Junior Ganymede
We endeavor to give satisfaction

Extended Rationale for Presidential Election Process, Federal Constitution v2.0 Draft Revision 2

January 13th, 2017 by Publius

The Committee is gratified by the response to Federal Constitution v2.0, Draft Revision 2. Public comments received to date have highlighted the need to publish a more extended rationale for Presidential Election Process v2.0 Draft 2.

The new process reflects a desire to elect the President through a true deliberative process that is representative of the body of citizens and independent of any other branch of government. The notion of modeling the new Electoral College on a grand jury gained almost immediate acceptance from the bulk of the Committee and discussion turned almost at once to the details of how to implement this basic scheme.

It is nonetheless worth some discussion of why the basic scheme struck so many of the Committee with the force of an epiphany.

One explanation is that other schemes for choosing a President have serious problems. The Committee recognized serious flaws with the current process, which amounts to election by plebiscite. The Electoral College is widely recognized as a fiction with only three significant departures from a true plebiscite: First, the apportionment of electors weighs the election in favor of rural states. Second, the power granted states to choose electors however they will has led in almost every case to a “winner take all” apportionment¬†within states that weighs the election in favor of dense urban areas. Third, the “winner takes all” aspect effectively shuts out third candidates and ensures that the winner will have at least a strong plurality behind him. Of these features, the first is desirable (because it recognizes regional peculiarities) and the third also (because it forces consensus.) The second is undesirable for the opposite reasons that the first is desirable.

Otherwise, the existing process has the strengths and flaws of plebiscite. Its strengths are that the election is representative of the body of citizens and independent of any other branch of government. The flaws, which are glaring, are that the process is in no meaningful sense deliberative and it is extraordinarily prone to capture by a demagogue. It can too easily devolve into the selection of an imperator by popular acclamation.

There was discussion on the Committee on whether to propose a parliamentary system, where the President is chosen by the legislature. This system is widely employed and has sometimes worked passably well. It also has the merit of being nearly universally accompanied by a mechanism, the vote of no confidence, for removing an executive at the pleasure of the legislature.  This shifts significant power from the executive to the legislature. The chief objection is based on historical experience: This system has a definite tendency towards instability, with the most notable example being France between the world wars. Britain has been more fortunate, but the Committee concluded that this was due to unique cultural circumstances, of which the chief were the unique popularity of the British monarch from the time of Victoria on down and the counterdemocratic character of the House of Lords. The Committee concluded that the United States was more likely to go the way of France than Britain, and no one wanted that.

Proposals to have the President elected by a blue ribbon commission failed to identify a process for selecting commissioners that would be representative of the citizens, independent of other branches of government, and immune to positive feedback. Likewise, a proposal to select the President at random from a pool of qualified candidates foundered on the question of how to select such candidates. The notion of selecting the President at random from the entire body of citizens was raised mostly as a counterhypothetical, illustrating the reality that the President must be an outstanding — not to say elite — figure.

However, the discussion of these proposals was not unfruitful, since it led to the suggestion that, if the President could not be chosen at random, and a blue ribbon committee would be unrepresentative and could not safely be chosen by any branch of government, then how about dropping the blue ribbon and choosing the electors at random? It was a small intellectual leap from there to choosing the electors randomly by state and district so as to preserve the geographical weighting.

Furthermore, there were advantages to the size of the Electoral College so selected. It is large enough to be a meaningful sample of the voting public, yet small enough for meaningful deliberation. There was some question about the latter characteristic, with a proposal mooted to scale down the number of electors, but this created the problem of how to aggregate districts. It was pointed out that this was not actually a problem, since random selection within a state would provide a plausible sample of its districts, but then a mathematician on the Committee* pointed out that a number of small states have a prime number of electors at present, it’s a different prime number in different states (three for Alaska, five for New Mexico, for example) and any scaling would inevitably change the representation and upset too many apple carts.

With the observation that Congress is a deliberative body of the same size as the proposed Electoral College, the issue was dropped.

The Committee then focused on the details of the Electoral College. It was agreed that the college should physically meet, so that genuine deliberation was possible. It was agreed that the electors should have ample time (approximately a month) to arrange their affairs before their first meeting, since they would mostly be ordinary citizens and the burden would be significantly greater than typical jury duty. Ample time would be allocated for their deliberations, but not more than a few months, and it could be much shorter if consensus was reached early.  Appropriate compensation would be given the electors. It was decided that determining this compensation would be left to Congress, which would have no particular incentive to keep it either stingy or lucrative, and that compensation would be awarded on a per diem basis. Some members of the Committee argued that service as an elector would be permanently disruptive to the lives of ordinary citizens, and they should therefore be granted a generous lifetime pension. This was not disputed by the rest of the Committee, but the Committee concluded that a per diem compensation could reasonably be interpreted to include a pension based on days of service and that this could be left to Congress, which would have the power to make adjustments based on experience. The objection that the electors would then have an incentive to prolong their proceedings was met with the observation that this was not necessarily a bad thing, so long as there was a hard final time limit; it would create a disincentive for some faction to force through a majority vote for a popular candidate the moment the electors met.

Various proposals were mooted for governing the proceedings of the College. A proposal to allow the College to elect its own President and govern its own procedures was rejected on the grounds that these ordinary citizens, meeting for a few months in what was almost certainly a once-in-several-lifetimes experience, would not be prepared to do this well. The counterproposal, which was to put an experienced judge in charge of the proceedings and run them like a grand jury, led at once to a consensus that the Chief Justice should govern the proceedings of the College. A proposal to give this duty to the Chief Justice and the two most senior associate Justices was rejected on the grounds that, while judicial panels were splendid for settling points of law, they were unsuited for fact finding proceedings.

The analogy to a grand jury immediately raised the possibility of giving the Electoral College subpoena powers so that it could subpoena financial statements, interview knowledgeable witnesses as well as potential candidates, and so on. It was pointed out that this required that the proceedings be kept strictly secret, since such statements and witnesses would be highly sensitive. Since grand juries operate under such rules, there is ample precedent. “Not for a jury this large” was an objection we confess we are not confident we have entirely answered.

The proposal to make the selection and identities of electors itself secret was rejected on the grounds that, while highly desirable, the Committee could find no practical way to actually do it. It was proposed that any elector or journalist who leaked the name of an elector be sentenced to be drawn, hanged, and quartered, his family sold into slavery, and his newspaper office razed and the site sown with salt. This was considered more seriously than one might expect, but was ultimately rejected on the grounds that there is probably no market for slaves taken from families of journalists.

The administration of an oath was uncontroversial, and the proposed wording caught the fancy of the Committee.

The remaining concerns of the Committee are whether the Electoral College is too large for effective deliberation and whether it will actually choose to deliberate. It is predictable that parties will nominate candidates well before the College meets and run mass campaigns to build support for them, so that many electors will come to the College with their minds already made up. However, the method of random selection has the merit of minimizing the number of political devotees among the electors, so that there is hope most will take the deliberative function seriously. The administration of the oath may also be helpful; a majority of Americans are still nominally religious and may regard an oath.

There remains the question of whether to sequester the electors during their proceedings. Almost all the members of the Committee favored this, but only if it would not make service onerous. The decision was made to leave this unspecified, so that the Chief Justice would have power to sequester, possibly acting on guidance from Congress. In general, the Committee were sympathetic to proposals for secrecy and ample compensation for electors, but only if there was realistic hope of putting procedures into place that would actually provide these things.

Finally, there is the question of legitimacy. Would the voting public actually accept a President selected by a random panel of their fellow citizens? There were indications that there would be resistance to this, particularly in light of the “sunlight as disinfectant” myth prevalent in our political culture; but there are also indications that if the proceedings could be made as quasijudicial as possible, the public might accept them as they generally accept (albeit sometime with grumbling) jury verdicts. The Committee felt there was actually some strength in not having the mass of citizens directly choose or ratify the President; they would not feel so much sense of ownership, which might be a useful counter to Caesarism, and might make impeachment and removal by Congress when necessary less difficult.

The Committee welcomes further public comments on the entire Federal Constitution v2.0 Draft 2.


*We know. We apologize.

Comments (6)
Filed under: Deseret Review,I can't possibly see how this could go wrong | Tags: , , ,
January 13th, 2017 13:31:15

La Llorona
January 13, 2017

Now that you’ve explained it all, the thought that this splendid proposal will probably never see the light of day just makes me weep.

January 13, 2017

Two comments.

First, the fact we have two parties is a logical consequence of our voting system. There are actually many alternatives. For example http://www.cgpgrey.com/politics-in-the-animal-kingdom/

This is not necessarily an endorsement of this particular alternative, but I do think our current voting system lacks. If is worth noting, that no system is perfect and every system can be gamed.

Second, it worries me that you are taking actual election by a new Electoral College seriously. If the EC voted in a way that didn’t reflect what people expected, it would delegitimize the proceeding. But more importantly, it would lead to the kind of shenanigans that allowed HRC to defeat Bernie Sanders in the Democratic Primary. Bernie was clearly the majority choice, but HRC was the consummate politician and she realized all she needed to do was win the superdelegates.

Instead of trying to reflect the will, picking electors and swaying them once picked, will be the actual focus of politicians.

January 14, 2017

I’m not clear on how picking electors will be part of the focus of politicians under this proposed system, where the electors are picked randomly based on geographical district.

I’m also not sure why politicians seeking to sway electors is different from politicians seeking to sway the entire body of likely voters. Except that the electors have time and a duty to look very closely at what the politicians are saying to them, close up. With power to subpoena documents that may or may not substantiate what the pols are saying.

I think the effect of this system will be to reproduce roughly what the whole body of voters would have chosen, if they had lots of time and lots of incentive to think carefully about their choice and power to gather all the information about candidates they might wish.

Among the powers I can imagine for the electors to exercise is to call in a candidate and put him under oath before asking him a long list of their questions. It reminds me of something His Majesty once said while watching a Presidential debate, which was that he was sorely tempted to see if he could use the Force to compel the candidates on stage to say exactly what they were really thinking. Alas, the Force can be used that way only on the weak-minded, and that means the most dangerous candidates would actually be helped by such a move.

January 15, 2017

There have been enough shenanigans involving creative gerrymandering, that I am concerned that ‘random’ will not truly be random. The devil is in the details here, in a lot of ways. It is easier to say random, and get something that is almost random but far enough off to sway things. For a close election, that would only be a matter of a few electors. Considering what is at stake, there will be considerable temptation on all sides to influence things.

The fewer levels of power there are to push, and the higher the stakes are, the greater temptation there will be to manipulate things.

If it were truly random, and free from tampering, then most of my concerns would be alleviated. Again, details.

January 20, 2017

Maybe I overstated the dangers here. Of course, if a govt is lawless, checks and balances and even laws can only do so much. Perhaps the particular definition of ‘random’ should be left to the States, with the Judicial branch overseeing it. I really would like to know what the rest of you think.

And just as long as we are talking about the Constitution, two otherwise unrelated things.
(1) the Vice President Office, as it is, is a massive waste. Something, anything, better needs to be done. Perhaps even a radical change.
(2) I have seen enough agencies, police in particular, enrich themselves by their policies, until the financial considerations become more present in their minds than their original mandate. A simple law that forbade any agency from receiving, for their own use, any fees, taxes, money or goods. If you must have fees, the money from them would go to a common fund, so as to prevent conflicts of interest.

January 20, 2017

In the case of the police, keeping the “fees” they collect is a moral hazard.

In the case of the park service, keeping the fees they collect is an incentive to maximize use of the park. I’m not sure this is a bad thing.

I think that has to be done on a case by case basis, and that’s the sort of thing that a Constitution doesn’t specify well.

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