Restore the Federal Republic

I support the Electoral College—not as an inconvenient relic that must be tolerated, but as a necessary part of our federal system.

However, I do not believe the Electoral College presently functions as it was intended. Today, the Electors are generally treated as little more than ceremonial deliverymen for the statewide popular vote. In most States, they are legally required to vote for a particular candidate and may face removal, penalties or other consequences if they exercise independent judgment.

If that is all Electors are permitted to do, there is little reason to have Electors at all. A computer could perform the same arithmetic.

I would therefore support a Constitutional Amendment eliminating the popular election of the President, prohibiting States from binding their Electors and protecting Electors from punishment or reprisal for the votes they cast.

I would also support repeal of the Seventeenth Amendment, returning the selection of United States Senators to the State legislatures.

These changes would not deprive the People of representation. They would restore the different forms of representation built into our federal republic.

The House Represents the People

The People are represented in Congress by the House of Representatives.

Representatives are elected directly by the voters of congressional districts. Their terms are short so that they remain responsive to public opinion. The House was intended to be the part of the federal government closest to the People.

That remains entirely appropriate.

But the federal government was never designed so that every office would represent the People in precisely the same way. If every branch represents the same constituency, receives its authority through the same mechanism and responds to the same political pressures, then the apparent separation between those branches becomes much less meaningful.

Different institutions were intended to represent different interests.

The Senate Represents the States

The United States is not merely one large nation divided into convenient administrative districts. It is a union of sovereign States, each possessing its own government, laws and constitutional authority.

Those States were originally represented in Congress by the Senate.

Before ratification of the Seventeenth Amendment in 1913, Senators were selected by their State legislatures. This gave the State governments a direct institutional voice within the federal government. Senators were not simply a second set of nationally elected legislators serving longer terms. They were the States’ representatives in Washington.

The Seventeenth Amendment changed that. Senators are now elected directly by the voters, just as Representatives are. The constituencies differ in size and the terms differ in length, but both chambers now derive their authority from essentially the same source.

That destroyed an important part of the constitutional balance.

When Congress considers legislation that expands federal authority at the expense of the States, who within Congress formally represents the State governments? The answer is: no one.

Repealing the Seventeenth Amendment would restore the Senate’s original purpose. The House would continue to represent the People, while the Senate would once again represent the States as political entities.

That is not less representative government. It is representation of both essential components of the federal republic.

The President Represents the United States

The President occupies a different position.

The President is not supposed to be the personal representative of a national majority. He is the chief executive of the United States and represents the United States in its dealings with other nations.

The office is federal—not national in the purely majoritarian sense.

For that reason, the President should be chosen through the States, acting through the Electoral College. The People already possess their direct representation in the House. The States possess—or should possess—their representation in the Senate. The President should derive his authority from the constitutional union of those States.

The modern presidential campaign, however, is conducted as though the United States holds one enormous national election. News organizations total the popular vote across all fifty States, even though that total has no constitutional significance. Candidates claim a “mandate” based upon it. Critics describe a President who wins the Electoral College but not the national popular vote as somehow illegitimate.

But there is no national popular election for President. There are separate elections conducted under the laws of the individual States. Adding those results together afterward may be interesting, but it does not create a constitutional election that never occurred.

Rather than continuing this pretense, I would eliminate the presidential popular vote altogether.

Electors Must Be Free to Deliberate

The Electoral College should also be permitted to function as an actual deliberative body.

An Elector should not be a rubber stamp. If an Elector is legally prohibited from exercising judgment, then the title is meaningless. He is not an Elector at all; he is merely a mechanism through which someone else’s vote is transmitted.

The States should select qualified Electors, but once selected, those Electors must be free to evaluate the candidates and cast their votes according to their own judgment. No State should be permitted to dictate their votes, remove them for voting “incorrectly,” impose fines upon them or otherwise punish them.

This independence would provide one final constitutional safeguard between the presidency and a momentary wave of popular passion. It would also allow Electors to respond to extraordinary circumstances arising after their selection but before their votes are cast—such as death, incapacity, criminal revelation or some other event demonstrating that a candidate is manifestly unfit for office.

Of course, independent Electors could exercise poor judgment. So can voters, legislators, judges and Presidents. No constitutional arrangement can eliminate human error.

The purpose of the Constitution is not to guarantee that every decision will be correct. Its purpose is to divide authority, balance competing interests and prevent any single political force from controlling the entire system without restraint.

A Federal Republic, Not a National Plebiscite

The modern impulse is to reduce every question to direct majority rule. Whoever receives the most votes should control everything, and any institution standing in the way is denounced as “undemocratic.”

But the United States was not established as an unrestricted democracy. It was established as a constitutional federal republic.

The distinction matters.

The People, the States and the United States are related, but they are not interchangeable. Each has a legitimate place within the constitutional structure:

• The House of Representatives represents the People.

• The Senate represents the States.

• The President represents the United States and is chosen through the States by the Electoral College.

That is an orderly division of political authority. It prevents the federal government from becoming one undifferentiated mass of officials all elected through essentially the same popular process and all claiming the same mandate.

I do not want to abolish the Electoral College. I want to restore it.

I do not want to deprive the People of their representation. I want the People, the States and the Union itself each to receive the representation appropriate to them.

Such changes should be made openly and lawfully through Constitutional Amendments. The Constitution provides a mechanism for correcting its structure, including the repeal of earlier amendments. We used that mechanism to repeal Prohibition. We can use it to reconsider the Seventeenth Amendment and to restore genuine independence to the Electoral College.

The answer to perceived defects in our constitutional republic is not to discard its federal character in favor of national majority rule.

The answer is to restore the balance that made it a federal republic in the first place.