In this issue:

A most "radical" proposal comes to Tennessee.
The Posture.
The Premise.
More than meets the eye?
What's the big deal?
Electoral College is undemocratic.
What were our Founders thinking?
President or King? More power or less power?
Have the principles underlying the Electoral College changed?
The Power of Power.
Practical problems.
Treacherous Ground!

A most "radical" proposal comes to Tennessee.
Mr. President, I recapitulate, to state my judgment -- and it can only be mine -- that the proposal before us, in the guise of perfecting an alleged weakness in the Constitution, proposes the most radical transformation in our constitutional system that has ever been considered.   Sen. Patrick Monyihan (D-NY) Speech before the U.S. Senate June 27, 1979, regarding (changing the way we select a president? Or proposing the popular election of the President)

And now that "most radical" proposal (or a variation of it) comes before our state legislature. 
And what could this most "radical transformation" in our system of government be which has not even registered a blip on the radar in the mainstream media of our state?  It is nothing less than the national popular election of the President of the United States.  It is a pretty big deal, I'd say!

Two bills are now pending before the state legislature (SB811(Crutchfield)/HB841(Favors) and SB159(Jackson)/HB246(Shepard) that would change the way in which the Tennessee "electors" are chosen (members of the Electoral College)  to vote for the President. Currently, in our state, the electors are determined by the party whose Presidential candidate receives the largest percentage of Tennessee's vote.  Historically, with extremely rare exception, they all vote for their party's winning candidate.

These bills would change that.  Instead of the electors representing and voting the will of the majority of Tennesseans, they would vote for that Presidential candidate who got the most votes on a national basis. The presidential preference votes of Tennesseans would become subservient to those of the rest of the nation.

It is curious that while other states are attempting the increase their influence in Presidential politics by jockeying for earlier and earlier primaries, in Tennessee, at least a few lawmakers, are actually attempting to decrease the impact of votes in Tennessee. Effectively, this legislation would make it less likely that Tennessee would ever become a so-called battleground state that in recent presidential elections has brought the contenders to our door steps to pay tribute to issues important to our citizens.

The Posture.
Next Tuesday, March 6th, in the House Elections Subcommittee, HB 841 is scheduled for a hearing.  Yesterday, however, the bill was scheduled for its first hearing, but was "rolled" ("legislatese" for  moved to another date on the calendar ).   While we hope this action is a signal that there is not enough support for the bill, it is still worthy of reflection and understanding because  the issue will not go away as our culture becomes more populist and democratic.

The Premise.
The premise for the bill is, from what I can tell, that the Electoral College is antiquated; the President "represents" all of us and the majority of us should control.

More than meets the eye?
Before we get to the merits of the idea though, let's consider what may be behind this bill.  It is always a tricky thing to try to guess a person's motivation for filing a bill, but there could be some considerations beyond mere policy.  For example, in Tennessee the argument that the President should be whoever gets the majority of votes across the nation may appeal to some because, if that had been the law in 2000, our home state man, Al Gore, would have been President instead of President Bush.

It is true that Al Gore got a majority of the votes casts.  But that is not to say that he was the person that a majority of Americans would have chosen had they bothered to vote (I know we only count votes).  For example, if the vote of a county is deemed to proportionately reflect the preference of the entire county, then President Bush was the most popular candidate.  Bush won counties with a total population of 143 million compared to Gore's count of 127 million people.  Determining what the majority of this country thinks is a tricky thing and it changes constantly.
And maybe it's not just coincidence that the bill has been filed since Senator Hillary Clinton may be the Democratic Presidential nominee.  Perhaps there is concern that she will fare like Gore – win the big urban centers but lose in too many states.

What's the big deal?
Majority rule is the governing principle in the United States, isn't it?  So, how is this a "radical" transformation, as Moynihan put it?" 

Electoral College is undemocratic.
To understand what is at stake one must appreciate the often misunderstood Electoral College.  Under the constitution, the President is not elected by popular vote.  Rather, the President is elected by the majority vote of the members of the Electoral College.  Each state sends "delegates" to the College who then actually elect the President.  Each state decides the basis upon which those electors are chosen.  In theory, one candidate could get none of the popular vote and still be President based on the vote of the Electoral College.
On its face, a process that would allow this result certainly sounds like an outrage.  It sounds unfair to voters. It violates our sense of democratic process and majority rule.  But before we uncritically embrace new political methodologies that our Founders surely could have bequeathed us, it would serve us well to ask what our Founders were thinking.  And whatever it was, we should then ask if it is still relevant.  If so, then perhaps change is not good.

What were our Founders thinking?
To appreciate how "majority rule" could be such a radical departure from our current Constitutional scheme of government, it should be kept in mind that the framers of the Constitution understood from history how democracy rapidly degenerates into mob rule and ultimately into tyranny. So, they created a republican form of government in which the rule of the majority of people in the country would not be determinative of anything.

For example, it should be kept in mind that our constitution never did anticipate any direct national elections.  In fact, most citizens probably do not realize that for over 100 years only the U.S. House was elected by direct vote of the people.  No other office in the federal government was settled simply by vote of the people.  US Senators were elected by the state legislatures.  And, of course, federal jurists are not elected at all.

Further, as regards the one office on which all U.S. Citizens vote, the president, it should be appreciated that the Framers intended that the presidency be a subordinate office, important but subordinate.  The President was to be an executive, tasked to carry out limited and well-defined duties, rather than a policy maker or a ruler of a national political system.  It was something about tyrannical kings and monarchs I seem to recall. 

President or King? More power or less power?
Clearly, the President has become rather powerful in our modern culture, could we say, more "kingly?"  Do we not already look as much, if not more, to the president to propose a national policy agenda than we do to Congress?  And I've yet to hear anyone say that a national election by the majority would not make the president even more powerful.  It is sort of ironic that the party of those sponsoring the bill is the one currently trying to limit the power of the president and assert more legislative prerogative when it comes to the Iraq war.  Perhaps the power of the president should be limited.  Whether it should or should not be is not the point.  Rather, it is, "Which way do we want it?"

Have the principles underlying the Electoral College changed?
So what was the principle upon which our Founders set up this "indirect" government and Electoral College?
As James Madison observed in The Federalist, No. 10, many issues of grave consequence "are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority."

No doubt my legislative colleagues who will support this bill have experienced and even lamented this phenomenon – the majority, in their opinion, killing what they believed to be a good and necessary thing either because they did not understand it or were being manipulated by interested parties. 

For example, I seem to recall on the state level the response of the people to the proposal of a past Governor or two to enact an income tax.  No doubt the Governors thought it was needful. No doubt a majority of our legislative leadership the last time thought it was needful.  And I would bet that many legislators who supported those proposals believed the majority was uninformed about the issues involved and were misled by demagogues who claimed to have their best interests in mind. 
Misleading is such harsh sounding term so now days we just say we're taking truth for a "spin."   Either way, the result is the same.

So, in response to this latest proposal to effectively dismantle the Electoral College, let us not be fooled into believing that at least this one reason for being wary of a direct, majority election at the national level has become antiquated.  Our passions may  change on issues from time to time, but human nature, on which the Electoral College is grounded, has not changed.  And, that brings us to the next consideration – has human nature vested with power changed? 

The Power of Power.
Our founders were no utopian idealists who believed in the perfectibility of man.  Rather they embraced the view of Lord Acton, proved over and over in the annuals of history, that "power corrupts and absolute power corrupts absolutely."
Whether it was unchecked power in the hands of one (monarchy), the several (oligarchy) or the many (democracy), they believed absolute power would corrupt. Further, they appreciated that totalitarian measures are not made more palatable or right because the rulers of a majoritarian system say they are acting in the "name of the people."

The Founders' Solution.
So, based on this understanding of human nature and how it responds to power, our "[f]ounders devised our system with the idea of a network of concurrent majorities which would be required to exercise power" which Senator Moynihan explained and pointed out as follows:

[C]oncurrent majorities... [are] to be found everywhere. The concurrent majority is required between the House of Representatives, based upon the direct election of the people, and a majority in the U.S. Senate, Members of which at that time were indirectly elected through the State legislatures and to this day represents the States and the people of the several States, regardless of their actual numbers. It is a majority of the States which counts in this body, not the majority of the population, per se.

Concurrent majorities are also required between sufficient majorities in both Houses of Congress and the Presidency to enact a law ... The power subsequently evolved, but clearly anticipated by the framers -- and I think this is settled -- that the Supreme Court could review the acts of the Congress and the President in their concurrent majorities, and the majority of the court could judge upon constitutionality.

This is a pervasive and understood principle of the Constitution thought to be -- and who would argue that history has not supported that expectation -- learned from history. And of all these majorities, none was more subtle or more central to their thinking than the majorities required to elect a President.

Again there would be two majorities, not in any rigid, absolute sense but in the sense that a clear preponderance of choice would emerge. The President would be elected by a majority of the popular vote and by a majority of the States. That has been our principle ever since. It is the principle enshrined in the electoral college ....(emphasis added)

And thus it was that the venerable Senator said, and I concur, "The fundamental thrust of this measure, however unintended -- nonetheless it seems to be ineluctably clear -- would be to abolish that principle of concurrent majority."

Practical problems.
If we wish to do away with the Electoral College in favor of a popular vote, we will also need to revise the U.S. Constitution in several other areas as well:

• making the selection of the president require a mere plurality instead of a firm majority of popular votes; or
• arranging for an electoral run-off between the two finalists after the general election; or
• revising the current constitutional provisions for a vote in the House, which requires a one-state, one-vote format, thereby giving Wyoming equal status with California, hardly the democratic result desired. 

Like most things in politics, it's never that simple.

Treacherous Ground!
Fisher Ames, a congressman of America's founding era, warned that "Every step ... toward a more complete, unmixed democracy is an advance towards destruction; it is treading where the ground is treacherous and excavated for an explosion. Liberty has never yet lasted long in a democracy; nor has it ever ended in anything better than despotism." 
The ultimate question we must answer seems to be this:  If the Electoral College was designed to deal with human nature vested with power, do we believe human nature has changed?  I don't believe it has.