the election into a second round, and then play some role in negotiating in the second round.
There are lots of implications of the changes. So, before we go in this direction, we at least have to have an idea of what really is the alternative to the ... What is the alternative proposal to the Electoral College system?
Jeffrey Rosen: [00:32:45] Very interesting. Alex so, of course I want you to respond to James's co- concern about what the alternative would be, and ask you for what your preferred alternative is, but I think you may also been holding in reserve some arguments against the Electoral College that you talk about your new- new book. So, if you want to fire away on that score first, that would be great.
Alex Keyssar: [00:33:07] [laughing]
Jeffrey Rosen: [00:33:08] We're all, we're all waiting by the mics. [laughing]
Alex Keyssar: [00:33:12] Right. Well let- let- let me, let me ... I- I- I think, I think I know what well, you know what you're referring to, and let me, let- you know, let- let- let me, let me state that argument from the book, and then, and then move on to, to James's f- though- thoughtful points about concerns about what we would replace it with.
But, but eh, to- to ju- to just you know, put this out there and again you know, the b- the book's not out, but it will be, and this argument is prominent in it. Which is that we also have, eh, it, you know, and understanding our history, and doesn't necessarily bear on what we should do today, but understanding our history we really also have to understand that the preservation of the Electoral College in the 19th, and in the 20th century, into the, you know, in u- until [laughs] 1970 at least, is very much tied to the politics of race in the United States.
The fact is that the South and Southern Democrats opposed anything that would approach a national popular vote, because it would've meant that white Southerners lost the electoral power that they wielded through first, the Three-Fifths Clause. And then after the Civil War, and after 1890, what you might call the five-fifths clause in which each state i- in the South got full representation in Congress, and in the Electoral College for African-Americans, and yet they were not permitted to vote, in effect, whites were voting for them.
And it was for that reason, that the South wh- basically served as a veto-faction preventing reforms until quite recently [laughs] in our history. Indeed, if you look at the time whe- the episode when we came closest to abolishing the Electoral College and replacing it with the national popular vote, which was in 1969/70, you will find that the ha- an amendment to do, to do that, passed the House, overwhelmingly, and was defeated in the Senate by a filibust- by a filibuster led by Southern Pro-Segregationist Senators. So, that eh, again, tha- you know, that's not a reason to change it today, but it's a part of the history, and a part of the reason why the institution has not changed earlier.
Going back to the to the, to the question of the present, and you may have to cue me about some of James's precise points, but I think, I think he is certainly right that there will be many, if there is a national popular vote, there will be many implications of that. I think it will mean the standardization of procedures and perhaps of suffrage laws. Which I personally do not regard as as something that- that is, that is unwelcome, but I think it is, it is, it is certainly true.
I think most nation-states have survived having national rules for elections, and not having them done by province or state, but you know, that's something that we can talk about, and there, there would be there would definitely be implications. And then, I'm forgetting s- a a key point. Can you cue me on
Jeffrey Rosen: [00:36:19] Okay. He- he was, he was concerned about the emergence of strategic third parties who would try to, yeah-
Alex Keyssar: [00:36:23] Ah, y- yes, no. And, and that, and that is something which could happen, but then again, w- w- strategic third parties are not absent in the current system. In the current system they have to be geographically based. In fact, that's what George Wallace was, in 1968. And it was the threat of the Wallace Candidacy and the fact that he might emerge as a kingmaker, that gave some energy to the reform movement of the late 1960s and early 1970s.
So, I don't, I don't think it's an either/or. It's a question of, are you worried about ideological third parties that are spread nationally, or are you worried about regional third parties that could, that could pick up some electoral votes?
Jeffrey Rosen: [00:37:03] James let- let's talk more about the kinds of candidates who are emerging from Electoral College, and it- and its alternatives. In y- your book about presidential selection you talk about the concern about demagogues. So, if Electoral College isn't filtering them out, and today the parties aren't filtering them out, who is filtering them out?
James Ceaser: [00:37:21] Well, that's the issue. [laughing] The parties no longer [laughing] ... The parties no longer, in their rules, have very filtering role to play, somewhat but not- not- not- not very much, and therefor, we've opened the system up to exactly what the Founders were worried about, that you ... and- and- and exactly what Martin Van Buren was worrying about. But that's not an issue of, of the Electoral College anymore, that's elec- an issue more of the political parties.
So, what- whatever problems we have there, we can learn from the concerns of the Founders, in their, in their conception of presidential selection. They were also concerned, of course, as Martin Van Buren was, with the length of campaigns, the fact that now it seems that we're more interested in the campaigns than we are in governing.
Alex Keyssar: [00:38:02] [laughs]
James Ceaser: [00:38:02] I do want to remind you that the electio- the purpose of an election is to get a president, not to have a president in order to have a campaign. We've reversed this psychologically in our interest with campaigns, they are more interesting, but that- that's not what a constitutional system is. So, I wouldn't attribute that problem to- to the, to the e- e- electors.
I would mention now one thing that m- maybe [inaudible 00:40:55] ... In favor of, of a change, or at least conception, the fact that with our current system, with the number of so-called swing states, which are fairly limited, is that the campaign concentrates in only a few areas of the country. And in the other areas where the outcome is known, the candidates don't show up much, unless it's to go out to Los Angeles and pick up a- a lot of money, that is for Democrats, from people in Hollywood. But the candidates don't show up in, in many parts of the the country. It's irrelevant. They know how it's gonna turn out.
So, in effect this, our national campaign, is, is not fully national when it comes down to the actual eh, campaigns and expenditures of resources in a presidential election, and that's a real issue. That will change as geography changes. We've gone through a s- a curious period now, in which [inaudible 00:41:45] kind of locked into who's a Democratic state, what's Republican state, and then if six, or seven, or eight states in between, that could change quite rapidly in the years to come. So, that may not be a permanent problem, but it certainly is one that speaks in favor thinking about the system we have now.
Jeffrey Rosen: [00:39:27] Great. So, Alex, James has argued for you on the geography point, also although said that might change, but I- I wanna, you know, really focus on this point about demagogues. Is it possible that if strategic third parties arose, that would make demagogues more or less likely to win?
Alex Keyssar: [00:39:46] I think it's hard to say. I mean, I- I know that's a, that's a wishy-washy answer, [laughing] but but in fact, I think it's true. I th- I- I- I think, I think it's, I think it's difficult to say, and I think that and I'm, I'll be, I'm being very praecentus in my response here, I think that there are other ... that there are shortcomings in other dimensions of our political culture that worry me more, in terms of producing or tolerating demagogues, than the stru- than the actual structure of the elections.
You know, I'm, I'm very worried about the use of the use of media and [laughs] the decline of truth [laughs] as a c- in, in political discourse. But I- I- I don't know, I just don't know whether cha- plausible changes that we could make in the, in the structure of elections, or election processes would have much impact at this point.
Jeffrey Rosen: [00:40:41] James you, in- in- in your book, and in fu- subsequent interviews, identify a series of goals that a selection system should achieve: Promoting candidates with presidential character, b- the session to power should be legitimate, the executive should have qualifications for office, and highly ambitious people should be prevented from taking office. I'm reading from a great interview with you in The Atlantic recently. If the Electoral College can't achieve that, and popular system can achieve it, what electoral reforms could achieve those goals?
James Ceaser: [00:41:11] O- one qualification in that interview, I didn't say, or didn't mean to say, in that interview that we don't want highly ambitious people to become present.
Jeffrey Rosen: [00:41:18] [laughing]
James Ceaser: [00:41:19] That's like that's impossible. The idea is to channel the ambition in a certain direction, and that's what the Founders had mind. Channel the ambition in a wa- instead of towards being a good campaigner, towards establishing a record that would give you a reputation that the people would respect. So, it's a, and it's a whole system of channeling ambition, right at the top, which sends signals all the way down. What's the character politics and how do you achieve p- political progress as you ... on your way up the top?
Well we, we have democracy. We've become more and more democratic in, in our systems. It's very difficult now, there's a group of people in Washington who want to go back to something like the convention system. And I one of my earlier books, right after these reforms took place was called, 'Reforming the Reforms' right then. That - tha- ... We are as far away now from the reforms of the parties in the, the, the 1960s and 70s, as Martin Van Buren when he became president was from the founding.
We've gone through a- a- at least 40 or 50 years, it's not easy to erase that, I would not recommend the same thing today. Systems of legitimacy a- are such that, even if we look at this last election, and the results of this, the Democratic Party a- and ... is probably gonna question, rather than confirm, the idea of superdelegates. The Republican Party with its current victor, is no way in favor of limiting the democracy in the selection process. We have the results of democracy, and no easy change comes from that. We have to live with the problems of democracy.
And as for the, some of the consequences of of truth and discourse ... and these, in some ways, are causes of what we have now, but they're also consequences of what we have now. When people campaign for office in a certain way, that sets the standard of what's considered good campaigning, and rational campaigning, or at least successful campaigning. So, there's always an interaction between culture and institutions which no one has been able to figure out with scientific clarity.
Jeffrey Rosen: [00:43:15] Wonderful. Well, I think it's time, gentlemen, for closing arguments. This superb debate has taught me more about the Electoral College than I expected to learn, and it's just been marvelous. So what I want you each to do now, is as succinctly and eloquently as possible sum up the arguments for and against retaining the Electoral College. And Alex I think we're gonna begin with you. Please give us the arguments against the Electoral College.
Alex Keyssar: [00:43:43] I think, I think the core arguments are- are- are fairly straightforward. The first is that a, a national popular vote would be more democratic. It would've avoid the circumstance that we have today, where [inaudible 00:46:55] takes office who did not win the largest number of votes, which is my standard and, I think, the standard of most of us of what a democratic outcome of an election would be. I think that is really the central argument.
And I think tha- I think a second argument which has been referred to, is very important, which is that the current structure is deforming our electoral [inaudible 00:47:18] ... -pains, and focusing them entirely on the so-called s- [inaudible 00:47:22] states, and paying very little attention to what is going on elsewhere in the country, and also limiting the opportunities for civic and public engagement by people who do live elsewhere in the country. I- I mean, I- I- I you know, I live in Massachusetts, I have students in Massachusetts, in an election you know, year, they say what can they do?
Well, actually, this year I could say, "Well, go to New Hampshire." [laughs] 'cause there's a competitive election there, but otherwise, what you say to young people? You know, you say, "Write a check or a dr-" you know, "Quit, quit your job and, and move to Ohio, if you want to have a role in the [laughing] in the, in the presidential election." so, I think that, you know, the core ... I- I think, I- I think those are just simply core virtues of a national popular election, and I think that that's why that's the system that's used in every other democratic country in the world.
Jeffrey Rosen: [00:45:15] Thank you so much for that, and James last word to you. Please give us the arguments in favor of retaining Electoral College.
James Ceaser: [00:45:22] First thing I wanted to say is that we- we don't know who would've won the national vote, if we had had a system of national vote. That argument should pu- be- be put aside. The candidates competed under this system, they spent their resources and time under this system, it's impossible to say who the real national vote winter is, as I'm sure everyone realizes. Y- you can't change the rules; the strategies change with the rules.
Still, there is this question of- of w- in principle, in the future, whether it's better to have the national vote winner than the system we have. I am very reluctant t- to change in- in any case constitutional principle, and a constitutional institution, especially when I don't see the concrete alternative before me, and the effects that it could have. I do see some dangerous effects of, of change of this. It as one step down thr- the road, of making majority rule, national majority rule the s- the principal, simply.
Not just for this office, but why should we have a Senate, and why should the votes of a minority of states a minority of people in smaller states, have legitimacy over the - the outcome of what would ... everything would be based on population. It's not a s- a s- a- a- a- a system of majority rule in the states. That's that's the way it was forn- founded, and that's the way I'd like to see it continued.
I'm especially concerned about the nationalization of ev- of everything. We've gone far enough down this road. The nationalization of po- of politics, in every way. Whose the elect? What constitutes the election? What are the rules of electora- of- of- of eligibility? The entire system would swing to this. And finally, I do worry about th- this problem of changing, disincentives towards having moderate parties to the extent that we have them, in opening this up to something unknown of a cascade of parties in a two- tier election as they've had in other countries with, I think, very poor results.
Jeffrey Rosen: [00:47:10] Wow! James Ceaser and Alex Keyssar, thank you so much for an illuminating, surprising, and genuinely educational discussion of the arguments for and against the Electoral College. I've been involved in several of these discussions recently, and this one has been, by far, the best. Alex, James, thank you so much for joining.
James Ceaser: [00:47:27] Thank you. It's been a pleasure.
Alex Keyssar: [00:47:29] Thank you, Jeff.
Jeffrey Rosen: [00:47:32] Today's show was engineered by Jason Gregory, and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. Get the latest constitutional news and continue the conversation on Facebook, Twitter, and using @ConstitutionCTR. We wanna know what you think of the podcast! Email us at [email protected], or me [email protected]. Please subscribe to We the People, and our companion podcast Live at America's Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People's a member of Slates Panoply network. Check out the full roster at Panoply.fm.
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