//  3/15/18  //  Commentary

Cross-posted on Dorf at Law

My "Hamilton Versus Trump" seminar is now firmly back in Hamilton territory. This week's reading included Federalist 68, in which Hamilton defends the Electoral College on the ground that its (small-r) republican mechanism rather than a (small-d) democratic process will generally lead to the election of statesmen rather than demagogues. The Electoral College mechanism, he writes:

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. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.


Is it fair to tax Publius with enabling Trump? In an obvious sense, yes. Trump frequently asserts that he easily could have won the national popular vote if he had campaigned for it, an assertion that is not backed by evidence and is in any event untestable. The best, though admittedly not entirely dispositive, evidence we have of who would have won a national popular election is the fact that Clinton won 3 million more votes than Trump. So we can say that there is at least a substantial likelihood that Trump would have lost a contest in which the winner of the national popular vote becomes president. Thanks a lot Publius.

To be fair, though, it's also worth noting that the Electoral College we have today functions quite differently from the Electoral College as the framers envisioned it. Federalist 68 assumes that electors will choose the president based on their own best judgment about who should be president, not based on instructions from the voters. They were all expected to be what we would now call "faithless electors."

These days, the primary function of the Electoral College is to give small states a modestly disproportionately large share in the presidential tally. The fact that nearly all states allocate their electoral votes on a winner-take-all basis also means that candidates focus on the relatively small number of medium-to-large "swing" states, but that's not a function of the Electoral College itself.

The Electoral College has never functioned in the way that Hamilton expected. The first two elections were won by Washington almost by acclamation. By the election of 1796, political parties had emerged to provide national unification and tickets (which were rationalized after the 12th Amendment fixed the problem that the 1800 election exposed), and national tickets meant that voters found themselves effectively voting for President and Vice President, even if they were technically voting for electors.

But even without an Electoral College doing the job of filtering the popular will, presidential elections worked more or less as Hamilton would have liked until fairly recently. The parties filled the gap, stepping in to perform the filtering role. Party leaders chose candidates themselves, with an emphasis on "ability and virtue." That's not to say that candidates were always ideal or that in the era of "smoke-filled rooms" there were no populist candidates. However, just as the Electoral College as Hamilton envisioned it would have performed a substantial process of filtering direct democracy, so the parties as they actually emerged performed that process in reality.

That changed in the 20th Century as primaries democratized candidate selection. By 1968 that led to polarization. Primary voters more strongly associate with a party's ideological core, and once realignment due to Nixon's southern strategy kicked in, that meant that Democratic candidates need to run left in the primaries and to the center in the general, while Republican candidates need to run right in the primaries and to the center in the general. The need to skew to the party's base in the primaries in turn led party leaders to worry that primaries would nominate candidates with less appeal to swing voters in the general, which in turn led to such institutions as super-delegates.

Hillary Clinton won substantially more primary and caucus votes than Bernie Sanders did in 2016 and thus would have won the nomination even if there were no superdelegates, but Sanders supporters were not wrong to complain that the institutional Democratic Party was favoring Clinton. Indeed, that's what it was set up to do--favor the more centrist candidate in the hope that she will be more appealing in the general.

Understandably, Democrats who skew to the left of the party's center don't like that the institutional party wants to nominate centrists with an eye on the general election. Thus, there's now an effort underway in the Democratic Party to reduce the "perceived influence" of superdelegates. Presumably, however, Sanders supporters want the Party to reduce the actual influence of superdelegates.

Would that be wise? The answer depends on whether attracting centrist voters does more good than the harm done by alienating base voters. That's a complex empirical question. It's also a normative question, but it's less of a normative question than one might think. Although superdelegates are easy to criticize as undemocratic within each party, they arguably make the electoral system as a whole more representative. To the extent that both parties use selection methods that favor centrists, one ends up with a president who is closer to the median voter than otherwise.

It's also not clear what lesson to draw from the election of 2016. Suppose you are a Democrat who thinks that Sanders would have beaten Trump. You still might think that mechanisms for modestly favoring the centrist candidates are a good idea in general if you think that Clinton lost to Trump for reasons other than her centrism. This is a plausible account of what happened in 2016. Clinton's relationship to her husband limited her ability to capitalize on the Access Hollywood material; presumably James Comey would not have made any damning-sounding announcements about Bernie Sanders; and Clinton's cozy relationship with Wall Street severely constrained her ability to attack Trump as a faux-populist. Those are all reasons to think that the institutional party made a mistake by backing Clinton in particular but that it might be sensible going forward to back centrists with less baggage than Clinton, at least modestly.

Meanwhile, on the Republican side, the party establishment tried but failed to block Trump. It's not too soon to say that was bad for the GOP. With a booming economy, one would expect the president to be substantially more popular than Trump is. If, as Democrats' over-performance in special elections in very red districts indicate, the country now swings Democratic, it will be largely because Trump is weighing down the GOP brand. (Note: In a perfect or even just barely rational world, GOP policies like taking away people's health insurance, deregulating polluters, and cutting taxes for the wealthy and corporations would weigh down the GOP brand, but we don't live in either of those worlds.)

Meanwhile, notice that the institutional GOP's efforts to block Trump from getting the nomination were not rooted in the logic of appeals to centrist voters. Although Trump has mostly favored traditional conservative policies, as a candidate he ran to the left of most of the field on some issues--especially trade. Based just on policy, the GOP probably should have embraced Trump as more electable than a generic Republican. The institutional Republican Party's opposition was rooted less in policy than in the correct Hamiltonian understanding that Trump's "talents for low intrigue and the little arts of popularity" made him grossly unfit for office on grounds of character.

Trump is thus strong evidence that the replacement of smoke-filled rooms with primaries in which mob sentiments can prevail has left political parties poorly positioned to substitute for the original purpose of the Electoral College. At least in this instance, the party system failed to filter out a clown/demagogue/would-be-tyrant.

Does that mean that we are doomed? Not necessarily. The core idea of Federalist 68 and those other numbers that strike small-r republican themes is the need for some parts of government to protect against the passion of the mob. If parties can no longer effectively serve that role, we do have two such institutions: the courts exercising judicial review to block tyranny of the majority; and the administrative agencies, staffed by experts chosen for their particular talents and their skill at administration rather than simply their appeal to the public.

Bottom Line: The Electoral College never performed the role Hamilton imagined; for a time political parties did; now much of that role has fallen to the courts and the "deep state." Seen this way, Trump's efforts to reshape the courts and to gut the agencies is as problematic as anything else he is doing.

Versus Trump: Legal Update + The GSA Travesty

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On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

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Jason Harrow

Gerstein Harrow LLP

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On this week's Versus Trump, Charlie and Jason discuss the (frivolous) legal challenges to come. They are then joined by Public Citizen's Matthew Seligman to learn what happened with all those last-minute ballots, and what might happen in ongoing litigation in the Supreme Court.

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP