Playing Constitutional Hardball with the Electoral College

Republicans are playing Constitutional hardball again. It’s a dangerous game.

The GOP may attempt to rig the Electoral College by changing the electoral vote allocation in GOP-controlled states which voted for Barack Obama. The idea would be to shift from the normal winner-take-all plan to something that would split the votes in those states. Ideally, from the Republican point of view, every Republican state would be winner-take-all while all Democratic states would be split more or less evenly, making it almost impossible for a Democrat to win the White House. All of that, as obviously undemocratic as it is, would be perfectly Constitutional; the Constitution leaves every state in charge of how to choose its electors.

The idea should be not be seen as a stand-alone. Instead, it’s best thought of as one of a set of schemes Republicans have advanced over the last 20 years. It includes the establishment of the 60-vote Senate; mid-decade redistricting in Texas after Republicans took control of the legislature there; the “new nullification” of Republicans using the filibuster to prevent anyone at all from getting confirmed for some executive branch posts in an effort to prevent duly passed laws from getting carried out; recall elections to remove officials without any particular cause; and the impeachment of Bill Clinton for actions which had not traditionally been thought to fall into the category of “high crimes and misdemeanors.”

Oh, and one more, one that is closely tied to the latest plan: the threat, during the 2000 presidential recount fight, that the Florida legislature would simply toss the entire election out and pick the electors themselves.

What all these efforts have in common is that they are all perfectly legal,  and yet they all violate the norms of how American politics had been practiced for decades or even for centuries. All of them exploit some loophole in the law or the Constitution to give Republicans some immediate advantage in the basic ground rules of how political issues are contested.

The legal analysis Mark Tushnet of Harvard Law School calls such efforts “Constitutional Hardball,” and I think that’s a good name for them.

The question is how corrosive they are, and I think the answer is: very.

Much of the American political system actually runs on norms, not rules. It may seem strange to people—especially after 20 years of Republican-led Constitutional hardball—but that arrangement actually can work very nicely. Both parties, and beyond them most other politically active citizens, simply work within the de facto rules of the game and work for the best results under those rules.

The problem is that once a party in such a system starts looking for areas to exploit in the gap between written law and the way the law is practiced, they may find all sorts of small, temporary edges. And there’s really no particular reason for them to stop once it starts. In each case, the case for moving ahead is the same: why not use the rules to your advantage? For the other party, the incentive to fight fire with fire is overwhelming. Not only is sticking to outdated norms while your opponents don’t a sure recipe for losing, but in fact the very norm of following norms rapidly disappears and should be replaced by loophole-exploiting by everyone.

There’s a classic collective action problem here: everyone is far better off under a system in which the basic rules of the game are agreed to and respected than under a system in which the rules are constantly altered, but at any particular point in time anyone who figures out a gap to take advantage of can be better off.

More seriously, democracy itself is threatened by Constitutional hardball. Rapid rules changes are bad for democracy. Why? Because coalition building and complex bargaining—both of which are absolutely essential for large-policy democracy—only do that work when they are necessary. When the rules are up for grabs, those processes can become unnecessary—or at least it may appear that party hands can shortcut the process by bending the rules in favor of their own faction. The classic case of this was the reforms of the Democratic presidential nomination process after 1968, which produced factional nominees in 1972 and 1976 before everyone figured out the rules and candidates were once again forced to form coalitions in order to win.

Of course, sometimes rules change is necessary. Surely, for example, switching to direct election of senators or to an open presidential nomination process or to a system which destroyed the domination of the House of Representatives by a handful of committee chairs who happened to live in safe districts were all excellent ideas, even if they created short-term problems. The thing about Constitutional hardball, however, is that rules change happens not in order to find a better system—not even a little bit—but purely to find and exploit temporary advantages, no matter what happens after that.

Fortunately, it’s unlikely that Republicans will actually go ahead with their Electoral College rigging plan, because the incentives for state legislators who would have to vote for the plan most likely run counter to those of the national party. Even the suggestion of such Electoral College-tampering, however, further undermines the “norm of following norms” that helps keep a democracy polity stable. And unfortunately, no solution appears to be available.

The best hope is that the present generation of Republicans will maybe be replaced by a group who have a bit more restraint; after all, they do call themselves conservatives. But that’s probably just wishful thinking; the most likely outcome is a constant back-and-forth exploitation of the rules, with winners codifying their current positions in ever-more-detailed rules of the game that may or may not make any sense whatsoever beyond the short-term advantage for which they were adopted. Now, of course, plenty of our most cherished institutional arrangements (and also, you know, the United States Senate) have been influenced, at least in part, by the self-interest of the time. That’s politics. But Constitutional hardball is a step beyond that, and it’s deeply threatening to democracy.

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