Defending a System that Has Long Since Collapsed: The Electoral College

Since we’re getting closer to the presidential election (which will not come soon enough), we’ll soon be in that brief moment when we will temporarily notice that presidents are not chosen by elections, but by the strange institution of the electoral college.  Personally, I find the substantive defenses of the electoral college to be so weak they’re barely worth discussing.  It seems to me these are merely tossed in along with the real reason for most, which is an argument based in tradition.  But this too is flawed.  Must we maintain the present system for selecting a president if we wish to be faithful to the Constitution and those who framed it?  Only ignorance of the text and our history would lead us to answer yes.

The present Electoral College system bears no resemblance to the Framers’ design, and thus cannot be justified by reference to their intent.  The Constitution specifies a process that would seem entirely foreign to the modern observer.  Each state legislature is empowered to determine how their electors would be chosen.  Individual electors were to be chosen in each state, unconnected to political parties (which the Framers’ abhorred) and thereby not committed to any particular candidate. Electors in each state were to meet, in order to deliberate and choose two candidates, one of whom was to be from out-of-state.  This process was simultaneously a nomination and selection process.  Electors did not choose from some pre-existing slate of candidates.

These state-by-state meetings were supposed to function like a jury – a group of citizens pulled from the larger population for a particular purpose, who would return to the population on completing their task.  Electors were to make an independent judgment.  It would be no more appropriate for an elector to commit themselves before hand then it would be for a juror to decide a case before trial.  The candidate with the most votes, if he received a majority, would be president.  The candidate with the second most votes would be vice president.  This is how the system functioned in the first two presidential elections, when electors unanimously selected George Washington.

By the election of 1800, the rise of political parties, despite the Framers’ clear wish to prevent them, had broken the Electoral College system they had created.  It has never functioned as originally intended since that time.  That election led to modest constitutional reforms, embodied in the Twelfth Amendment, which accepted political parties as part of the process, and ensured that electors would choose presidential and vice presidential candidates separately.

How we as Americans choose a president has changed considerably since that time, but much of what we today associate with the Electoral College is not determined by the text or by the Framers’ intent.  The rules are generally a product of state law, not constitutional command.  First, we have a primary process to decide nominations for each political party.  In the general election, voters see ballots that list the names of the various presidential candidates, but are really choosing electors who have previously committed to those candidates.  Despite these commitments, those electors are free to vote as they please.  Most states give all of their electoral votes to the candidate who wins the most votes in that state; two do not.  None of these things is a product of the Framers’ design.  Electors still meet in each state, but their role is simply to ratify the choice made by their state’s voters.

Debate over the Electoral College tends to ignore these facts. We are told either that we must maintain the system to ensure fidelity to the Founders’ concerns, such as federalism, minority rights, or protecting the concerns of small states, or reject it because of the flaws they left us.  For the latter group, the tendency is to assume that these flaws reflect the Framers’ purposes – a distrust of the people, and a belief in elite control over democratic institutions.  Both sides miss the point.  Regardless of anyone’s private motives, like most of the original constitution, the presidential selection process was justified on the basis of popular sovereignty.  Their system held out the possibility of popular control, however indirect that control was meant to be.  But more importantly, the framers’ original design may well have done those things, but cannot justify today’s system, which is considerably different.

The Framers left us—the people—two tools for changing the rules.  The first was constitutional amendment, which they themselves used to modify the system in the early days of the republic.  An amendment could jettison the Electoral College and replace it with a direct election.  But they also specifically empowered state legislatures to decide most of the details of the system.  One proposal, the National Popular Vote, would ensure that the candidate who received the most votes would also receive the electoral votes to win the presidency.  It has already been adopted by nine states.

If we the people become convinced that the system we have today does not provide us with control we deserve, then it is our right and duty to change it.  Like politicians have over the past two hundred years, we can do so through state laws rather than constitutional amendments.  Making those changes would help restore the principles of the Constitution; failing to do so makes a mockery of them.

Thomas Jefferson warned us long ago to avoid treating the Constitution with “sanctimonious reverence,” insisting that “institutions must advance…and keep pace with the time.”  At a time when Americans feel increasingly dispossessed from government, failing to ask fundamental questions about how to best strengthen our democracy is no longer a luxury.

For what it’s worth, I’d like to see the development of a democracy agenda.  Rather than arguing about all the many ways our system  (both constitutional and subconstitutional) fails to live up to our ideals, we need to connect the various problems and solutions.  And while constitutional change is a worthy goal, there are many things we can do short of that which would improve things tremendously, and make constitutional change more likely. That agenda could include–an end to the unconstitutional filibuster, a universal right to vote, and public funding for campaigns, along with jettisoning the electoral college.  And we can do the last one (and for that matter, the first one) in the knowledge that we aren’t killing anything the Framers put in place.

The Uses, and Abuses, of the Term ‘Markets’

When you come down to it, the word market is a negation.  It is a word to be applied to the context of any transaction so long as that transaction is not directly dictated by the state.  The word has no content of its own because it is defined simple, and for reasons of politics, by what it is not.  The market is nonstate, and thus it can do everything the state can do with none of the procedures or rules or limitations.  It is a cosmic and ethereal space, a disembodied decision maker–a Maxwell’s Demon–that, somehow and without effort, balances and reflects the preferences of everyone participating in economic decisions.  It is a magic dance hall where Supply meets Demand, flirts and courts; a magic bedroom where the fraternal twins Quantity and Price are conceived.  It can be these things precisely because it is nothing.

Because the word lacks any observable, regular, consistent meaning, marvelous powers can be assigned to it.

James K. Galbraith, The Predator State

“The Struggle for Justice Doesn’t End With Me”

You Can’t Decry Conflict and Seek Justice

[Updated below]

Melissa Harris Perry has a new piece reflecting on the recently concluded successful Chicago Teachers Union strike.  Her point – the battle between “reformers” and “teachers” was harming the school children caught in the middle. (This despite the rather substantial student-centered reforms* teachers were calling for – she adopts a standard conceit of corporate ed reformers that they seek reform while everyone else supports the status quo).

I couldn’t help but be reminded of Martin Luther King‘s words.

You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative.

The reality is, whether intended or not, when liberals decry conflict, which is standard rhetorical position, they are supporting the position of the powerful.  Rahm Emanuel, backed by billionaires (including Donald Trump) is powerful, and the status quo is for him and the other corporate reformers to get their way despite the opposition of teachers, parents, and students without significant resistance.  Without resistance, they simply get their way to push their neoliberal reforms.

Those reforms are hurting children, hurting communities, undermining public sector unions, and they don’t work.  Children aren’t served by a lack of air conditioning, music and art instruction, or libraries.  Children don’t benefit from waiting for textbooks to arrive long after the semester begins.  Children don’t benefit from increasing hours spent devoted to high stakes testing and preparing for these tests.  Hopefully, we’re beginning to see real organized resistance based on the idea that teachers are valued professionals and that every child deserves the opportunity for a quality public education.

I know many on the left point to the power of conservatives to explain our difficulties.  But this, and related disputes, suggest our bigger problem is that the left is divided.

I don’t know if Karen Lewis or other key figures from the CTU will get a chance to be heard on MSNBC in the coming days.  So I’ll close with Lewis’ words.

I do not understand why people think what we did was special. I do not understand why people think I’m a leader. I am a teacher who hates what’s happening to our children. We cannot go along with harm. Plain and simple. Sometimes I feel like we’re in that bad psych experiment where people give folks electric shocks because they were told to do so. I am embarrassed by all the attention and I would like to go somewhere and be quiet. I didn’t realize my life would be this nuts.

Respectfully, I understand why people know what they did was so special.

Thanks CTU. In solidarity.

* Seriously, if you haven’t yet, you should read what the teachers are still fighting for: The Schools Chicago’s Students Deserve.

[Update] Corey Robin gives a quick break down of some of the things the union won that supposedly hurt the kids.

 

If This is the Best They Can Do: The Tragedy of Terry Williams

Andrew Cohen has an amazing piece in the Atlantic about Terry Williams, the latest horrendous death penalty case that is winding its way towards an execution in Pennsylvania.  Despite a lustful desire to kill someone from the state’s machinery of death, the state hasn’t executed anyone who had not given up fighting it since before the Supreme Court temporarily halted the death penalty in 1976.

Williams suffered years of sexual abuse and violence from an early age.  Cohen rightly calls it a horrific life.

When he was 17, Terry Williams snapped. On January 26, 1984, when a man named Herbert Hamilton tried to sexually assault him, when the older man plied the teenager with gifts and then tried to rape him, Williams finally fought back. Hamilton stabbed Williams. Williams stabbed back, 20 times the autopsy revealed, until and after Hamilton was dead. Prosecutors portrayed the crime as a homosexual love affair gone wrong. In 1985, a jury convicted Williams of third-degree murder and a judge sentenced him to 10 to 20 years in state prison.

While Williams isn’t on death row today because of the Hamilton case that case is instructive in establishing a pattern of behavior on the part of Williams during that period in his life. A few months after Williams murdered Hamilton, a few months after the young man turned 18, he murdered another sexual predator, another one of the reported child rapists into whose realm he had wandered, another man who he says had violently assaulted him, a man named Amos Norwood, leader of the acolytes at St. Luke’s Episcopal Church in Philadelphia.

Norwood plied Wiliams the same way the others had. The more violent the sexual predator became during his repeated rapes the more money he would give Williams. On June 10, 1984, Norwood took Williams to an unlit parking lot and raped him until he bled. The next day, June 11, 1984, Williams brutally murdered Norwood with a tire iron, the culmination of an attack Williams’ doctor later attributed to his years of abuse. This time, following a brief 1986 trial, a jury convicted Williams of first-degree murder. This time, he was sentenced to death.

That’s  background is precisely the sort of thing that is supposed to be taken into account at the penalty phase of a trial, when the question of the death penalty is considered. But it was never even investigated, and the state cut a deal with Williams co-defendent for his testimony that offered an entirely different story of an unprovoked killing (that he’s since recanted.)

It’s not just those of us, like me, that oppose any executions that think this case is a travesty.

This is so despite the fact that the widow of Williams’ victim now believes that his sentence should be commuted to life. It is so despite the fact that eight former judges — federal and state — now believe his trial was unjust. It is so despite the pleas of 28 former prosecutors — federal, state and local — who have gone on the record saying that justice would be served by clemency. It is so despite the fact that five of Williams’ trial jurors have come forward and declared, under oath, that they never would have recommended a death sentence for him had they known of material facts his defense attorneys did not introduce at trial.

Read the whole thing. It’s beautiful and disturbing.  But here’s my question. The state wants to kill someone.  And yet here they choose an absolutely devastating case, one that demonstrates everything wrong with the system (except a valid  innocence claim, which are also fairly common), one that involves a youth victim of sexual assault (after the state’s failure to stop Sandusky), one that is so bad it’s generating opposition from all sorts of people who strongly support the death penalty in the abstract.  Wouldn’t they choose a case that show cases the best fact pattern imaginable for the pro-death position?  But if you are at all familiar with the death penalty in the United States, you’d know that no such case exists.  Support for the death penalty rests on a fantasy of those who grew up in nice homes and are not crazy who go on killing sprees, who hire the best legal team, and on and on. But it is just a fantasy. Pennsylvania knows this, which is why they alone won’t even tell their juries that life without parole is an alternative to the death penalty.

The system as it actually exists cannot be defended.  That seems like reason enough to end it.

[Update] Cohen has a follow up piece noting that the state pardons board voted in favor of clemency, 3-2, but state law require a unanimous vote.  As he notes, the board members do not offer reasons for their votes, but the prosecutors’ brief opposing it tells much of the story.  There’s a great deal to be outraged by, but this is particularly disturbing.

The brief also tells us that some of the same state officials who came late to the Sandusky scandal, reassuring their mortified constituents that they are sensitive to the difficulties in reporting child sex abuse, have cynically turned that argument around in Williams’ case. He didn’t come forward, either, for many years, to report the ways in which he was being raped by older men, including older men in positions of power and trust. And now, say these politicians and bureaucrats, it’s too late for Williams to bring it up; too late even though his life is on the line.

Reading is Fundamental: The State of the Discipline of Political Science

From the outgoing editors of the American Political Science Review.  I largely agree, and have since the first time I looked at the journal in the mid-1990s.

On the negative side, we have two main observations. First, although the discipline as a whole is less fragmented than we had feared (noted earlier), some subfields—and you know who you are—continue to be riven by ideological or methodological conflict. Too often, a paper in one of those fields draws recommendations of “reject,” “minor revision,” and “accept” from three equally esteemed referees. When reviewers diverge so greatly, the editorial team’s judgmental burden increases significantly, compelling editors to discount some expert advice (if possible, without antagonizing reviewers) in order to provide coherent advice to authors. We have no answer to this puzzle, but simply note a pattern accurately described by one co-editor: increasing engagement across sub-disciplines, sustained fratricide within some.

Second, we have become painfully aware of how badly (or how little) some of our colleagues read. Articles are too often cited, by authors and by referees, as making the exact opposite of the argument they actually advanced. Long books are noted, with a wave of the rhetorical hand but without the mundane encumbrance of specific page or even chapter references; and highly relevant literatures, even in leading political science journals, are frequently ignored. We may have fallen victim to an occupational disease of editors, but we have often found ourselves moaning, “Doesn’t anybody read anymore?” It is cold comfort that this sloppiness extends well beyond political science. A recent study has shown that, even in “gold standard” medical research, articles that clearly refute earlier findings are frequently ignored, or even cited subsequently as supporting the conclusion they demolished.

So we advise our successors to maintain, and even expand, vigilance against jargon and murkiness; and we advise authors, referees, and readers generally to further and broaden the conversation, not least by reading seriously what has been, and is being, written.

(This reminds me that I was thinking of writing a post that discussed books that seem as though most people only knew their title, and how they were misrepresented as a result.)

I have two additional thoughts  One is that the solution to the problem noted in the first quoted paragraph isn’t very hard.  It is that when someone is clear about what they are doing, the important question is how well they do it.  This is generally expected of those who come from a more heterodox perspective (like me), but the expectation should be that everyone should.  That you prefer a different theoretical or methodological approach is, at times, irrelevant.  Part of the problem is that so much of American political science takes so much for granted that it can’t usefully discuss these issues.  Only foregrounding them, and discussing them, can allow us to move forward.

The other thing is about the lack of reading.  It’s a matter of faith among many orthodox social scientists that the cluster of work that involves case studies, qualitative research, non-positivist methods, etc., does not lead to advances in knowledge because they don’t build on each other.  (There are other objections too, but that’s for another day).  But the whole conceit of hypothesis testing actually fails to make clear the central role of reading what others have already said.  According to Karl Popper, where hypotheses come from is irrelevant.  The rhetoric of hypothesis testing suggests that a single test can lead to the rejection of a theory, when in reality it’s difficult to find any theory (in political science at least) that has been rejected because it failed one or even a series of hypothesis tests.  Of course a case study is partial, but so is any study.  The important question is not whether one study can settle anything on its own (it can’t) but rather what it, along with what is already known, can tell us.  The scientific method does not include reading and writing, even though all research begins and ends with these things, and usually involves it along the way.  Graduate training organized around statistical techniques obscures this.  An approach that more self consciously and explicitly situates our research within the work of others is necessary to solve this problem.

Of course, it’s unlikely the editors would agree with all that.

Unfortunately, I doubt this will have much impact.  For years the APSA presidential addresses have included trenchant criticisms of the discipline.  But individual beliefs and values do not drives social outcomes, despite what orthodox political science would have you believe.

I learned that from reading.

Via Chris Blattman.

Don’t Mourne, Organize! : Harold Meyerson on the Labor Movement

Harold Meyerson has a substantial and important piece surveying the problems of the union movement, and the problems of a liberalism facing a disappearing union movement, in the Prospect.  It’s well timed, given the inspiring Chicago Teachers’ Union strike that happening as I type this.  Meyerson notes, as he has in the past, a pessimism among unnamed leaders of in the movement – although it seems clear this includes top people at SEIU (see below)

Coming on the heels of the failure of the Democratic Congress of 2009–2010 to amend the National Labor Relations Act so that private–sector workers wouldn’t risk their jobs by forming a union, the Midwestern setbacks struck a growing number of commentators as labor’s death knell. Losing jobs as technology transformed workplaces, losing both jobs and middle-class wages as globalization transformed the economy, and blocked by statute and employer opposition from expanding—unions, some concluded, were history.

Within the labor movement, a number of leaders and activists quietly shared the same pessimism. They had invested in organizing with little to show for it. They had invested in politics but found that the Democrats they’d helped elect could not—or worse, would not—come to their aid. In 2008, they had seen the entire edifice of deregulated capitalism totter and almost collapse, plunging the nation into its deepest and most intractable recession since the 1930s. But unlike the ’30s, when workers flocked to unions, the current recession has only intensified labor’s downward spiral and business’s ascent. “What would it take for labor to come back?” one senior union staffer asked earlier this year. “This was the crisis we were waiting for, and it didn’t do it.”

But has the investment in organizing been substantive or symbolic?  I think it’s been real for some unions, but for the union movement as a whole it hasn’t been the case.  In part this is because in a time when union membership has been declining for over a generation, there is declining funds, and these are going towards electing Democrats who have repeatedly failed to bring about labor law reform that (supposedly) justifies these expenditures.  As Meyerson notes later:

In 2008, SEIU spent more than $60 million in its campaign for Barack Obama and congressional Democrats. This year, labor is likely to spend about $400 million on the election.

That’s a lot of money–money that isn’t being used to organize.  Whether unions should be involved in electoral politics isn’t the issue –it’s the relative magnitude of the resources involved.  I simply doubt that most are spending anywhere near as much on organizing as they are on elections.  Again, SEIU is instructive.

In an even more radical move away from organizing workers, SEIU last year suspended its unionization drives and instead invested tens of millions of dollars in community–organizing projects in 17 cities. The union hoped to create a massive network of minority voters that could move American politics leftward, but the campaign proved largely unsuccessful.

But there are examples where individual unions have seen increases, both in membership and even more crucially to my mind, in density.  Some are discussed in the piece. And there are examples of political strategies that have seen great success as well – Meyerson discusses the role of Miguel Contreras, of the Los Angeles County Federation of Labor and Madeline Janis of Los Angeles Alliance for a New Economy (LAANE).  The activities of LAANE are particularly important because they have successfully challenged the notion that many corporations are getting returns based simply on “the market”.

Janis’s thesis was that businesses that operate on government-owned or -assisted properties or that have government contracts should repay the city by bettering the lives of the workers they employ and the communities in which they operate. LAANE’s first major victory was persuading the city council to require cleaning companies with which it had contracts to pay their workers a living wage—a sum several dollars higher than California’s minimum wage (or a bit lower than that if they provided their workers with health coverage). Over the years, the scope of such ordinances was broadened to encompass card-check unionization at hotels and sports arenas that received redevelopment funds; local-hiring requirements for developers of major projects; and clean-air standards for trucks at the Port of Los Angeles. Some of these ordinances have served as models for living-wage and other laws in more than 140 other cities. “A bank that makes an investment wants a return for its money, and so does the public,” Janis says. “The returns to the public should include good jobs, child-care centers, cleaner air, affordable housing.”

Ultimately, I’m not as pessimistic as some of Meyerson’s sources are about what’s possible, but I do fear the impact of that view.  Labor law change is important (and for many workers who aren’t covered under federal labor law, could be achieved at the state level where that’s possible, even without scrapping the NLRB, one of the options discussed in the piece.) But that doesn’t mean it’s necessary to move forward.

One last point: An idea Meyerson neglects is the idea of  making labor organizing a civil right, which it should be noted, could also be done at the state level for those not currently covered by federal labor law. That should definitely be part of this conversation.

Fear: A Brief 9-11 Reflection

Yesterday, I saw police in armor with automatic weapons on both legs of my commute. They were not near any military installation, government building, or anything like that. They were pacing aggressively, as if a serious threat could pop up at any moment (presumably not the bombers we’re warned about on the Metro every day with a recording by Janet Napolitano).

I’m OK with never forgetting.

But how about ending being so fearful.

Agreeing with Hayek: ‘Interference’ is Incoherent

The question whether the state should or should not ‘act’ or ‘interfere’ poses an altogether false alternative, and the term ‘laissez faire’ is a highly ambiguous and misleading description of the principles on which a liberal policy is based. Of course, every state must act and every action of the state interferes with something or other.

Friedrich Hayek, The Road to Serfdom via Bernard Harcourt

More on the Importance of Unions: Getman on UNITE HERE

At Talking Union, Julius Getman explains Why the Battle Between Hotel Workers and Hyatt is Important.

First, it matters to the union movement, which as I’ve noted, is in crisis.

The effort to organize Hyatt is a key element in the monumental task of restoring the private sector labor movement. The hospitality industry is vast and growing. UNITE HERE is a democratic member-centered union. It is seeking to organize the industry one hotel and one employer at a time. It is likely to be successful if Hyatt will agree to a system under which the workers without the pressure of a management campaign decide whether or not they wish union representation.

Given how important a strong labor movement is for combating inequality (as Lawrence Mishel provides further evidence for in Unions, inequality, and faltering middle-class wages), the restoration of private sector unions matters for everyone.

But it matters for electoral politics as well.

The political implications of this are enormous. Immigrant workers generally and Hispanic workers in particular are the sleeping giant of politics in States like Texas and Arizona. As Harry Reid’s union energized, come from behind, victory in Nevada in 2010 demonstrated [which I wrote about here], unions stimulate political involvement and provide a vehicle for it. Many years ago unionized immigrant workers transformed politics in states like New York, New Jersey, and Ohio. They can do the same in Texas. If Texas is changed politically the country will inevitably and permanently be different politically.

It’s long been clear that if unions could successfully penetrate the South, it would open up enormous possibilities for progressive change.  And given that labor law change seems largely out of reach (it’s been sought under each Democratic president since LBJ and each time was blocked by a filibuster in the Senate), it’s worth thinking about what can be done under the existing legal regime. This regime, while extremely hostile to union rights, has seen successes.

Getman says “The Hyatt campaign can be a major step in strengthening the alliance between labor and other progressive groups.”  I hope so, but the hard work of organizing hasn’t captured the imagination of most progressives.  Such outside support could pressure Hyatt to allow workers to decide for themselves whether they want to join a union.