Trump is why the framers created the Electoral College

This blog originally appeared in The Hill. 

The possibility of a second Donald Trump presidency provides perhaps the strongest case ever for the Electoral College. Were the Electoral College to work as the Framers originally envisioned, there is no chance Trump would even be a serious candidate in 2024, let alone 2016 or 2020.

The Electoral College is perhaps the most maligned and misunderstood institution in American politics. There have been more efforts to alter or abolish it than any other institution, and polls suggest large percentages of the public support replacing it with a direct popular vote for president.

So why did the constitutional Framers create the Electoral College?

Historian James MacGregor Burns describes the U.S. in 1787, at the time of the drafting of the Constitution, as an experiment. It was an experiment in popular government. The world was full of monarchies, but nowhere did democracy exist or was there a government where the people could select their leaders.

As the constitutional Framers debated how to structure the new government, “fear” was the word of the day. Slave states feared the free; small states feared the larger ones. Everyone feared that if the new Constitution were framed wrong, they would lose. These disagreements led to the infamous three-fifths compromise, where slaves would count only as partial persons in determining population for congressional representation. Additionally, a recent uprising by farmers, known as Shay’s Rebellion, meant many at the convention feared that the people might not be capable or knowledgeable enough to vote.

When all this fear came to the presidency, the question was how to select that person. Alexander Hamilton originally proposed a president who would serve for life. While there was some talk of direct election of the president, there was little support for it. The less populous states worried that a direct popular vote would mean they would be dominated by states with more voters. The slave and free states each feared that the direct popular vote might work to their disadvantage. Thus the compromise — the Electoral College.

The idea was for the legislatures of each state to select electors who would be temporary, beholden to no one, with the sole duty of picking the president and vice-president. The presumption was these electors would be of sound judgment and character, and they would make the best choice for president. As Alexander wrote in Federalist No. 68: “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Similarly, James Madison worried that with direct elections, “The ministers of foreign powers would have and make use of the opportunity to mix their intrigues & influence with the election.” Pierce Butler, another constitutional framer, worried that the “two great evils to be avoided are cabal at home and influence abroad.” The Electoral College would address both.

This system was also defended as protecting the minority from the tyranny of the majority. A direct popular vote might result in small states or particular regions or interests being ignored. The Electoral College was, as political scientist Martin Diamond once argued, the check on populism that might go bad.

But partisan politics quickly undermined the original vision of the Electoral College, as each state sought to control its electors and how they would be selected. In the early nineteenth century, as the spirit of democracy spread, legislatures gradually let the people vote to select the electors. Later on, states changed their laws to allow for each qualifying candidate to designate their own slate of electors, with popular elections determining whose slate was entitled to cast the electoral votes. Finally, fearing that the electors might not vote as the people decided, “faithless electors” laws were enacted to compel them to vote the way the popular vote went. The Supreme Court upheld such laws in Colorado Department of State v. Baca.

Changing notions of what democracy means have led to erosion in support for the Electoral College. Five times in American history — 1824, 1876, 1888, 2000, and 2016 — the winner of the national popular vote lost the presidency to the winner of the Electoral College. Many Americans saw this as undemocratic and urged that the Electoral College should go. One alternative is the National Popular Vote, a compact for states to cast their electoral votes for whichever candidate wins the national popular vote.

Now enter Donald Trump. Twice impeached, although not convicted; allegedly the beneficiary of Russian interference in 2016; now facing two indictments, with more possibly coming; already held liable for sexual harassment, and facing many other lawsuits. He is implicated in the January 6 attack on the Capitol and expresses no remorse for his behavior. By one count, he lied more than 20,000 times in office.

Yet Trump’s base is with him. He is the odds-on favorite to win the GOP nomination and perhaps the presidency again. For the first time, America could have a convicted felon as president.

Our constitutional framers would have declared him unfit to be president. Were the Electoral College operating how they had originally intended, there is no way Trump would now be a viable candidate for president. Perhaps the prospect of a second Trump presidency is the best argument one can offer for retaining the Electoral College.

What’s an Impeachable Offense? We Don’t Know and that is the Problem

 After the 57-43 Senate acquittal of Donald Trump on the impeachment charge of inciting insurrection

against the government we are constitutionally left with a question:   What is an impeachable offense so serious that it merits the conviction and possible removal of a president from office?  As a result of this last failed impeachment this tool of controlling and disciplining abuses of presidential power is effectively dead.

US constitutional framers inherited the impeachment process from England.  In the battles for supremacy between parliament and the monarchy, the former used impeachment as a check upon the crown’s ministers, using the tool to remove those who abused their powers.    Impeachment was not a tool to be used against the monarch–the only or ultimate tool was the Glorious Revolution of 1688 resulting in a vastly weakened monarchy which was compelled into signing the English Bill of Rights in 1689.

The US constitutional framers too were fearful of strong executive power. US independence from England was precipitated by perceived abuses of power by King George III. The 1776 Declaration of Independence, especially the second half, is a catalog of a bill of particulars against the King.  Reaction to strong monarchical power produced America’s first constitution with no independent president.  By 1787 this was seen as a problem, and the task of the framers was to constitutionally produce a president with neither too weak or too sufficient of powers.

While Alexander Hamilton in Federalist Papers numbers 70-74 celebrated a strong presidency, other constitutional framers such as Benjamin Franklin and James Madison worried about abuses of presidential power.  Franklin declared that because it would be difficult to get a criminal conviction let alone an indictment of a sitting president, another tool was needed to check him.  Madison and others worried that limiting checks on the president to criminal violations might miss broader abuses of power including mal-administration.  They thus settled on the British impeachment model as a tool or remedy.  They adopted the phrase “treason, bribery, and high crimes and misdemeanors” as grounds for impeachment.

Originally the impeachment process called for the House to impeach and the Supreme Court to try the charges.  But later on during the constitutional convention the trial was moved to the Senate.  But at no point did the Framers clarify critical questions such as what is a high crime and misdemeanor; what standard of proof is needed to indict or convict; could one impeach or convict after a president left office; and if and when could the Senate vote to bar the president from holding future office?  Neither the text of the Constitution nor the constitutional debates clarify these questions, and English historical precedent is equally murky. Additionally, keep in mind that at the time of convention, political parties were assumed to be bad and hoped not to exist, and the Senators were appointed by state legislators and presumed to be above politics.  As a result, House indictments and Senate trials and the concepts of checks and balances and separation of powers  would place the country before the party.

Over time so much has changed.  Parties flourished and dominated American politics, especially today, in ways the Framers feared.  Senators are elected and captured by partisan politics.  These two factors alone changed the impeachment process. American history shows that.  Moreover, presidential power has vastly expanded, raising fears of what Arthur Schlesinger, Jr.  once called the imperial presidency.

Five serious impeachment processes have been initiated against US presidents (Andrew Johnson 1867; Richard Nixon 1973; Bill Clinton 1998; Donald Trump 2019; Donald Trump 2021).  All five started as investigations by rival parties, although Nixon’s enjoyed bipartisan support in the House Judiciary Committee vote to recommend to the entire House impeachment.  Had Nixon not resigned, who knows the final result.

But in the four remaining impeachments, House indictments and Senate trial votes largely followed party lines.  The fact that Trump’s second Senate impeachment trial resulted in the most  bipartisan vote ever with seven of 50 Republicans voting to convict still is not much of a story to tell.  Moreover, there have been four trials and four acquittals.  It’s just not clear now what is a convictable offense.  

The impeachment process has been trivialized and rendered powerless.  Indictment for lying about a sexual affair (Clinton) was a mistake, bringing two impeachments against Trump when there was no chance of a guilty verdict did equally as much damage to the process.  If seeking to pressure a foreign official to investigate a US president’s political rival or inciting an attack on the US Capitol were not convictable offenses then what is?  Short term partisan politics, anger, or the false belief that a point had to be made have done longer term damage to checks on presidential power.  Talk to any smart prosecutor.  Do not bring charges against someone unless you have a reasonable belief that you are going to get a conviction.

Trump twice abused his presidential power and deserved punishment but impeachment was the wrong strategy. Trump lost the election, he faces possible post-presidency indictments, and public opinion declares what he did leading up to and including January 6, 2021 was wrong.  History would have rendered the judgement and precedent here.  This acquittal renders history less clear.  It sets the president for whether impeachment will ever be a tool to check presidents.  It leaves open the very problem Democrats wanted to address–how to check abuses of power of presidents leaving office.  This checking of presidential power was the problem US constitutional framers sought to address in 1787, and it is even less clear now what the solution is.

The Lessons of Charlottesville: Must we be tolerant of the intolerant?

Does the First Amendment require us to be tolerant of the intolerant?  The simple answer in the United States is yes, but only up to the point of violence, and only up to the point of where it involves government efforts to suppress speech.  Beyond that, tolerance is a social issue, and that is perhaps where the real danger lies in terms of threats to freedom and free speech.
Charlottesville was ugly in so many ways.  But the central question of the week is need we tolerate the intolerant?  There is the legal answer, and the social answer.  Legally, deciding the limits of free speech has been perhaps one of the most profound and vexing questions in American law.  Do we have a right to advocate hate?  The overthrowing of the government?  Should we be allowed to burn crosses, flags, or draft cards?  Is sexually-charged language or images discrimination or harassment? Can we, as Supreme Court Justice Holmes Jr., once mused, falsely cry fire in a crowded theater, and  is it permissible for political candidates to lie?  How far can our words go before they cross a line?  When has the line been crossed from “names will never hurt me” to where they act as “sticks and stones?”
The Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), a case involving hooded and armed KKK members standing around a burning cross advocating potentially violent action, defined the line.  Citing a litany of precedents it held that:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Speech is speech, and it is protected until such time as it advocates imminent lawlessness that is likely or imminently to occur.  In Brandenburg, the Court ruled the KKK did not cross the line and their advocacy was protected speech.  Many might be surprised by this decision, but the Court drew a tough line in the sand–free speech is sacred and the government ought not to censor or prosecute it, no matter how ugly and hateful, unless it crosses the line into imminent violence.  That line might have been crossed in Chrlottesville with the violence.
The price to pay for freedom is that others have a right to say hurtful things or things we do not want to hear, and the government should not be the arbiter of what it truth.  As Justice Robert Jackson well-stated it in West Virginia v. Barnette, 319 U.S. 624 (1943): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
The First Amendment prevents the government from suppressing free speech.  But what about society?  The First Amendment does not apply to private actors or public opinion.  Private employers, internet hosts, and private individuals do not have to follow the First Amendment.  I am free to shun ideas I dislike and to disapprove of them and those who hold them.  Public opinion is the ruling sentiment in the US, for good and bad.  At its best public opinion and majority rule can do great things such as advocate for civil rights and equality, but at it worst public opinion is a destructive, censoring tool.  Fifty percent plus one of the population at one time sustained slavery, denied women the right to vote, and prevented same-sex couples from marrying.
James Madison, the principle architect of the Constitution and the Bill of Rights, as described in Federalist Paper number 10,  feared the  power of the majority faction to act “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Alexis de Tocqueville in his famous Democracy in America called this as the problem of the tyranny of the majority.” It is the problem of how do we balance majority rights with minority rule. The Constitution, and the Bill of Rights, are complex machinery that help to manage intolerance, abuse of power, and freedom by restraining the government.  At the end of the day, people can believe what they want, including hurtful and discriminatory things, but they Constitution and Bill of Rights stand as guardians against that.  Again to quote Justice Jackson in Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.


Individuals can believe what they want, but they have no right to have their personal prejudicial beliefs translated into public policy.  
Yet James Bryce’s American Commonwealth saw something even more fearful than a tyranny of the majority–the fatalism of the multitude.

The tendency to acquiescence and submission, this sense of insignificance of individual effort, the belief that the affairs of men are swayed by large forces whose movement may be studied but cannot be turned, I have ventured to call the Fatalism of the Multitude...But the fatalistic attitude I have been seeking to describe does not imply any exercise of the power of the majority at all..In the fatalism of the multitude there is neither legal not moral compulsion; there is merely a loss of resisting power.

Elisabeth Noelle-Neumann’s The Spiral of Silence goes even further, describing the power of public opinion to encourage people to self-silence themselves.  The problem Madison, deTocqueville, Bryce, and Noelle-Neumann all noted was the suffocating power of public opinion and intolerance to silence dissenters, the minority, or those who have contrarian opinions.
We may and we should, in light of Charlottesville, cheer for those who want to denounce the KKK, Nazis, and white supremacists, but we should not be given the power to deny them the right to speak.  These latter groups have an right to believe what they want, and the rest of us should do our best to educate and convince them of the error of their ways and urge them to change their mind.  However, simply suppressing their speech does not eliminate hate, fear, and prejudice and the tools we use today to censor our enemies can another day be used against us.

Electoral College Do Your Job: Make Clinton President

You’re heard the news stories over the past two days that the electors in the Electoral College could still swing this election back to Hillary Clinton when they meet across the country to cast the ballots for their states on December 19. You’ve heard there is a petition with hundreds of thousands of signatures encouraging just that.

Constitutionally they have the power to do that, and if they care about democracy and the will of the people, that is the right answer.

First,  I did not support or vote for Hillary Clinton.

Having said that, I believe that because Hillary Clinton did win a majority of the popular vote, she should be our next President.

That would be the case if the President were selected directly by the people. Majority rule by the people through elections is central to almost everyone’s conception of what a modern representative government is, and in democracies around the world, the people select their leaders that way.

Not so, currently, in the United States. Instead, the President is selected by the Electoral College.

That should not happen in this day and age. The Electoral College model of electing a leader is an outdated, anti-democratic institution.

In 1787, when those who framed our government deliberated the drafting of the Constitution, the Electoral College was selected as the mechanism to pick the President for three reasons.

First, it was a by-product of a compromise of a conflict between the big versus small states. Sparsely populated states feared they would be ignored if population were the basis of Presidential selection.

Second, southern states feared that if population were a basis to pick a President the populous northern states would outlaw slavery. It was this same fear of slavery being banned that led to the famous “three-fifths compromise” that counted slaves as only partial humans for the purposes of taxes and representation.

Third, the framers of the Constitution and our government simply feared common persons, seeing them not as competent to select a position so powerful and important as the President.

Alexander Hamilton, writing in defense of the Electoral College in Federalist Paper 68, declared of the President “the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” Yet, he declared that such a choice should be entrusted to a small group of people consisting of “men most capable of analyzing the qualities adapted to the station. . .[and who] will be most likely to possess the information and discernment requisite to such complicated investigations.”  In his Notes of the Debates in the Federal Convention of 1787, James Madison quotes several of the constitutional framers who opposed directed popular selection of the President, such as Elbridge Gerry, who saw the people as “uninformed, and would be misled by a few designing people.” And in Max Farrand’s definitive The Records of the Federal Convention of 1987, Roger Sherman said that the people will “never be sufficiently informed.”  Moreover in his classic defense of the Electoral College, historian Martin Diamond saw the institution as a means to protect minority rights, guarding the country against regionalism, sectionalism.

The Electoral College was the product of slavery, racism, and distrust of the people to make their own choices. It is part of a Constitution silent on the right to vote, and to this day there remains no constitutional right for the people to vote for President. The Constitution ignores the popular vote, and delegates to the states the power to select the Presidential electors. It is merely by the grace of state laws that we are permitted to go to the polls to chose the electors who eventually chose the President.

With this election, we will now have experienced five elections where the winner of the popular vote was selected as President but where that winner was not allowed to serve as President. Hope that the Electoral College would protect small states from being ignored or that the Electoral College model would prevent only a few states or regions of the country from determining the presidency have not lived up to the founders’ intent.

As I pointed out in Presidential Swing States: Why Only Ten Matter, the Presidential election process has fallen into a predictable pattern where only a handful of swing voters in a few swing counties in a few swing states ultimately decide the election. It happened again in 2016.  This is hardly democratic, producing a system where the voices of only a few are heard and the majority are ignored or disenfranchised in many states.

The Electoral College is simply outdated, it distorts the views of the majority in the ways the constitutional framers never would have envisioned, and it operates with a view of democracy and of the people that is
inconsistent with contemporary conceptions of what a representative democracy should be–which is that the people have a constitutional right through free elections to let the majority pick their President.

So what is to be done? A 2011 Gallup poll indicated that 62% of the public supports amending the Constitution to allow for direct popular vote of the President. However, amending the Constitution is near impossible, and doing so would not change the outcome of this election in favor of the candidate who was selected by popular vote.

There is another option that can be exercised, and I urge our electors to truly consider it. Come December 19, when the electors of the different states convene across the country, they should simply exercise their legally-viable independent judgment that the constitutional framers envisioned and do what Alexander Hamilton declared is in the best “sense of the people”–and cast their vote for Hillary Clinton for President.

It need not even be all the electors who do that. Simply having some of the electors in the close swing states of Florida, Michigan, New Hampshire, North Carolina, Ohio, and Wisconsin split evenly to reflect the popular votes in those states would be sufficient to ensure the people’s choice is made, that the people’s are heard and valued, to show the people—each one of us—should and do count.

 It would not be unprecedented for electors to cast their votes independently. Over time there have been 157 “faithless electors,” as they are called, members of the Electoral College who did not vote for their party designated candidate who won the state. The most recent was in 2004 when an anonymous elector in Minnesota voted not for John Kerry but John Edwards for President.

The Electoral College may be a broken model-yes, but it’s our existing model-yes again, so why should the electors not do what can and should be done, which is legal and ethical within the framework of the existing model, and vote for the popular candidate?

In voting independently, an elector would be doing exactly what the constitutional framers intended; the electors would be using their positions to vote in line with the sense of the people–in this case, following what the majority voted this past November, which is to make Hillary Clinton the next President of the United States. 

The Constitution and the Failures of Contemporary American Politics

Note:  This column recently appeared in Politics In Minnesota.

Is the polarization and dysfunctionalism in contemporary American politics an accident or  a product of design failure?  The more one thinks about it the conclusion may well be that the many of the problems now confronting the United States are the product of a faulty Constitution, or at least one that may perhaps have outlived its times.
    Many mythologize our Constitution and the men who wrote it. This seems especially true among the Tea Party faction of the Republican Party. They see in James Madison, Alexander Hamilton, and other Founding Fathers a “genius” to the American political process (as historian Daniel Boorstin described it) where the product of their efforts was creation of a representative democracy that really reflected the first three words of the Constitution–“We the people.” Yet historian Richard Hofstadter counseled against seeing the Constitutional Framers as gods, but instead as who they really were–smart politicians with their own interests, prejudices, and limitations who affected compromises to create the American political system.
    Among lost milestones in 2013 was the one hundredth anniversary of the publication of Charles Beard’s An Economic Interpretation of the Constitution of the United States.  In that book Beard made a radical argument that the Framers were economic elitists who did not trust the common man, writing a Constitution to further their economic interests which they felt were threatened by America’s first constitution, the Articles of Confederation.  The Articles government according to Beard, was an economic disaster for business interests, and many of the constitutional framers were being hurt by this government.  The tipping point for them was Shay’s Rebellion, demonstrating to many of them, including Alexander Hamilton, the dangers that the people could pose to the rich.
    Beard’s book catalogues the economic background of the constitutional framers, all slaveholders or wealth businessmen except for a couple.  They wrote a document giving Congress vast powers to regulate and strengthen commerce, and it was also constitution that preserved slavery, stood silent on voting rights, and otherwise created a system of checks and balances, separation of powers, and other power-dividing mechanisms that made it difficult, as James Madison said, for majority factions to take over the political process.  Political scientist Robert Dahl described the Constitution too as a mechanism to slow down political change, making it difficult to effect reform or change unless there was significant time and consensus to achieve it.
    Beard’s controversial challenge was to assert that the complex constitutional system was not meant to produce democracy, but instead shield the rich from the poor and to entrench the power of the former forever.  John Jay, one of the framers and co-author of the Federalist Papers, once exclaimed that “Those who own the country should rule it,” while James Madison famously declared in Federalist number ten that: “But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society.”  For Beard, the real genius of American politics was how the Framers recognized the inevitability of class conflict but designed a political system than  transformed it into group competition, forever dividing the people among various interests, thereby sublimating strife between the rich and poor.  In short, as former Supreme Thurgood Marshall said, “We the people” was the reality of the Constitution, it excluded many from its promise and it took a Civil War, two civil rights movements,  and more than a score of amendments to even give faint meaning to the promise of these three words.
    Looking back over time one wonders to what extent Beard was correct in that the Constitution was designed to assure rule by a privileged elite or that, to update his thesis, that the polarization and dysfunctionalism in contemporary American politics is not just an accident but is exactly what the Framers wanted.  America is a society where economic privilege allocates political power.  Who votes, who runs for office, who gives money, and who benefits from our public policies is significantly determined by economic status.  The “winners” in the American political system look surprisingly a lot like the profile of the constitutional framers of 1787. 
    The Electoral College mechanism for electing the president along with the federalism it embodies have split America into regions since the early days of the republic.  Small states, such as in Senate, can gang up and filibuster legislation and thwart majorities even though they only constitute a small portion of the  population.  And in the House the requirement that every state receive at least one House member too gives disproportionate influence to small populations.  Couple that with gerrymandering and we have created a political system where there are increasingly fewer and fewer incentives to compromise.  This means fringe voices, especially in the political right these days, are given a virtual veto over reform.
    Certainly the American political system is not meant to be winner take all pure populism.  It is a balancing of majority rule with minority rights, but is the minority the Koch brothers and others with money, or those hostile to the rights of women, people of color, and the GLBT community?  The political process which was designed as a compromise seems increasingly unable to create the incentive to compromise, or at least it does not work because some do not want it to.  Instead of seeing our political system now as one where the slowness to change and demand to compromise  were viewed as virtues to protect liberty, it now appears to be one that is unable to act, paralyzed  by gridlock.
    If Charles Beard as updated is correct, one should not be surprised by what is happening across the United States.  The polarization and dysfunctionalism is either an intentional feature to preserve the power for a few, or as law professor Sanford Levinson contends, a sign of original design flaws in the Constitution that are now coming to haunt America more than two centuries later.  In either case, as we head into the 2014 and then 2016 political cycles, we should ask whether the Constitution we mythologize really is up to the task for the demands of the twenty-first century and if it is the cause of, or the impediment preventing the resolution of many of the pressing problems in contemporary American politics.

Making Sense of American Politics in the Age of Barack Obama

 Note:  On October 26, I will be flying to Moscow, Russia to teach at the Peoples Friendship University.  I will also be giving a talk at the American Corner, Moscow. This will be my fifth trip to Moscow. At the University I will be giving several lectures.  One of them is the one that I have decided to make as a blog this week.

Picture of me in 2012 in front of Peoples Friendship University with

 Professor Daria Stanis, my host.

A couple of weeks ago the United States was on the edge of a crisis.  Had Republicans and Democrats in Congress not come to agreement with President Obama, the United States would have run out of money and defaulted on its debts, potentially throwing the country and the world economy into a recession.  This crisis would have been a result of the Congress failing give the president to raise the debt ceiling which would have authorized him to borrow money to pay America’s bills.
    But this near missing of a crisis came on top of one that had already occurred.  On October 1, Congress and the president failed to reach agreement on a budget, forcing a partial shutdown of the government.  Even though an agreement was reached, it was only temporary and the United States may be back in the same place in three months.
    Moreover, as one observes the United States over the last five years while Barack Obama has been president, America has faced repeated political disagreement that seems to push the government from one internal crisis to another.
    How did all this happen?  To many Americans the partial governmental shutdown and the near default of the United States was hard to understand.  But no doubt to people around the world, including here in the Russian Federation, it must perplexing.  How could such a big and powerful country such as the United States face problems such as this?   Why is the United States so divided now, and what does it all mean?  How do we make sense of America?
    What I would like to do today is explain American politics to you.  For those of you seeking a better understanding of my country, my talk will try to give you a better picture of how our country operates and how it has changed in the last few years.  In particular, I want to explain to you two things about American politics.
    First, I want to briefly describe what I call the logic of American politics.  By that, I want to  explain how our constitutional framers designed the American political system.  I will argue that the  the design of our political system is meant to break up political power and slow down political change.  By that, there are no real single power centers in American government and that to get anything accomplished a significant amount of political consensus is required.
    Second, unfortunately that consensus has broken down.  This is where I shall discuss political parties in the United States.  My argument here will be that what the United States is presently experiencing is a significant political party polarization that is making it difficult to govern.  This is exactly where the United States is now and it explains so much about why the county seems to be moving from crisis to crisis.

The Logic of American Politics
    American politics was born out of a fear of a strong national government and the potential threat that political power could have upon the individual rights of citizens.  This was a fear from American colonial experiences with King George III of England, as well as a fear of mob rule during the early years after independence.  James Madison, one of the original authors of the American Constitution, once described the task of the American political system the following way.

   "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed."

The issue then is how to preserve individual liberty and republican government from the threats of majority faction.  This is the core problem of politics that Madison, the Federalist Papers, and the constitutional framers sought to address.  Phrased otherwise, the problem, as Alexis DeTocqueville would later ask, is how can the American republic deal with the threats of the tyranny of the majority?   Another way of stating it: How to balance majority rule with minority rights?  How does one allow for majority opinion to rule, as it should in a popular government, but not let it become destructive, acting impulsively or rashly when threatened?
    Thus, the American political system seeks to preserve individual liberty, or balance majority rule and minority rights, by placing all kinds of checks on political power.  The American political system was meant to make it slow to change, for power to become centralized.  The American political system has many features to break up power.
The government and election system of the United States is unique when compared to the Russian Federation as well as the rest of the world. Much of the formal structure of the government is outlined in the United States Constitution, with additional national, state, and local laws articulating both the structural and electoral systems for the country.
The first two defining characteristics of the United States are that it is a separation of powers government, not parliamentary, and it is also a federal and not a unitary government.  Both of these factors mean that political power in the United States is divided up among three national branches of government and between a national government and 50 states.  The purpose of this division of power is to protect minority rights, respect local decision making, and also to ensure that no one institution has too much political power.  This type of governing system also means that it is difficult to achieve significant political change in a short period of time, thereby encouraging the likelihood that elections will not produce dramatic changes in policy or political direction.
    Unlike a parliamentary system, separation of powers means that the president of the United States is elected separately from Congress.  The president serves both as head of state and head of the government.  Yet in America the president presides only over the executive branch of the government, with the legislative branch (Congress) headed by its own officers.  Because of the separate elections, it is entirely possible for the president to be of one political party, with Congress having a majority controlled by a different party or parties.  This is called divided government in the United States, and such a governing arrangement is not uncommon in the United States.
    Being a federal system means that there is in reality no national election for Congress.  The lower chamber of Congress is the House of Representatives, consisting of 535 members who represent districts spread across the 50 states.  Each district is on the same population.  There are 100 members of the Senate, with each of the states allocated two senators.  House terms are for two years and Senate for six.  In 2012, the entire 535 members of the House of Representatives was up for re-election, while only 33 of the Senators are up for re-election.  Because of the structure of Congress, effectively all of the elections for Congress are really local elections.  Thus, think of 2012 as a situation where there was one national election for president and 568 local elections for Congress.
    There is no proportional representation in Congress.  The United States has a Westminster type of elections—whoever receives the most votes in a congressional election is declared the winner.  Additionally, because of this type of system, third parties generally are not strong and therefore the United States is a two party system where at present Republicans and Democrats are in competition with one another.  Whichever party has the most members in the House or Senate controls that chamber.
    The reason why all this is important is that it is possible to have several variations of party control in the United States.  One could have a situation where the president and both houses of Congress are controlled by the same party.  This was the case when George Bush was president from 2003 to 2007. This occurred again in 2008 when Barack Obama was elected president.  But it is also possible to have the president be from one party and Congress controlled by another.  This again occurred under George Bush from 2007 until 2009.  Another scenario is when the president and one legislative chamber are controlled by one party and the other chamber is controlled by another.  This is currently the cases in the United States.
    There are major differences between the two houses of Congress in terms of their constitutional authority and how they operate.  However, in both chambers, it is generally possible for a minority slow down or stop legislation from passing.  Again, in theory the idea for this is to protect individual liberty or ensure political agreement on major issues.
    Finally, in addition to the United States dividing up power at the national level, America is also a federal system where power is divided among 50 subunits of government that we call states.  Within the states there are cities and other local governments.  Overall, political power in America is highly divided and in order to make any significant political change there needs to be basic consensus and agreement.  No one, not even the president, can simply order things to be done.

Party Divide in the United States
    American politics also operates with party competition.  The two major parties, the Republicans and Democrats, while they have historically disagreed on some issues, really shared some basic agreement on the role of government in our society.  Moreover, the two major parties, up until recently, were less ideologically polarized 20 years ago.
     American political parties used to be more coalitional and regional than they are now.  Parties were more likely to be mixed ideologically.  When I grew up in New York in the 1960s my governor was Republican Nelson Rockefeller.  One Senator was Republican Jacob Javits, the other was Democrat Bobby Kennedy.  The most liberal?  Javits.  The most conservative, Kennedy.
    We have seen in the United States a disappearance of moderates in the two parties.  There is a rise of straight party line votes in the Congress.  The Republicans have become more conservative, the Democrats slightly more liberal.  But more importantly, the Republican Party has seen the rise of the Tea Party faction, a group of ultra-conservative people who are pulling the Republicans further to the right.  The Tea Party also is less likely to believe in compromise, and they  do not believe that shutting down the government is necessarily a bad thing. It was the influence of the Tea Party in the House of Representatives that significantly caused the partial governmental shutdown and the near default.
    But the party divide in America is part of a larger social divide in the United States.  The Democrats and Republicans are a tale of two parties The Republicans are older, whiter, male, more Christian, and part of the Silent generation along with some older Boomers.  They vote against gay marriage, abortion, immigration, and favor smaller government.  The Democrats are younger, more female,  less white, less Christian, and they represent the  Millennials and Gen Xers. They favor gay rights, choice, immigration and diversity, and more government.  The two parties represent two generations and world views, and party of the intensity right now is a demographic contest witnessing the passing of power from one generation to another.  It also represents a racial polarization the greatest since 1988, and an identity shift as America moves from a White Christian nation to something else.
    In addition politics and geography now overlay and intersect.  There is a political sorting of living space by politics and geography.  We increasingly have Democrat and Republican neighborhoods.  We are divided politically by rural and urban.  The result is a decline in the number of real marginal or swing districts and such a problem is only accentuated by redistricting in some states (or conversely, even the best redistricting cannot overcome the political sorting we are experiencing).  There are only 50 or so competitive seats in Congress. The remainder are certainties for either of the two major parties.  Partisan districts create less incentive to compromise, reinforcing  polarization.

Conclusion
    So what does this discussion of the American political system and changing party structure mean in terms of understanding the United States?
    The partisan divide and political polarization that has emerged in the United States over the last 20 years has become very serious since Barack Obama was elected president.  America appears to be a politically divided country where there is no real consensus on some core issues about what government should do.  But even if there were consensus, the logic or structure of the American political system is being manipulated by a minority of the population to pursue its goals.
    This is not a problem that James Madison envisioned. He and the others who wrote the American constitution did not anticipate that a minority could be so powerful that it could affect the country the way it does now.  Nor did Madison and the framers envision a country perhaps so divided on some basic political values or issues.
    Barack Obama’s presidency is about generational change and in part the reason why the country is so divided is because we are witnessing a beginning of a significant generational shift in American politics.
    In the near future the United States will continue to face political division.  But over the longer term the changing demographics or population of the United States may resolve this problem.  As one generation dies off and is replaced by another, the United States will see a change values and  perhaps, then, a new consensus will emerge about where the country should go.

The People v. the Plutocrats and Political Scientists

    Everyone knows that the American political system is supposed to be based on majority will.  True, but only half correct.  It is actually a political system based on majority will subject to limits to protect minority rights.  Our political system was never pure populism and it should not be.  Respect for minority rights should not be viewed as a threat to democracy; instead, as recent debates surrounding ranked choice voting (RCV) demonstrate, the danger comes from the plutocrats and political scientists, both which seem to oppose it because either of fears that it threatens their power or because of the belief that the people are not smart enough to vote this way.
    James Madison  declared in the Federalist Papers (essays written by him, Alexander Hamilton, and John Jay in 1787 defending the ratification of the proposed American Constitution) that "all government rests on opinion."  Ultimately the best feature of popular government is that the people rule.  It is, as the first three words of the Constitution declare, about “We the people.”  Yet while the rule of the people is the hallmark of a representative government or democracy, the worst feature too can be that the people rule.  There is an ugly strain in American politics that begins with the Salem Witch trials that run to slavery, the subjection of women, the McCarthy hearings, and Stonewall.  Fear and prejudice can do nasty things.
    Yet the genius of the American politics (to borrow a phrase from historian Daniel Boorstin) is a constitutional system that seeks to qualify majority rule to protect minority rights.  It is a complex system of checks and balances, separation of powers, competitive elections, and a Bill of Rights that is supposed to accomplish that.   This is what is known as Madisonian democracy.
    The system does not always work.  Progressive era historians such as Charles Beard in his An  Economic Interpretation of the Constitution of the United States contended that the Constitution was  meant to support the interests of the economic elites in the country that were badly hurt by the first American constitution the Articles of Confederation.  The Constitution was written by rich property owners who supported slavery and property rights.  The minority they wished to protect from majority rule, for Beard, were the rich.  The American political system is one designed not by the people, for the people, and of the people, but one in spite of the people. The fact that 225+ years after the writing of the Constitution the profile of the leaders of this country looks much the same as those who designed it speaks perhaps to the bias against the people in American politics.  “We the people,” as former Supreme Court justice Thurgood Marshall pointed out, excluded the majority or the people in 1787 and the history of American politics has been a struggle to give real meaning to that phrase.
    Now how does all this connect back to RCV, plutocrats, and political scientists?  There have been lots of reforms and efforts to give more power to the people.  Perhaps the greatest threat to a democracy is the economic power of the rich and corporations. Former Supreme Court Justice Louis Brandeis stated it well: “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can't have both.”  The real battle for political reform in the United States needs to begin with limiting the ability of money and economic interests to affect the political process, This is the story of campaign finance reform. 
    But there are many other worthy political reforms that too are needed such as limits on political gerrymandering and guarantees on the right to vote.  But ranked choice voting too is a worthy reform.  It is a terrific experiment to give voters more choices.  It is based on the simple idea that voters have preferences and we should be able to rank our political choices.  We may have our preferred candidate, a second choice, and maybe a third one.  RCV is supposed to address two defects in the current system we use to vote.  The first is that candidates can get elected with less than a majority of the vote–a simple plurality if it is more than a two-person race.  This has been the scenario in Minnesota with the governor–no governor has received a majority of the vote since 1994.  We have had all minority governors.  Second, the current voting system discourages citizens from voting for third-party candidates less they fear they are wasting their vote.  Thus, there is a good argument to be made that the current way we cast votes is actually counter-majoritarian and that it  discourses people from voting for their preferred candidates.  This is hardly democratic.  Other democracies around the world have experimented with alternative voting systems to address these problems, with RCV as one possible solution.
    Minneapolis’ 2009 first use of RCV was inconclusive.  It was not a great test of it because of a popular mayor.  Few of the other races were decided or seriously affected by RCV.  But 2013 is different.  The mayor’s race could have up to 8-10 candidates and running as the candidate who wants to a second choice might make sense in a crowded field.
    But now some are claiming that RCV needs to be abandoned.  These claims come from plutocrats, those who fear that RCV will change the political calculus and upend their preferences.  They claim that it is anti-democratic, or that it is biased against the poor or people of color, or that it disenfranchises some.  There is no evidence to support any of this.  In 2009 there was a lot of voter error and spoiled ballots but in the end, only one ballot in the entire election was not counted.  The problems seen then perhaps were first time learning curve issues that could be addressed with more  voter education and training.  In my study for Minneapolis on RCV, I raised some concerns but ultimately did not find evidence of discrimination and a survey of voters found that 90%+ liked RCV.  Additionally, if a voting system allows for more choice among voters and strives to produce candidates who get a majority of the vote, is this not consistent with majority rule and serving the people?  Our current election system favors high name recognition and candidates with money.  No guarantee that RCV will break these trends, but anything that works to that end would be good.
    But a second criticism is coming from some political scientists who either do not like RCV or do not understand how it works.  Their central criticism is that RCV demands too much from people. It is hard enough, they say, for people to gather enough information and make choices about one candidate, let alone many and then ranked them.  The political science literature, they say, simply says this is beyond the capacity of the average voter.
    This is an elitist argument.  True, voters are perhaps not as well informed about as many things as political scientists would like them to be, but that does not mean that the people are incapable or expressing their preferences.  Under the current voting system, for good or bad, people make choices and there is no reason to expect they cannot also do so with RCV.  They do that in other countries and who is to say citizens in these countries are smarter than Americans or voters in Minneapolis.
    Finally, some political scientists just do not seem to understand or appreciate how RCV works.  They seem to think that electing someone on a second or third round of voting (assuming no first round winner with 50% + one of the votes) is anti-democratic or that the people will not stand for perhaps a protracted count of ballots.  By now Minnesotans are used to recounts and there has been no rioting in the streets.  Conversely, electing candidates to office who may turn out to be the compromise choice of the majority of voters may in fact prove to be more democratic, majority-enhancing, and prone to encouraging voters to learn and compromise than does the current process. The current voting process seems to favor voting against candidates (instead of voting for someone), selection of extremists, or simply support for the current two major parties even though the evidence increasingly suggests that the current political alignment of them does not match with most voters preferences.
    Overall, RCV may be one tool that can give real meaning to “We the People,” favoring the people over the plutocrats and the political scientists.

The Lessons of Gun Control: It’s Congress Versus the People

Should president Obama have been surprised that the Senate rejected almost all of the gun measures despite the fact that large majorities supported some of the ideas, such as universal background checks?   Not really.  In part rejection of the gun control measures speak to the power of money in politics or  the power of a well organized group to act more effectively than unorganized public opinion.  But more specifically, the gun measure speaks to a broader and more serious problem in Washington–how  Congress has become a counter-majoritarian institution and is now functioning in ways contrary to what and how the Constitutional Framers envisioned the government to operate.

Political scientist Robert Dahl writes in A Preface to Democratic Theory how the fear of majority faction or the tyranny of the majority dominated the concerns of the constitutional framers. According to Madison in Federalist # 10, a faction was:  "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

Factions threatened the public good and the rights of minorities.  Madison thought that minority factions–a group of people composing of less than a majority–could be controlled simply by the majority outvoting them.  The real problem was majority faction-the problem of the tyranny of the majority according to Alexis deTocqueville–or balancing majority rule with minority rights, that was the object of constitutional design.  The framers feared how a majority could capture hold of the American political system and use it to threat the public good or rights of others.  The constitutional solution was to break up political power and slow down the winds of political change.  Make it difficult to bring about quick political change.

To accomplish that, the Constitution devised  numerous mechanisms to break up political power.  We know these techniques–checks and balances, separation of powers, bicameralism, and federalism.  These are just the most famous of the institutional mechanisms to thwart majority rule.  But add to add two years terms for the House of Representatives, six year terms for the Senate (with no more than one-third elected every two years), and a four year term for the president and one can see how difficult it is to bring about rapid change in any election.

This is a brilliant design but somewhere along the ay Madison missed something–the power of minority factions.  He ignored or underrated how powerful a small, cohesive group could be, especially if it possessed significant resources.  In effect, a minority faction could effectively capture the government, turning it into a counter-majoritarian institution.  This is exactly what is happening now with Congress.

Public opinion polls demonstrate majority support for universal background checks for guns purchases, higher taxes on the wealthy as part of a deficit reduction solution, and same-sex marriage.  Yet despite this support on these and other issues, Congress, especially the House of Representatives, seems unwilling to act.   All this points to Congress’s counter-majoritarianism,
What is meant by counter-majoritarian? The term goes back to Alexander Bickel. A famous legal scholar from the 1950s and author of  The Least Dangerous Branch (1962).  Bickel’s book was written in reaction to the Earl Warren Supreme Court.  He was witnessing a Court that seemed willing to issue opinions that overturned acts of Congress and state legislatures, ignoring the preferences of the will of the majority in an effort to protect minority rights.  Bickel described this activity as counter-majoritarian.

Over the years Republicans and conservatives took Bickel’s comments as an indictment of judicial activism.  They loathed how the judiciary intervened in matters such as abortion, integration, and criminal due process issues such as the Miranda warnings, search and seizure, and the death penalty. The courts should stay out of what is rightly the task of elections, Congress, and the president to address.

The irony now seems to be a role reversal where Congress has become the counter-majoritarian institution and the Supreme Court the majoritarian one.  Look to the two same-sex marriage cases recently before the Supreme Court.  Despite public opinion now favoring same-sex marriage, the laws of Congress stand in the way.  The Defense of Marriage Act, as several Justices pointed out, is preventing states from changing their laws to reflect new societal conceptions of marriage.  The oral arguments in this and in the California Prop 8 case demonstrated a Court hoping that the political process would act (so that it would not have to) while at the same time recognizing that the majority process–in the case of California a ballot initiative–had broken down and the judiciary needed to act to get it working again.

But it is not simply the matter of same-sex marriage that it highlighting the role reversal for Congress and the Supreme Court.  What is really clear is how Congress was designed to be counter-majoritarian and it had become more so over time.
   
But when Congress is faulted but not reflecting public opinion or what the majority of people want in the United States, the answer is that as an institution it is not a national legislature.  The House represents 435 separate localities across the country, the Senate 50.  Congress is not reflective of national opinion because it is basically a parochial body. If this parochialism is not counter-majoritarianism, it is at least indifferent to national majority preferences.  The best sign of that in 2012 1.4 million more votes were cast for Democratic House candidates than Republican candidates.  Majority rule did not prevail.

But there are many other ways that Congress is counter-majoritarian.  The Senate filibuster allows 41 senators representing as few as 15% of the population to prevent legislation or nominations from being considered.  Individual senators can place holds on some legislation or “blue slip” judicial nominations in their home state.  In the House a single committee can block the entire body form considering legislation, and it is rare that a discharge petition is successful to force bills from committee to the floor.  Partisanship, polarization, and the pull of special interests have only exacerbated these counter-majoritarian tendencies.

Counter-majoritarian is good when it comes to protecting rights.  But the counter-majoritarianism in Congress goes beyond that. It is preventing the federal government from getting any work down, undermining the very functioning of our democracy.  Barely three months into President Obama second term he already seems like a lame duck, and it appears that time is simply being marked until the 2014 elections.  In the meantime, gun and other legislation languishes and this president, like his predecessors, is increasingly turning to executive orders to bypass Congress.  In the same way that the Supreme Court should not make policy, presidents should not be able to self-legislate.

Congress has become an anti-democratic institution incapable of functioning expect in rare circumstances.  It now stands as an impediment to progress and change.  Its anti-majoritarianism has cost it prestige, power, and legitimacy.  It is no wonder that the approval rating for cockroaches is higher than that for Congress.