America’s Legalism has Become Nihilism, or Why the Electoral College Can’t Save Us

Much has been made over the past month of the Electoral College. Its members, argues basically every Constitutional scholar, are free to choose whomsoever they wish for the Presidency and Vice-Presidency, subject only to a few requirements outlined in the Constitution. They point to the literal words of the Constitution, which, indeed, place no restrictions on the Electors’ choices. They also point to the words of Alexander Hamilton, who states in Federalist 68 that the Electoral College “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,” which they certainly couldn’t do if they had no choice in their ballots.

Since approximately 1836, the Electoral College has consisted of essentially anonymous figures performing a ceremonial duty. Like the Queen of England’s prerogative to send troops to war and dismiss Parliament, the power is to be invoked precisely never. In desperation to avoid the installation of Donald Trump, a wholly unqualified man whose mere presence in the Oval Office will ruin America’s credibility on the world stage, luminaries like Larry Lessig push for the College’s members to flout extraordinarily well-established tradition, a development that is enormously dangerous.

Norms keep the wheels on the bus

Written rules can never stand on their own. Rather they are necessarily buttressed by a common understanding of the “spirit of the law,” which fills in the interstices between the situations described by the literal words on paper and the small perturbations of those idealized scenarios that comprise reality. Every parent is familiar with these deviations, and every parent is familiar with what happens when one party is bent on finding the loopholes in the rules. Upon confronting little Susie about the fact that her toys are all over the couch, Susie rejoinds, “You said to pick things up off the floor, but you didn’t say where to put them!”

The American system, with the checks and balances that James Madison devised, is particularly prone to this sort of childish legalistic nihilism, though it wraps it in fancier words like “prosecutorial discretion,” “advice and consent,” and “briefing schedules.” When the President doesn’t like a law that Congress passes, he can simply not enforce it. When the Senate doesn’t want the President to fill a particular position, it can simply ignore the President’s appointments for as long as it wants. When the courts want to kill some executive program it can issue a preliminary injunction and wait for the next President to arrive.

Francis Fukuyama has coined the term vetocracy to describe the American system, where there are so many players who can stop any government action that nothing can get done. But I think he’s been too kind in this characterization, as vetoes typically require forthrightly and explicitly stating opposition. In today’s United States, the powerful don’t even need to state their positions. Our petulant refusal acknowledge the inadequacy of the letter of the law in executing policy leads to Congressional Republicans voting over 60 times to repeal Obamacare, an act that, without an accompanying replacement plan, would have thrown the healthcare market into chaos. But since they knew their repeals would be vetoed or otherwise stopped, they didn’t have to worry about pesky things like understanding the consequences of policy. In this worldview, votes are inconsequential, a position that is literally the antithesis of democracy. But hey, Obamacare is bad, being angry is good, and Republicans can do it, so of course they will do it.

Even when Congress seemingly takes a firm position they simply claim, “It is not my job to be informed.” The Justice Against Sponsors of Terrorism Act is a law that allows private citizens to sue countries in civil court for damages relating to the 9/11 Terrorist Attacks. President Obama vetoed the act on the advice of much of the national security and diplomatic establishment, and sent Congress a letter explaining why along with his veto. But Congress ignored his advice, and overrode the veto anyway. Hours after voting to override Obama’s veto, 16 Democrats and 12 Republicans seemingly woke from their nihilistic votes-don’t-matter dreamscape and penned a letter worrying about the now-act’s “unintended consequences.” Mitch McConnell, leader of the Senate, actually said, “Because everyone was aware who the potential beneficiaries were, but nobody focused on the potential downside in terms of our international relationships… I just think it was a ball dropped.”

If we’re breaking norms, we can justify just about anything

Indeed, there is no constitutional requirement that congressmen, or presidents, or judges be informed about anything. There is no need to read legislation or ask anyone about its implications, not least of all the President himself when he vetoes the bill. There is no requirement that legislation be passed in the national interest. There is no requirement that the President release his tax returns. There is no requirement that the President not have conflicts of interest. There is no requirement that the President get permission from anyone in particular before launching a military assault with drones, or jets, or people, or, even, nuclear warheads. There is no requirement that Justices of the Supreme Court not declare parts of the Constitution “anachronisms” and “read them out of the Constitution.” There’s no requirement that electors vote for the candidate specified by the well-understood rules. So why should they?

As long as we’re going down the rabbit hole of legalistic nihilism, we can imagine various actors pulling all sorts of (technically legal!) shenanigans. Some people have called for the Senate, in the few moments between the start of the 115th Congress and the swearing in of the 34 newly elected Senators, when there will be 36 Democratic and 30 Republican Senators, to consent to President Obama’s appointment of Merrick Garland to the Supreme Court. But why stop at retribution for the Republicans’ obvious contempt for norms? The Constitution says that the Senate is “the judge of the elections, returns and qualifications of its own members,” so why not just say that all the newly elected Republicans are not qualified to be Senators and start subpoenaing soon-to-be President Trump?

Why even stop there? A couple blue states could tip the House to the Democrats by changing their rules for electing Representatives to be like the rules of the Electoral College: the majority party statewide gets to appoint Representatives. The recent Shelby County decision overriding long-standing jurisprudence (a fancy word for norms) emphasized that Congress only has the power to regulate things like election districts because of the Equal Protection Clause and the amendments guaranteeing the franchise to various groups. The Electoral College obviously doesn’t violate these premises (or else, hey!, let’s Bush v. Gore Clinton into office), so why not do it for Congress too?

The National Popular Vote Interstate Compact is yet another example breaking constitutional norms

But we don’t even have to be so obtuse. The Constitution explicitly grants States the ability to choose Presidential Electors by any means they desire. By statute, they could always appoint Democrats or always appoint Republicans. They could always send the oldest people residing in the State. They could draw lots. They could grant the candidate who got closest to 43.7% of the vote, without going over, the right to choose the electors. They could declare that Vladimir Putin gets to choose the electors. All entirely legitimate according to the rules.

Out of this pretext comes the National Popular Vote Interstate Compact. Its signatory states agree to grant the winner of the national popular vote the right to appoint all the electors from their state, potentially completely ignoring the will of their people. The Compact comes into effect when states controlling at least 270 Electoral votes, enough to decide the election, have signed on.

I’m no fan of directly electing the President, but I do believe that if we’re electing the President it should be done by popular vote. Still, this scheme would allow just the most populous 11 states, which control 270 electoral votes, to radically alter the method of presidential elections without the consent of the other 39. Indeed, with this power those 11 states could ask the House of Representatives to choose their electors, essentially transforming the United States into a quasi-parliamentary democracy. Or they could let the popular vote winner in only those 11 states decide the election.

This sort of fundamental change to the system of government would usually require a constitutional amendment and hence the consent of 38 states, but, hey, the Constitution says we can do it, so let’s do it! Never mind that consensus on the legitimacy of the basic form of government is essential to its functioning.

What should we do?

Here we return to all the parents that ever were, teaching their kids the most fundamental lesson of morality: “Just because you can doesn’t mean you should.” Every rules-based system can be gamed, and it is only our recognition that norms as well as rules govern us that keeps the wheels on the bus.

This is why we should recoil when Donald Trump appoints three retired generals to cabinet-level positions, thus undermining the norm of civilian control of the government and military. This is why we should scream when Paul Ryan says that the President-elect can handle his conflicts of interest “however he wants.” This is why we should pause when “One Weird Trick” let’s us abolish the Electoral College or appoint Merrick Garland to the Supreme Court.

This is why we should be marching on Washington right now demanding that Paul Ryan and Mitch McConnell remember the most fundamental norm, that country comes before party, and start speaking up against our President-elect throwing American intelligence agencies under the bus, forty years of US-China policy to the wind on a whim, and the traditional reservedness of the President out the window.

This is why we should decry the actions of a party that has lost power according to the rules and then tries to change the rules as their final act of governance. Sore losers are annoying in sports, but after the game ends, there’s nothing left for them to gain. Sore losers in politics, a “game” that never ends, do not constitute a “widening partisan rift,” as the New York Times headline would have us believe, but a fundamental undermining of the faith in democracy that allows it to flourish.

Only norms stop large states from dictating to small states

Obama has the right to pardon everyone who has ever been convicted of a federal crime. He doesn’t and he won’t because pardons and commutations are given to fix injustices that have no other way of being fixed. It would completely undermine our perception of the rule of law to pardon so many people simultaneously.

The State of New York has the right to declare that polluting New York’s air is a crime. It could declare all the companies burning coal in Kentucky are in violation since the wind will carry their soot to the Long Island Sound. Since every major bank operates out of New York City, the State of New York would then have huge leverage over those coal companies. In particular, it could probably force them to adopt whatever Clean Power Plan it wanted. But New York doesn’t do this because we’ve resolved that the way to handle interstate disputes over wind-driven air pollution isn’t through the diktats of one state, but through technocratic and political consensus between many stakeholders at the Environmental Protection Agency.

The State of California, home of the nexus of the world’s information technology sector and an eighth of the US population, already recognizes its ability to make decisions on behalf of the rest of the United States. Laws like SOPIPA push strict regulations on what internet companies operating in California (i.e., all of them) can do online. Strict emissions standards mean that all Americans pay more for their cars because either GM has to design and produce two models, or it has to bring up all models to California’s standards. California is the biggest player in WECC, which makes sure electricity is reliable in the western half of North America. It can put as much pressure as it wants on them to move to renewables and everyone else will probably have to follow along. If California feels like the norms that allow the United States to actually function are breaking down, what’s to stop it from pushing its incredible market power further?

So to small state America I warn, New York and California technically already have all the power they need to dictate policy to you. It is only the respect for democratic norms which stops them from doing so.

If we wish to preserve our democracy, Congress is the only viable actor

The United States is an anomaly in history. It is a democracy. It is perhaps the first true global hegemon. It is a multiethnic and multicultural society that has even cast off slavery and witnessed the descendants of former chattel rise to the highest levels of government. It is a place where relatively few people go to bed hungry, where most people go to bed with a roof over their head, where everyone gets 13 years of free education. It is a place where people from around the world want to be, and it is a place where people from around the world believe they will be accepted. It is a place that all its citizens are proud to call home.

We must realize that pride is not just for the land or the songs or for the written words on a couple old pieces of parchment. That pride stems from the enormously hard work we and our forebears have done to make this society work. We work our jobs, we volunteer to improve our communities. We welcome folks who aren’t from here, and we listen to what they have to say. We go to war to protect our freedom. We’ve found a way, in this strange mishmash of people, to get along.

That’s not just a product of our rules, but a product of our norms. We cannot be suckered into some kind of nihilism where words are all that matters. We cannot say, “Hey, it doesn’t say I can’t!” We instead have to ask, “Should I?” Should Mitch McConnell have made his “top political priority over [2011–2012] to deny President Obama a second term?” Should Ted Cruz have shut down the government as an act of showmanship? Should the Freedom Caucus have literally threatened a global financial catastrophe, causing the United States to default on its debt obligations, to strip healthcare from 20 million people? Should President Obama have expanded the powers of the Presidency to the point where the President may, with essentially no oversight, spy on anyone, kill anyone without a trial, or ignore the unlawful activity of millions?

Our norms require that those in Congress have respect enough for our laws, most especially our Constitution and our constitutional norms, to defend them against all enemies, foreign and domestic. That respect means that those who swear to uphold the Constitution can’t hope that Christopher Suprun, random dude from Texas who happened to be named an Elector, saves the country for them. Indeed, if Mr. Suprun courageously does what elected officials will not, he does so by violating the most fundamental norm of democracy: elections have consequences.

If the legalistic nihilism of our feckless leaders takes us to the point where votes don’t matter, then what sort of government do we actually live in?