The Accidental Genius of the Electoral College
Through the electoral college, Donald Trump will win the presidency even though Hillary Clinton won the popular vote. In response, many people have called to abolish the electoral college and have the presidency decided by a popular vote, including several hundred thousand MoveOn.org petitioners.
In contrast, I support the electoral college. Though I would find unobjectionable changes in the way the electoral college is calculated, I generally approve of the electoral college because it is one of the Constitution’s accidentally great procedural features for deterring the concentration of political power and the resulting abuses of such concentration.
As described below, in addition to the electoral college, the Constitution’s voting system does an unexpectedly good job of deterring the concentration of political power.
The Accidental Two-Party System
Let’s start with the what makes the Constitution’s voting rules accidently great.
At the time of the Constitution’s ratification in the late 1700s, its proponents expected federal power to be restrained by having a wide swath of different Americans in a large republic form many factions. These diverse factions would restrain federal action by hindering consensus. In James Madison’s words in Federalist #10:
“The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.”
Thus, according to Madison, having a lot of people with diverse interests restrains federal power and protects liberty by deterring the formation of oppressive majorities.
Since America has consistently had two major political parties instead of dozens of factions, Madison was, in a word, wrong. He overlooked the significance of voting rules.
When designing the Constitution, its drafters spent considerable time considering who voted when. The Constitution makes the House popularly elected by the people, the Senate appointed by the states, the President indirectly elected through the electoral college, and the judiciary nominated by the President and appointed by the Senate. Due to a skepticism of majorities, the Constitution empowers different people to choose different components of the federal government to protect against majoritarian dangers. The question of who should decide predominates.
Yet, the drafters largely overlooked how those people should be measured. In his significant (but dull) book Social Choice and Individual Values, Kenneth Arrow earned himself a Nobel Prize in economics by showing that individuals with rational preferences among multiple choices (i.e., for three choices A, B, and C, individuals who can rationally form a preference of A > B > C) will when aggregated, such as through voting, almost necessarily create collectively irrational social preferences (i.e. an outcome in which, collectively, society decides that choice A > B > C > A > B > C . . .).
Arrow’s Impossibility Theorem shows that how collective decisions are measured matters as much or more than who should be included in the group deciding.
In other words, the “will of the people” does not exist independently of the voting rules. Voting rules matter because the measure of “the will of the people” determines collective decisions.
To have a Madisonian system with many factions that deter majorities, states would need to use a system of proportional representation in voting. Under such a rule, a party with about 10% support would receive around 10% of the seats in Congress, and Congress would need to form coalitions with many factions to pass legislation—just as Madison wanted.
Currently, due to proportional representation, Spain has not had a government for almost a year because of the inability to form a coalition. Setting a world record, Belgium with its proportional representation voting system did not have an elected government for 589 days. Thus, European countries with proportional representation voting systems show how such voting rules can cause Madisonian inhibitions of government. As Madison suggests, a larger, more diverse country with a proportional representation voting system would likely have such restrains more frequently.
Third party candidates can be “spoiler” candidates because of states’ first-past-the-post voting rules, leading this voting system to create and reinforce two-party systems.Throughout America, with the recent exception of Maine which just adopted ranked-choice voting, voters elect the Congressperson with the most votes—a first-past-the-post voting system.
According to Duverger’s law, basically political science’s only “law”, first-past-the-post voting rules create two party systems because voters who diverge from established parties to vote for more ideologically favorable third parties can cause the election of the established party that they least prefer. So, if a voter votes for Ralph Nader, George Bush may win the election—even though the voter prefers Al Gore to Ralph Nader. Third party candidates can be “spoiler” candidates because of states’ first-past-the-post voting rules, leading this voting system to create and reinforce two-party systems.
Having underappreciated the significance of voting rules, Madison expected many factions and did not intentionally design the Constitution to restrain the unanticipated two-party system.
Drunk without Power
A two-party system poses the danger of one party taking exclusive control and exerting its unrestrained will on the population. Though not preventing this common 19th century occurrence, the Constitution’s voting procedures accidentally mitigate this danger through staggered elections.
Under the Constitution, the President is elected every four years, the House every two years, and one-third of the Senate every two years. So, to control the federal government, one of the two parties probably has to be popular without interruption for at least four years—at least two election cycles—across both the population and individual states.
Even in a presidential year, a popular party that seized the House and Presidency would likely not secure the Senate because only one-third of it gets elected at a time. With the schizophrenia of American voters, the federal government now tends to be split between two parties and, when controlled by one party, not remain in its control too long. Since new legislation requires the approval of the House, Senate, and Presidency, a different party only has to hold one of these entities to create gridlock and restrain federal power.
Let me reemphasize the accident. Why is the House elected every two years? Among the rationales, during the Constitution’s ratification, its drafters feared a standing army. Thus, in Article I Section 8 of the Constitution, Congress received the qualified power “To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years”. By setting a two-year term limit to match the House’s term, the Constitution empowers the American people to defund and end dangerous uses of the army or ongoing wars. Voters only have to elect anti-war politicians in one branch of the government to restrain the army through the House’s power of the purse.
In American history, this neat idea has never been used to restrict the army in such a way. In part, this constitutional protection has been overlooked because a standing army is mostly a post-1945 phenomenon and, since 1945, Congress has largely ceded its authority over the army to the President. Though the House could defund the army without the President or Senate through its control over the army’s purse, this intentional attempt to restrain federal power has, at least so far, not notably done so.
Though not fulfilling this intentional role, having House elections every two years has unintentionally restrained the federal government within a two-party system through gridlock. Every two years, voters can deprive any political party with concentrated power of its power by switching the House to a different party. This disperses political power because divided government empowers one party to block another party’s agenda, making the House’s two year terms a tool for dispersing political power.
Most recently, this happened in 2010 with Republicans, jettisoned by Tea Party candidates, snatching the House but neither the Senate, in which only 1/3 was elected, nor the President, which had no election. Thus, House elections deprived Democrats of their federal power without concentrating power among Republicans, largely disabling both Democrats and Republicans for the next six years. Some commentators named the resulting gridlocked Congresses the “Worst Congress Ever” due to the inaction–-apparently forgetting that Congress has passed many, terrible, horrible, no good, very bad laws in American history, including in recent memory, when the political system has not restrained the federal government in such a way.
Similarly, with Republicans now poised to hold the House, Senate, and Presidency, the House’s two year terms give Democrats a quick opportunity to disperse Republican power in 2018.
Overall, the staggering of elections in a two-party system both deters the concentration of political power and facilitates the dispersion of concentrated political power, accidentally restraining federal power in a two-party system in a similar way to Madisonian factions.
The Supreme Court’s Lifetime Appointments
In addition to election voting rules, the process for judicial appointments also partially defends against the two-party system.
The Constitution sought to disperse political power by having the President nominate and the Senate confirm federal judges for lifetime appointments. When different parties control the Presidency and Senate, this division of