Arguments All the Way Down

By Jonah Goldberg

Wednesday, August 05, 2026

 

The system isn’t the problem.

 

Abdul El-Sayed won the Michigan primary. I think that’s a shame. I think he’ll be bad for the Democratic Party and the country. No one should be shocked that I think that. I think he’ll be bad for the Democrats in three ways. He’ll have a harder time winning the general election, and the Democrats will have a much harder time retaking the Senate without Michigan. And, if he wins, he’ll likely pull the Democratic Party to the left, albeit at the margins. After all, he’d be one out of 100 senators, and it’s not impossible that his left-wingery will cause some Democrats to move rightward to signal he doesn’t speak for them. Which leads to the third reason I think he’ll be bad for Democrats. He’ll be another fringey Democrat that Republicans can point to as proof the Democrats are too radical.

 

The more one party seems extreme, or actually is extreme, the more space is created for the other party to seem or be extreme. That dynamic is one of the main reasons our politics are so dysfunctional. I think he could be bad for the country in other ways, because I think his policies are bad.

 

But I don’t bring up El-Sayed to explore any of those points.

 

I just want to touch on an argument he made throughout the primary. El-Sayed subscribes to a commonly held view on the left—and big chunks of the mainstream—that money is corrupting our politics. There are specific areas where I don’t think this claim is always wrong. For instance, the current president is corruptly making a fortune off the presidency. I don’t think money is corrupting Trump, I think Trump is corrupt and is making money as a result. I also think there are endless examples of consultants, lobbyists, and “influencers”—across the partisan spectrum—arguing for things contrary to the public interest for personal profit. This is not a new phenomenon in America—or anywhere else.

 

But where I think the “money corrupts politics” argument is wrong is where it is loudest: that special interests are buying power by supporting various candidates in elections. This claim was central to El-Sayed’s pitch. Because he is anti-Israel and two of his core constituencies—white college-educated progressives and Arab or Muslim Michiganders—are anti-Israel too, he often framed his claim in the context of AIPAC. “Donald Trump is not, himself, the disease of our politics. He’s just the worst symptom of the disease of our politics,” El-Sayed said in July. “The disease? It’s the system that allows corporations and billionaires and special interests like AIPAC to buy and sell politicians to rig the system against us.”

 

In furtherance of this claim, El-Sayed peddled a lot of politically ignorant twaddle insinuating that aid for Israel—but never aid for, say, Egypt—is why our schools and healthcare aren’t adequately funded. If you know anything about the amounts of money involved in education, healthcare, or foreign aid, you know this is demagogic nonsense.

 

But here’s the thing: El-Sayed won. So even if you buy the argument that billionaire and corporate money (or the Joooz) unduly influence elections, the claim can’t be that strong given that he won. The same goes for all of the DSA and generic Democrats who campaigned on such claims who also won their primaries or elections. How powerful can the Thomas Nast cartoon fat cats be if Bernie Sanders and Alexandria Ocasio-Cortez keep winning elections?

 

Money is obviously necessary in politics, but it’s not sufficient. Once you have enough money to get your message out, the message matters more than any additional money. If money alone won elections, we’d be in Michael Bloomberg’s second term (ditto if “the Jews” controlled everything). He blew over a billion dollars in exchange for winning the delegates of American Samoa. Billionaire Tom Steyer lost the California primary after spending enough money to scald a wet mule, as Haley Barbour might say. Hillary Clinton and her allies outspent Trump and his by nearly 2 to 1 in 2016.

 

Aha, some opponents of our system might say, that proves a different claim about how “undemocratic” our system is. Hillary Clinton won nearly 3 million more votes in 2016!

 

That’s true (and those votes weren’t, as Trump insists, from illegal immigrants). Trump won the Electoral College, not the popular vote, in 2016, blather about a “landslide” to the contrary. But we should acknowledge that this complaint is wholly separate from the claim that money buys elections. No one bribed the electors. They cast their votes, as prescribed by law, the way their states voted.

 

If you follow politics as closely as I have to in order to put food on the table, you’ll notice how the vast majority of people who make the money argument also make the abolish-the-Electoral-College argument. Given that they are completely different arguments, the only thing linking them is the conviction that “the system” is rigged against the complainers.

 

I am a defender of the Electoral College, even though I think the case for it is weaker than it has been, certainly in my lifetime and probably much longer. Part of the case for the Electoral College is to force presidential candidates to broaden their coalitions and get out of their comfort zones. If we decided elections by popular vote alone, that would increase the importance of money because candidates would focus almost entirely on major population centers, i.e. a handful of cities and states, and spend gobs of money in the most expensive media markets. By requiring candidates to cobble together majorities drawn from different states, candidates don’t just pay attention to small states, they pay attention to swing states, which are more representative of the median voter, not the parties’ base voters.

 

That system is breaking down somewhat, but it’s not the Electoral College’s fault. The reasons for that have to do with the nationalization of our politics and media ecosystem and the dysfunction of the parties themselves. Getting rid of the Electoral College wouldn’t eliminate those problems, it would exacerbate them. Indeed, as politically impossible as it would be in the current climate, I’m sympathetic to the idea of strengthening the Electoral College by giving electors more autonomy to defy their voters. I’m not wholly convinced, but I do think a lot of our problems stem from too much democracy and too little republicanism, which is why I’m constantly carping about weak parties and dumb primaries.

 

Speaking of republicanism, by which I mean the idea, broadly speaking, that leaders should be less slavishly beholden to voters and specific constituencies and more concerned with the general welfare—even, shudder, “the common good”—the thing that bothers me perhaps the most about the detractors of the Electoral College is the way they make it sound like America is so much less democratic than other countries. For instance, Yale’s Samuel Moyn recently whined to Ross Douthat that the Electoral College violates the principle of one man, one vote.

 

Part of this stems from the fact that a lot of people, and not just people on the left, have this vague idea that our system should be parliamentary. In their view, presidents represent a party. If a presidential candidate wins, he should get to do what he wants because the whole country voted for him and his party (never mind that the reasons people vote for a candidate are wildly diverse and often at odds with the reasons of other members of the same coalition).  

 

This idea is often expressed amid a lot of vomitous codswallop about “mandates.” An electoral mandate is a serviceable enough term for punditry, but it is an alien concept to the Constitution. If a Republican is elected president the same year a Democrat is elected to the Senate, that Democrat is under no obligation to rubber-stamp the president. Indeed, in all likelihood, that Democrat was elected to oppose the policies of the new president. (Does anyone think El-Sayed, if elected to the Senate, should or would be deferential to Trump because he was given a mandate in 2024? I mean, I’m sure Stephen Miller would make that case, but it would be a dumb case.)

 

A guy named Andy Burnham was just installed as prime minister in the U.K. Literally no one voted for him. I don’t mean that voters didn’t vote for him. No one, including the MPs of the quite unpopular Labour Party formally voted for him. According to their rules, since he was the only candidate with sufficient backing of MPs and party organizations, they didn’t even need to have a formal leadership vote. He was simply confirmed as the new leader of the party and the country. In fact, the last time they had a national election, he was a mayor. He wasn’t even in Parliament. How, exactly, is America less democratic than the U.K.? He’s not prime minister because of one man, one vote, but one man, no votes.

 

What unites the two arguments—money is the problem and/or the Electoral College is the problem (and for that matter “the Jews” are the problem)—is the attitude of the people making the argument. There is an arrogance that runs through our politics that rests on the belief that the only reason “we” aren’t in power or getting our way once in power is that the system is rigged in some way. It can’t be because our views are unpopular. It can’t be because decent and intelligent people disagree with us; it must be because the system is corrupt, rigged, unfair, undemocratic, etc. Looked at from a distance, you can recognize how so much of this stuff is less a thoughtful indictment of our system and more of a vague conspiracy theory.

 

This is the reason why parties in power bitch about the filibuster. We won! Why should there be any barrier to our will? You can be sure that if a Democrat wins the White House in 2028, many of the Democrats now defending the filibuster will start denouncing it and many of the Republicans now denouncing it will revert to calling it a vital tool of our constitutional system. I’m looking at you, Mike Lee.

 

Is there any doubt that if Trump lost the Electoral College in 2024 but won the popular vote, he and his loudest acolytes would have declared the Electoral College illegitimate?

 

El-Sayed is full of crap when he says the “disease” of American politics is money in general, and AIPAC money in particular. But American politics is suffering from a disease. Partisans, activists, and a great many voters suffer from a delusion that our constitutional mechanisms and/or various shadowy powerful forces are conspiring against the popular will and the common good. They think that if they lose an argument—and that’s all elections are, arguments about which candidates and which parties should prevail in a specific contest—it must be an indictment of the system.

 

But our system was designed for arguments. People talk about democracy in romantic, almost magical, terms. They think elections are profound expressions of the national will or spirit. They’re not. They’re arguments about who should have a job for a defined period of time. If they get the job, they don’t have a mandate to do things. If they have any kind of mandate at all—beyond faithfully doing the job assigned them—it is to argue for their position persuasively.

 

This is obviously the case for legislators. Their job is to persuade other legislators to pass laws. They can’t force their colleagues to do anything. But it’s also true of the president. He is not the “boss” of the legislative branch, nor of the courts, never mind governors, mayors, or American citizens more broadly. If anything, we’re his boss, because here the people rule. But he is expected to make arguments. He is supposed to marshal popular support for his policies—like, say, going to war with Iran—and he is supposed to convince Congress to pay for his policies. That’s it. It’s arguments all the way down.

 

I can’t stop thinking about this civic sermon by Antonin Scalia about the genius of our Constitution. As a classical liberal and conservative, my favorite part of the Constitution has always been the Bill of Rights, arguably the least democratic feature of our regime. The Constitution doesn’t make it impossible to infringe on our rights, but it makes it damn hard. It puts our rights on a shelf so high that it’s almost impossible to take any of them down. The only way to do so would be to form a coalition—again through endless argument at the national, state, and local level—so huge that the combined mass of the persuaded might be able to form a human pyramid tall enough to pluck it down.

 

But Scalia makes a powerful case that the genius of the Constitution isn’t the Bill of Rights. After all, it was an “afterthought.” The genius of the Constitution is that it makes it incredibly difficult for any single faction to gain and centralize enough power to trample our rights. It forces factions to compete for power through arguments. For obvious reasons, I don’t trust Trump with unchecked power. But I also wouldn’t trust Abdul Al-Sayed, or Bernie Sanders, or anyone else with unchecked power. Indeed, the fact that these people tend to believe that obstacles and inconveniences on their quest for ever-more power are somehow illegitimate or unfair is precisely why I don’t trust them with power.

 

The system has problems, but it isn’t the problem. The real problem is the people who think the system is the problem because it stands in their way and forces them to treat the arguments and interests of people they hate with respect. These are the sorts of people the founders wanted to check in the first place.

Keep the Electoral College

National Review Online

Friday, December 20, 2024

 

Senators Dick Durbin of Illinois, Brian Schatz of Hawaii, and Peter Welch of Vermont, with the endorsement of New York governor Kathy Hochul, have introduced a constitutional amendment to replace the Electoral College with a national popular vote. The senators should be careful what they wish for. Schatz complains that “no one’s vote should count for more based on where they live.” In the 2024 election, Hawaii and Vermont cast a combined 0.6 percent of the vote but counted for 1.3 percent of the electoral votes — nearly twice their popular weight. They and other small, hard-to-reach states would be further marginalized in a pure popular-vote system. Maybe Schatz and Welch should serve the interests of the people who elected them.

 

Our system is worth defending for those two most conservative of reasons: because it works, and because it is ours.

 

The stability of the American political system, designed in the summer of 1787, is a wonder of the world. Since it was tweaked by the Twelfth Amendment in 1804, our system for electing presidents has remained constitutionally unchanged. It has evolved only in practice within the long-settled rules. Nearly none of the world’s democratic systems existed in 1804. That stability, in and of itself, counsels against discarding the presidential election system for any but the most compelling of reasons.

 

What reasons are offered? Durbin says that the current system “disenfranchises millions of Americans,” but every state counts in the balance, and the voters of any state can attract great and immediate attention simply by signaling that the state is newly competitive. Ask the people of formerly safe states such as Georgia, Arizona, or Michigan. New York was once the nation’s preeminent swing state. California decided the 1916 election. Mississippi was a key swing state in 1976. By contrast, the voters of uncompetitive states who are more concerned with promoting the prospects of their favored party than with their local interests can do their ticket the favor of saving it time and money in the state. That, too, is a voice.

 

Schatz says that “in an election, the person who gets the most votes should win. It’s that simple,” and anything else is “undemocratic.” But in reality, very few advanced democracies choose their chief executive by a pure national popular vote (France and Ireland being prominent exceptions), and none of those are remotely comparable in geographic size and demographic diversity to the United States — unless one admires the electoral system of Russia. Yet, we do not consider it “undemocratic” that Justin Trudeau was twice chosen as prime minister of Canada in elections where his party did not get the most votes. Recognizing this reality, neither these senators nor other critics of the Electoral College tend to talk much about how other nations choose leaders. Our system may be unique, but the proposed replacement would be novel as well.

 

The United States has held 50 presidential elections since the dawn of mass popular voting in 1828. In 32 of those, one party won a popular majority, and in 31 of 32 cases, an Electoral College majority followed. The lone exception, in 1876, was an election so marred by terrorism and fraud that nobody takes its popular count very seriously. The Electoral College is thus likely to be decisive only when neither side can command a majority. The Democrats who won the popular vote but lost the election in 2016, 2000, and 1888 all fell below 49 percent of the vote. In such cases, geographically broad support is the next-best thing. Donald Trump won seven of the ten largest states in 2016 and 2024. He won just four in 2020. That alone is sufficient to explain why he won twice and lost once.

 

Tradition is one good reason to keep the existing system. Not only has it produced a remarkably durable democratic regime, but the very longstanding nature of the system is a boon to public confidence — which has been much under strain of late. Moreover, the thick layer of folkways and practices that have grown up around American presidential contests have taken root around the current rules. When our parties began choosing nominees by popular primaries in the 1970s, they naturally turned to state-based primary elections and caucuses conducted under a patchwork of local rules, rather than a single national vote. To change those folkways is to turn our backs on two centuries of our own history, for uncertain gain.

 

The existing system also promotes political moderation. Even with modern communications and media, America is a huge land of different people who live differently. In such a broad, diverse republic, we should not be ruled by the lopsided politics of any one region or faction. In 1860, Abraham Lincoln won popular majorities in states holding an electoral majority. But ten of the eleven slaveholding states that seceded in 1861 gave him zero votes (the exception, Virginia, gave him 1.13 percent). Should their regional veto have overridden the majority in states containing a majority of the voting population?

 

As Yuval Levin has written, the Electoral College is a moderating force: “Where a direct popular vote for chief executive would encourage each of the two major parties to focus on getting out its most devoted voters in the least politically competitive parts of the country, the Electoral College means there is little advantage to winning by an even wider margin in the safest states and that candidates, instead, have to focus on voters in the most competitive states, which tend to fall near the ideological middle. This is good for both national unity and the competitiveness of our politics.”

 

With Trump having won the popular vote in 2024, the real grievance of progressives is that the Electoral College forced the campaigns to focus more on the moderate politics of swing states and disincentivized them to drive up turnout in the most ideologically polarized precincts of the country. But Pennsylvania, Wisconsin, Michigan, Georgia, Arizona, North Carolina, and Nevada composed a good crossroads of America’s populace and sentiment in 2024. A party capable of winning none of them does not deserve national leadership, no matter how hated its opponents may be in San Francisco, Los Angeles, Chicago, and D.C.

 

There are also ample practical reasons to prefer the Electoral College. One reason why the January 6 riot at the Capitol was doomed to failure was that the decisive decisions were made in state capitals dotted across the map. To steal, or to overturn, an American presidential election requires a vastly geographically dispersed effort, in states run by different parties, elected in different years, conducting their votes under different rules, with different systems of courts and elections administrators. A unitary national vote would either give disproportionate power to the vote-counters of the nation’s most partisan precincts or (what the progressives may prefer) also require junking our whole current state-based electoral system in favor of a federally administered, uniform election regime. Otherwise, imagine not just the chaos of a national recount but an entire national election turning on California, which did not finish the first count of its votes this year until December 4.

 

Most Americans today trust how votes are counted in their own jurisdiction but grow increasingly conspiratorial when asked how votes are counted in further-off or more politically opposed corners of the country. By placing each state’s votes in a separate silo, the Framers of the Constitution wisely limited the vote-counting power of any local faction or machine to the capture of one set of electors.

 

That has proven especially important when a predominant local party abuses the voting rights of a minority, either by suppression or by fraud. In 1888, Grover Cleveland won 63 percent of the vote in the former Confederate states, largely on the back of mass suppression of the Republican-leaning votes of black Americans in the South. Had that election turned on the national popular vote, that would have given him the victory. But the concentration of his votes in the South doomed his campaign when he lost New York and Indiana, where Jim Crow did not rule the roost.

 

Finally, the urgent desire for a president chosen by pure national plebiscite reflects the inflated view that modern politics gives to the presidency. We elect senators by state, and the House by intra-state districts. To say that presidents should have a national democratic mandate uniquely untethered from the states is to give the president a symbolic advantage over Congress that the presidency does not deserve. Tocqueville, in writing the French constitution of 1848, worried that a popularly elected executive at the head of a vast administrative bureaucracy would overpower the legislature; three years later, the first man so elected made himself dictator.

 

The Electoral College was good enough to give us Washington, Lincoln, FDR, and Reagan. It has seen us through good times and bad, and through many different regional and demographic coalitions. It is not a perfect system, but men are not angels: No perfect system exists for the imperfect politics of imperfect people. It is our system, and it works. That should be enough.

Stop Complaining About the Electoral College

By Daniel McGraw

Monday, September 23, 2024

 

As the November election approaches, the United States’ electoral system is coming under renewed scrutiny. The US uses an Electoral College system, which counts every person’s vote and then assigns that vote a value based upon the size of their state. States with larger populations get more Electoral College votes. So, for instance, Alabama (population ~5 million) has seven congressional districts and two senators, which gives the state nine Electoral College votes; California (population ~39 million) has 52 congressional districts and two senators, which gives the state 54 Electoral College votes.

 

There are 538 Electoral College votes up for grabs, so whoever wins 270 or more wins the presidential election. With the exception of Nebraska and Maine, all states allocate their Electoral College votes on a winner-takes-all basis—so if a presidential candidate wins California by a single vote, he or she will nevertheless receive all 54 Electoral College votes. This can lead to lopsided results that do not reflect a candidate’s popular support. In the 2020 election, Joe Biden got 81.3 million popular votes (51.3 percent) to Donald Trump’s 74.2 million (46.8 percent), but he won 306 Electoral College votes to Trump’s 232.

 

Occasionally, an election result will be split between the popular vote and the Electoral College, as it was in 2000 and 2016, when the Democrats won the popular vote but lost the Electoral College count. At the time of writing, there is a nontrivial chance that this outcome could be repeated in November. In a post published on 17 September, US polling analyst Nate Silver estimates:

 

There’s now almost a 25 percent chance that Harris wins the popular vote while losing the Electoral College (and only a 0.2 percent chance of the other way around). This gap has continued to grow. And it can make poll-reading really counterintuitive. You’ll see lots of headlines saying that Harris is leading—but our elections aren’t determined by the popular vote. 

 

The prospect of a split result returning Donald Trump to the White House is leading more and more political analysts to argue that the Electoral College system is unfair and unrepresentative and that America should adopt a system of popular-vote tabulation to determine the winner instead. As Perry Bacon Jr. argued in the Washington Post on 16 September, “The U.S. presidential election system—with winner-take-all states and the electoral college—warps the political process and even the way people see their own country.”

 

Maybe it does. But Bacon doesn’t explain why the Electoral College system was introduced in the first place. Nor does he address the obstacles anyone seeking to change it will encounter. I don’t want to get into the pros and cons of the popular vote versus the EC system. I want to explain why discussing such a change is moot, because it is simply not possible in practice.

 

Compromise is an unavoidable part of any democratic system. When the US Constitution was drafted in 1787, the founders had to decide how the freshly independent and conjoined British colonies would elect the president of the new union. That debate provoked a good deal of disagreement and distrust. Some states wanted their legislatures to vote for the president, while others argued for a popular vote. The compromise solution didn’t make anyone happy but it was deemed acceptable enough to win ratification. As Jonathan Gienapp, a professor of history at Stanford University, explained in 2022:

 

Why did the Constitution’s authors choose this particular system for electing the president? The most important thing to appreciate is that they chose the Electoral College not because it was the most desirable option, but because it was the least undesirable. The leading alternatives—legislative selection by Congress or a national popular vote—were met with powerful objections. If Congress elected the president, it was feared that the latter would become the puppet of the former, nullifying any hope of executive independence. When it came to a national popular vote, meanwhile, there were worries that, at a time when information moved slowly, especially across such a large nation, voters would be familiar only with the candidates from their home states and thus tend to choose them. There were also grave concerns that the people would be seduced by demagogues. The delegates to the Constitutional Convention chose the Electoral College less because of its virtues than because of its competitors’ perceived shortcomings.

 

The Electoral College system was enshrined in Article II of the US Constitution, which sets forth the rules governing how the president and vice president are elected. It has been tweaked a bit in the years since, but it still basically operates in the same way it did when it was first adopted in 1789. The constitutional amendment required to change or replace this system would have to be passed by two-thirds of both houses of Congress, and then ratified by the legislatures of three-quarters of the states—38 states out of fifty. Alternatively, two-thirds of state legislatures could ask Congress to call a Constitutional Convention.

 

It is very rare for 38 out of fifty states to agree on anything in the US. Of almost 12,000 amendments proposed since the country’s constitution was ratified in 1788, only 27 have been adopted (the last one of any substance was passed in 1971, lowering the voting age to eighteen). Ten of those amendments constitute the Bill of Rights, ratified by states in 1791. “We have an amendment process that’s the hardest in the world to enact,” Aziz Rana, a professor of constitutional law at Cornell University, wrote in 2021. “That’s the reason why it’s basically a dead letter to enact constitutional amendments. You have to have rolling supermajorities across the country to do so.”

 

Under the Electoral College system, candidates must focus their campaigning on closely contested “swing states.” This time around, the Democrats are spending their time door-knocking, advertising, and stumping in states like North Carolina, Pennsylvania, and Arizona, but not in states they can expect to win comfortably like New York, California, and West Virginia. Switching to a popular-vote system, however, would bring cities like Los Angeles, Chicago, and New York into contention. As I pointed out in a 2019 article for the Bulwark, the fifty largest metropolitan areas would replace the swing states as the focus of campaigning, which would mean that large swathes of the US voting population would be simply ignored. In a polarised environment, the American public is unlikely to agree to such an outcome in practice, even though 65 percent of them say they prefer a popular-vote system in theory.

 

Some advocacy groups have suggested that the constitutional-amendment hurdle could be sidestepped entirely if states simply require their electors to vote for the winner of the popular vote rather than the winner of their states. The National Popular Vote Interstate Compact (NPVIC) would, in effect, try to implement popular-vote rules while keeping the electoral college. There are numerous problems with this approach, and were it adopted, it would almost certainly precipitate a constitutional crisis and a host of furious legal challenges.

 

But there are also practical reasons such a proposal would fail. For such a system to work, states with over 270 Electoral-College votes combined would need to agree. Currently, only seventeen states, with a combined total of 209 EC votes, have signed up, and getting the additional 61 votes looks nearly impossible. Red states are unlikely to agree to replace an electoral system that favours the GOP with one that is likely to advantage their opponents. It may be even less democratic than the present system. As Princeton University researcher Alexandra Orbuch has argued: “The states involved would effectively be silencing the rest of the country. And as we have seen, that means that the right-wing of the country would lose its voice in elections and thereby in policymaking essentially eradicating the diversity of thought and plurality that is so key to the American political character.”

 

Unfortunately, we have not heard the last of this debate, because activists persist in believing that any system that advantages their own party must be fairer by definition. All the alternatives on offer have problems of their own. We could try them all before agreeing that the one selected by the founders was indeed the least undesirable option available, but this would not be a valuable use of time and resources. Given the insurmountable obstacles to changing the US electoral system, critics of the electoral college would be better off directing their energies into formulating better campaign strategies under the existing system.

The National Popular Vote Idea Is Unconstitutional and Should Be Abandoned

By Peter J. Wallison

Tuesday, June 27, 2023

 

Conservatives have expressed legitimate concern about the National Popular Vote (NPV) project, an effort led largely by the Left to bypass the Electoral College and elect the president through a national popular vote.

 

This is not an effort to amend the Constitution, which would be enormously difficult. Instead, what the NPV seeks is an agreement or “compact” among the states, in which all the electoral votes of the participating states would be cast for the winner of the national popular vote, irrespective of who actually wins the electoral votes in each of the states that have joined the compact. For example, if California were in the compact (it is) and John Doe won the most popular votes in the national election, all of California’s electoral votes would be cast for Doe, even if Marilyn Moe had actually won the popular vote in California.

 

At the moment, legislatures in 16 states and the District of Columbia, with 205 electoral votes, have authorized their states to join the compact, so the approvals of states with an aggregate of only 65 more electoral votes are necessary for the compact to go into effect.

 

The latest target of the NPV movement is Michigan, which has Democratic majorities in its legislature. Michigan has 15 electoral votes, so if it joins the compact, states with only an additional 50 electoral votes are necessary for the compact to be activated at the next election.

 

Beyond the states that have authorized joining the compact (which can be reversed if the political balance in a state changes), there has been widespread editorial approval from the New York Times, the Los Angeles Times, the Chicago Sun-Times, the Miami Herald, and the Boston Globe, among others.

 

This all sounds rather troubling, and many conservative groups, particularly Hillsdale College in Michigan, have been warning about its dangerous implications. However, the fundamental idea behind the NPV is so flawed that it’s hard to believe it will ever actually be put it into effect once it is understood by the voting public. Moreover, even if it were adopted by enough states, it’s even more difficult to believe it would pass constitutional muster, as discussed below.

 

Accordingly — aside from the confusion the concept will initially produce — the Left is wasting its time and money pushing the NPV idea. Maybe that’s the only good thing about it.

 

Electoral Issues

 

Before getting to the constitutional issues, it’s useful to make clear the dangers to our democracy that are inherent in the NPV idea. If states with a sufficient number of electoral votes should join the compact, here are a few of the problems that would arise.

 

First, the arguments over who actually won a future election would never end. In the 1960 election, for example, John Kennedy won 49.72 percent of the popular vote, while Richard Nixon won 49.55 percent. But for the fact that the electoral vote was 303 to 219, we’d still be hearing that Nixon actually won. Then in 1968, the margin was 0.7 percentage points, Nixon getting 43.4 percent to Humphrey’s 42.7, but because the electoral vote was 301 to 191, there was no fight. The point here is that the relative certainty provided by the Electoral College over the years has preserved us from divisive disputes about who actually won a particular election.

 

Second, as these close elections imply, the benefits of cheating on votes will rise as the popular-election numbers get closer. In 1960, for example, Kennedy beat Nixon by 0.17 percentage points in the popular vote. If Nixon’s campaign could have found enough votes that had not been properly counted — sometimes in only one state — it could have changed the popular-vote outcome of the election. So, if popular votes are to be the barometer, it is likely that the most prolific cheaters will be rewarded. One might imagine what the world would be like if, say, in 2024 the GOP candidate were defeated nationally because of a historic outpouring of voters in New York City, Chicago, or San Francisco.

 

Thus, if the NPV were to go into effect, it would magnify the difficulty of electing a president without continuing controversy. This could be a serious problem for more than simply the United States. The duly elected president of the U.S. is an acknowledged world leader, and a continuing dispute about the president’s legitimacy would seriously disrupt world order.

 

Constitutional Issues

 

As bad as things would be in an election based on the NPV, the constitutional case against the NPV is even stronger than the electoral case. A good deal of the discussion around the NPV is devoted to whether the states can constitutionally create a compact on this subject without the approval of Congress. This is an interesting issue from a constitutional perspective, but it is irrelevant if the Constitution itself would bar the process that the NPV contemplates.

 

That is exactly what would happen when, under the NPV process, any citizen’s vote for an elector pledged (in turn) to vote for that voter’s preferred presidential candidate, would be nullified if all the state’s electoral votes are transferred to the winner of the national popular vote. If the NPV goes into effect, what will happen in this case is exactly what the language of the 14th Amendment forbids:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . nor deny to any person within its jurisdiction the equal protection of the laws.

 

It can hardly be imagined that taking away a voter’s right to have a vote counted for the person he or she prefers for president is not abridging that person’s privileges and immunities under the 14th Amendment and the U.S. Constitution.

 

The Constitution, of course, contemplates that those who vote for a candidate who does not gain a majority of the popular vote in a particular state will not have had a role in directly electing the president, but that is how the Electoral College works, the benefits of which are described above. That voter, however, has an equal opportunity to elect a president with every other voter in the same state. The NPV nullifies the vote of every voter in a state that does not vote for the winner of the national popular vote.

 

Moreover, the same thing is true for voters in states that have not joined the NPV. These voters have voted for electors whose votes will not count toward the election of a president because other states have agreed to have their electoral votes committed to a candidate who won the popular vote. This could be especially egregious if that candidate did not actually win the popular vote in the states where a majority of the electoral votes, as provided in the pre-NPV Constitution, actually occurred.

 

If this is not clear enough, imagine a state that adopts a law — apart from the NPV — that says, “Irrespective of how the vote for president goes, this state’s electoral votes — by the direction of the state legislature — will be cast for the winner of the national popular vote.” That, of course, would be widely denounced, but it is not any different in concept from the NPV, except that it is not done as part of a multi-state compact.

 

Under the Constitution without the NPV in effect, each voter has an opportunity to vote for an elector who in turn would be pledged to vote for the presidential candidate favored by that voter. This right was certainly one of the privileges of citizens of the United States and without question is a right protected by the 14th Amendment. However, if that voter’s state has joined the NPV, that voter will have lost that right. No matter what candidate the voter prefers, the electors in that voter’s state will be required by the state’s law to vote for the candidate who has the most popular votes nationally.

 

The NPV, in effect, is a state law that takes from every voter in a state that joins the NPV compact — and in effect every other state that does not join the compact — the right to have his or her vote counted in that state toward the election of the president of the United States. Instead, under the NPV, the voters in any state that joins the NPV will, without any decision by the voter, be cast for electors who will vote for the presidential candidate who receives the most popular votes in the United States as a whole, and not even perhaps in the voter’s own state. This is as clear an example of a violation of the 14th Amendment as one is ever likely to see.

 

Under these circumstances, the National Popular Vote idea should be abandoned, at least until the 14th Amendment is repealed or the Constitution is amended to permit the election of the president through a national referendum.

Time for the Senate to Vote on Electoral Count Act Reform

National Review Online

Friday, September 23, 2022

 

The House, with the votes of every House Democrat joined by only nine Republicans, has passed the Presidential Election Reform Act. The House bill would amend the Electoral Count Act of 1887 in order to avoid a replay of the challenges brought to certifying the 2020 election. It is rare that anything good comes out of a largely party-line Democratic vote by Nancy Pelosi’s caucus, and there are at least one or two genuine differences between the House and Senate versions of ECA reform on which the Senate should hold the line. Nonetheless, Senate Republicans should push for a prompt vote on the Senate version of the bill with the aim of getting ECA reform enacted into law in this Congress.

 

As we have urged in previous editorials, the basic structure of the ECA is a good one, giving primacy to the states in determining the winners of each state’s presidential electors, but the 1887 bill’s meandering language is in need of clarification. Both the House bill and the Electoral Count Reform and Presidential Transition Improvement Act (the Senate version) would preserve that basic structure while addressing the ambiguities exploited by Donald Trump in January 2021 (and, to a lesser degree, by Democrats in 2005 and 2017). Both bills would:

 

1.       Clarify that the vice president’s role in counting electors is ministerial and does not include the power to make unilateral rulings on whether to count a state’s electoral votes;

2.       Significantly raise the number of objectors necessary in order to force a vote on objecting to a state’s slate of electors;

3.       Restrict states from changing their laws for selecting electors after Election Day, with the primary aim of preventing state legislatures from appointing their own electors if they don’t like the results of the popular vote;

4.       Tighten the rules on governors certifying electors and courts resolving challenges, while extending the time for the Electoral College to meet, with the goal of ensuring a swift and certain determination of election disputes before the electors cast their ballots;

5.       Clarify that the only grounds for a state to hold additional votes or to claim that an election was not duly held on Election Day is if the state suffered a catastrophic event such as a natural disaster or terrorist attack that disrupted the vote; and

6.       Require that lawsuits by presidential candidates under federal law be brought in a three-judge district court in the state’s capital in expedited fashion.

 

There are differences. The Senate bill includes a section on presidential transitions, which the House bill does not. Under the House bill, one-third of each chamber must raise an objection in order to require a vote; in the Senate bill, one-fifth of each house is required. The two bills have different rules for lawsuits before the three-judge court. None of these should be showstoppers that would preclude a conference from resolving differences.

 

Senate Republicans should, however, draw the line at the provision in the House bill that “no person acting under color of law shall willfully fail or refuse to tabulate, count, or report any vote that is timely cast and is otherwise valid under applicable State and Federal law,” and creates a right to sue to enforce this in a three-judge federal court. This provision would authorize, for the first time, a federal cause of action arising entirely under state election law, thus taking many election challenges out of the state courts and undermining the ECA’s respect for federalism. Moreover, the bill creates no parallel right to sue to stop the counting of legally invalid votes.

 

The House bill also creates a specific cause of action to allow federal-court lawsuits against a governor for refusing to certify electors — a provision demanded by Democratic Party election lawyer Marc Elias, who has denounced the bipartisan Senate bill. This provision is also broadly drawn, allowing lawsuits against a governor for violating the certification requirement “including by failing to certify the appointment of electors or because the certification does not accurately reflect the final election results of the State as modified by any recount or judicial or administrative proceeding conducted pursuant to State or Federal laws duly enacted prior to” Election Day. We do not object to a narrow rule allowing a federal court to order a governor to certify results once all the state and federal processes for election contests are exhausted — a duty that should be ministerial, and not discretionary on the part of the governor — but if the Senate were to agree to add such a rule to the bipartisan bill, it should insist that it not create a new backdoor avenue to more election lawsuits.

 

Aside from these disagreements is the question of whether the Democrats are sincere in wanting ECA reform enacted into law at all, rather than giving them a talking point with which to campaign against Republicans as election deniers. The House bill included an unnecessary Trump-bashing preamble seemingly designed to alienate House Republicans; the Senate bill does not.

 

Moreover, while the Senate bill now has ten Republican cosponsors along with the sponsorship of all 50 Senate Democrats, and could therefore surmount any filibuster, it has yet to be brought up for debate in the Senate. In the spring, President Joe Biden and Majority Leader Chuck Schumer both openly opposed a vote on ECA reform for fear that it would undermine their case for a broader overhaul of voting and elections law, which predictably failed. On Tuesday, Mitt Romney accused Schumer of dragging his feet on holding a debate on ECA reform because he was “looking for a messaging bill to show that Republicans are unwilling to protect our elections process.” The bipartisan Senate group spent months meeting and studying the Electoral Count Act before reaching a legislative agreement to reform it on July 20. Legislative text of the House bill, by contrast, was released on Monday, and Pelosi forced a vote a little more than 48 hours later — bypassing the committee process and ensuring it would get as few House GOP votes as possible.

 

Romney and other Senate Republican supporters of ECA reform should call the Democrats’ bluff and demand a prompt debate and vote. If Schumer continues to resist, it will be further evidence that Democrats’ professed concern for the integrity of our democratic election process is just another cynical campaign slogan.

Time to Pass Electoral Count Act Reform

National Review Online

Tuesday, July 26, 2022

 

The American presidential-election system is purposely decentralized: Popular votes are counted and electors are awarded at the state level, and Congress then tallies the votes, with the vice president presiding. Contests over which votes to count are handled by state elections officials and state and federal courts. Congress reserves the power to resolve serious disputes over who won a particular state, but has attempted since the 1887 passage of the Electoral Count Act to provide clear rules of the road so that such disputes are resolved well before they reach Congress.

 

This system held up under enormous stress created by Donald Trump’s challenge in 2020. Its success in surviving that test cautions against radical change. But 2020 revealed ambiguities and vulnerabilities that could be reduced by prudent reform, in order to prevent a repeat of January 6. We have previously urged Republicans in Congress to support such reforms.

 

Now, a proposed bipartisan bill, the Electoral Count Reform Act, is on the table. With nine Senate Republican co-sponsors and the support of key Democratic moderates, the ECRA stands a serious chance of passage and has apparently sidelined a more ambitious bill being developed by Senator Amy Klobuchar. The ECRA is not perfect, and it could use some improvements to its language, but it deserves Republican support.

 

First, the ECRA effectively adopts James Baker’s mantra from 2000 as federal law: States cannot change the rules after Election Day. Pursuant to Congress’s Article II power to “determine the Time of chusing the Electors,” it provides that electors “shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” This would explicitly bar state legislatures from overriding an Election Day popular vote by meeting after Election Day to appoint their own electors. It would also strengthen the case against judges writing creative new rules after an election.

 

The Election Day rules also narrow the circumstances in which states can declare that no candidate was chosen on Election Day, limiting this to “extraordinary and catastrophic events” defined by prior state law (such as the New York City mayoral primary scheduled for September 11, 2001, when it was impossible to finish voting and a revote had to be held).

 

Second, the ECRA tightens the requirements for state governors to provide a single, conclusive certification of state election results and provides expedited court proceedings to ensure that litigation is concluded in time for the governor to meet the certification deadline (an issue in Florida in 2000 and a source of some complaints in 2020). This reduces the running room for other state officials to file competing slates of electors with any patina of legitimacy.

 

Third, the ECRA clarifies the stance properly taken by Mike Pence in January 2021: The vice president’s role in presiding over the joint session and counting the electoral votes is “limited to performing solely ministerial duties,” with “no power to determine, accept, reject, or otherwise adjudicate or resolve disputes” over the electors. The framers of the Twelfth Amendment, adopted when Aaron Burr was vice president, never meant to lodge sweeping power in the sole hands of the vice president. Kamala Harris should breathe easy that this would prevent her from facing the same trial in 2025 as Pence, and the rest of the country should be relieved that she will not be tempted to exercise any such power.

 

Fourth, the ECRA requires a fifth of each house of Congress — currently 87 members of the House and 20 senators — to consent before a vote may be held on a challenge to electors. That threshold would have prevented challenges in 2005 and 2021 from coming to a vote. Current law allows just a single member of each chamber before an objection is heard. The ECRA does not raise the threshold for throwing out a state’s certified electors beyond a simple majority of both houses, because of concerns over whether Congress could legally bind a future Congress that was determined to do so by majority vote.

 

The ECRA states that “the only grounds for objections” are that electors were not lawfully certified, or that “the vote of one or more electors has not been regularly given.” In light of the mischief created by efforts to read the phrase “regularly given” to include any challenge to the regularity of the underlying election, we would prefer to see a definition of this term made explicit, but the new language at least does no further harm.

 

Finally, the ECRA includes a separate section to clarify the presidential transition process following a disputed election. There are also companion bills pending to expedite the delivery of mailed ballots and strengthen criminal penalties for voter intimidation or altering or destroying election records. These are more modest and less urgent proposals, but they, too, deserve support.

 

The political reality is that there is just a narrow window in which to get this done. Enacting electoral-count reform will only get more difficult as the next presidential election approaches. Democrats, including President Biden, have dragged their feet on ECA reform until they could convince their voting base that no broader voting or elections bills had the votes to pass. House Republicans have been less receptive to reform, so the chances of bipartisan legislation may dim in 2023. Nor should the Senate wait for a lame-duck session, when there might be disputes ongoing as to the outcomes of some midterm races. Avoiding serious election disputes, and promoting confidence in their swift and sure resolution, should not be a partisan issue. The time to fix the gaps in the roof is now, before the rains come again.

A Promising New Electoral Count Act Reform Proposal

By Yuval Levin

Thursday, July 21, 2022

 

A couple of weeks ago, I noted around here that time was short for the effort to reform the Electoral Count Act, and that getting that effort moving would require a concrete proposal from the bipartisan group of senators that has been working on the issue for months. On Wednesday, that group produced just such a proposal, and it strikes me as constructive, balanced, and very promising.

 

The proposal takes the form of two bills. The first is sponsored by nine Republican senators (Susan Collins, Shelley Moore Capito, Lindsey Graham, Lisa Murkowski, Rob Portman, Mitt Romney, Ben Sasse, Thom Tillis, and Todd Young) and seven Democratic senators (Joe Manchin, Ben Cardin, Chris Coons, Chris Murphy, Jeanne Shaheen, Kyrsten Sinema, and Mark Warner) and is focused on the Electoral Count Act itself.

 

This bill clarifies that states must appoint presidential electors in accordance with the laws they each pass before election day and does away with the dangerously vague concept of a “failed election” in the original ECA. It requires that the governor of each state (or else another particular official specifically assigned this role by state law) be the person to certify the state’s slate of electors, to avoid the possibility of different officials sending different slates to Congress. It clarifies that the vice president’s role in counting electoral votes in Congress is purely ministerial and does not involve any sole decision-making authority. It raises the threshold for raising objections to a state’s electoral votes in Congress from one member of each house to one-fifth of the members of each house and narrows and clarifies the grounds for filing objections. And it allows for expedited federal judicial review of any challenges raised by a presidential candidate under already existing federal law to a state’s certification of its elections, but does not create any new right of action in federal court regarding state officials’ enforcement of state laws.

 

This is a very good set of reforms. The bulk of them are directed to avoiding a repeat of the sorts of problems we saw in 2020 — a situation in which the states all did their jobs but members of Congress, at the behest of the defeated incumbent president, moved to sow doubt about the outcome by capitalizing on the vagueness and looseness of the ECA. Because the bad actors in that case were in Congress, there is a fair amount of room for Congress to address the problems revealed in the process. Most of the provisions of the ECA function in effect as a set of House and Senate rules, and indeed are adopted as such by both houses every four years, and so revising them is well within the purview of the Congress.

 

Concerns about the potential for misbehavior in the states — driven by the fact that some people who insist the last election was stolen are now running for positions with authority over election administration in a number of states — are harder to address through federal law, and this proposed legislation accepts that reality. It would take some limited actions that are clearly within Congress’s power, like assigning the job of certifying electors to the governor in the absence of a clear state law assigning that power to someone else. This could help reduce the opportunities for misbehavior by state officials (unless, of course, the governor is the person who misbehaves), and could also make it easier for state and federal courts to quickly resolve uncertainties and disputes in the wake of an election.

 

Some Democrats wanted to go further, and give the federal courts more jurisdiction over the ways in which state officials enforce state election laws. This was a disastrously misguided idea, and it is very good that this proposal avoids any such path. This is a significant success for a number of Republicans who fought hard against that approach — particularly Ben Sasse and Mitt Romney. And it is the reason why I think this bill could get enough Republican votes to pass the Senate. The restraint shown in this proposal suggests this bipartisan group really wants to get these reforms enacted.

 

The second bill, sponsored by most of the same senators as the first (with the exception of Republican senators Capito, Young, Sasse, and Graham) takes up some issues beyond the scope of the Electoral Count Act. It would increase the penalties for threatening election officials, improve the postal service’s procedures for handling mail-in ballots where those are allowed under state law, reauthorize the Election Assistance Commission, and increase the penalties for tampering with election records. These are modest reforms directed to modest problems, and the result is a bill that doesn’t do anything particularly important. If it’s necessary to get more Democrats to accept the restrained approach to ECA reform in the first bill, then I see no problem with it, and certainly some of what it proposes is worthwhile.

 

While these proposed reforms have come from the sort of bipartisan “gang” that has produced legislation on infrastructure and guns in this Congress, they are not going to circumvent the committee system in the way that those earlier efforts did. Rather, they are going to be referred to the Senate Rules Committee, which has jurisdiction over the ECA. The committee will hold a hearing, and will see if it can vote this proposal out and get it considered on the floor. This is surely in part to show some respect for Senator Amy Klobuchar, who chairs the Rules Committee, and who had been working with other Democrats on a separate approach to ECA reform. That effort will hopefully be put aside now for the sake of this one — or at least we should hope that it is. Klobuchar’s more ambitious approach was never likely to gain much Republican support, and this new proposal makes it even less likely that it could. If she wants to see some meaningful reforms of the law in this Congress, she will almost certainly need to let her committee take up the Collins-Manchin approach, more or less as it stands.

 

As proposed, the bipartisan ECA-reform bill has nine Republican sponsors, and so one less Republican supporter than would be necessary to overcome a filibuster (if it has the support of all the Senate Democrats). I gather from Republican leadership staffers, however, that Mitch McConnell is positively disposed toward both bills, and that if they make it through committee without significant changes, they should be able to get the votes they need.

 

It remains to be seen if that’s true, and whether Democrats in both houses will be satisfied with an approach to election reform that does not nationalize election administration or create new paths to federal judicial intervention in state election-law enforcement. But this is a good proposal, with a real chance of becoming law, and that is very good to see.

The System Worked

By Kevin D. Williamson

Tuesday, December 21, 2021

 

The Left loves “the masses” — at least, in theory. As a matter of historical fact, leftist regimes around the world spent most of the 20th century putting “the masses” into camps or intentionally starving them to death or, from time to time, eating them (“The incidents reported from Guangxi were apparently the most extensive episodes of cannibalism in the world in the last century or more”) to make a political point, and they have not done a hell of a lot better in the 21st century.

 

(“Te Occidere Possunt Sed Te Edere Non Possunt Nefas Est.” Nobody told the Red Guards.)

 

But there are no “masses.”

 

Not in the United States, anyway. The American people are not an undifferentiated blob of interchangeable individuals or interchangeable communities. Time, mass media, and mobility have ensured that the states are not as different today as they were when the Constitution was drafted, but life in rural West Virginia really is quite different from life on the Upper West Side or life in Echo Park or life in Bountiful, Utah. I am not sure that there are “masses” in Mexico, India, or China, either, however much politicians of a certain demagogic sort may like to appeal to the masses and their grievances.

 

There is genuine diversity in American life, and the splendid array of American communities and their particular interests matter, irrespective of whether 50 percent plus 1 of the total American voting population says otherwise. Everybody understands this when it is his own interest on the line, and everybody pretends not to understand this when it is some rivalrous interest in question. “Black Lives Matter” is a meaningful statement because black Americans have particular interests, particular experiences, and particular histories all their own; whatever the misdeeds of the organization calling itself Black Lives Matter, the sentiment itself is no more exclusionary than the idea that we should maintain such organizations as the League of Women Voters, the Texas Asian Republican Club, the Fellowship of Christian Athletes, or Jews for the Preservation of Firearms Ownership.

 

Our law recognizes these particularities in many different ways, some prudent and some less so. We have civil-rights laws that were intended mainly to help African Americans secure their basic rights and interests in practical ways that probably would have been impossible without federal intervention; we maintain a contingency plan for conscripting men into military service but not women; farmers receive tax exemptions not available to other businesses; churches receive exemptions from certain employment laws; we offer many different kinds of benefits and subsidies to small businesses that are denied to large ones. We have both urban-development and rural-development programs in government because these communities do not have identical interests or identical needs.

 

Protection for this diversity is written into our Constitution, and it informs the fundamental shape and organization of the federal government. No majority, no matter how large, gets to tell you what to teach in your church or what to publish in your newspaper. No majority gets to use the law to single you out because you are black or an immigrant. Our system is by no means perfect: Well-intentioned civil-rights practices are why we now have men competing in women’s college sports, for example, and equally well-intentioned accommodations such as bilingual-education mandates have blunted valuable spurs to immigrant assimilation. (Diversity is not the only value.) Passing civil-rights laws has not as a practical matter solved the problems those laws were meant to address. God knows we have problems. But the American approach has proved extraordinarily resilient, strong and flexible at the same time.

 

The United States and Switzerland — the world’s oldest democracy and the world’s second-oldest democracy, respectively — have very different governments and very different political cultures, but they have one important thing in common: federalism. Switzerland’s “double majority” system requires that big social changes move forward only when there is substantial consensus, as indicated by winning the votes of a majority of the people as a whole and a majority of the votes in a majority of the cantons. The U.S. Electoral College works on the same principle: To be elected president, a candidate needs to win not simply a majority of the entire voting population but a majority of the votes in a certain number of states, weighted by population. This means not only that a handful of big states cannot simply sweep aside the votes of the smaller states but also that a candidate who does not appeal to a sufficient diversity of constituencies in the various states will not win in some circumstances even when he secures a majority of the total vote. American federalism and Swiss federalism even produce many of the same complaints, e.g., that the system amplifies the power of people in less densely populated rural areas, who tend to be conservative, at the expense of people in the big cities, who tend to be more progressive.

 

(Similar procedures and institutions exist on a more limited scale in a few other countries, such as Germany and Australia.)

 

Which brings us to Joe Manchin and the grievously misnamed Build Back Better bill.

 

As my friend Charles C. W. Cooke points out, Senator Bernie Sanders’s constant whining that “one senator” or two should not be able to put a halt to the president’s legislative agenda is pure illiteracy, beginning with the fact that it is not one senator blocking Build Back Better — it is 51 senators, at least. Cooke writes:

 

In a 50/50 Senate, the “problem” that “one senator is able to hold up what the president wants!” can only be “fixed” by (a) passing bills with a minority of senators, (b) allowing only majority party to vote, (c) forcing senators to vote with their party — all of which are crazy.

 

As I am sure Charlie and I will have a chance to discuss on our Mad Dogs & Englishmen podcast, what Senator Sanders is up to here is not really constitutional analysis — it is base demagoguery. (And a bit of “mood affiliation,” which I will get to in a minute.) But Senator Sanders does have a point, albeit a point he does not quite understand: The Senate is, in an important way, not only undemocratic but antidemocratic. That is how it is meant to be — and we would be better off, both as a country and as a people trying to practice an intelligent form of liberal democracy, if the Senate were even more undemocratic and antidemocratic than it is.

 

Build Back Better would be a bad piece of legislation in the best of times. But these are not the best of times: We are a country that is facing a genuine inflation crisis — not of Argentine or Zimbabwean proportions, at least not yet, but a crisis nonetheless — and a country that is dancing on the precipice of a sovereign-debt crisis, as well. This isn’t Chicken Little stuff, and I don’t want you to think that the country is going to look like The Walking Dead the day after tomorrow. But here are the facts: Inflation is at a 40-year high, and interest payments on the debt already take up 15 percent of all federal tax revenues. Interest rates are very low by historic standards, and the main way you work to control inflation is by raising them. And, ultimately, interest rates are not under government control — they are under the control of investors in the debt market, who decide what rates they will lend at and what rates they won’t. Interest rates could easily be three to four times what they are today in a few years, meaning that interest payments could consume somewhere between half and two-thirds of all federal tax revenue, necessitating a radical and immediate restructuring of the federal government and its finances — that is the risk we are faced with.

 

A gigantic spending binge such as Build Back Better would tend to make both inflation and the debt situation worse. It would raise inflation by flooding the economy with more money (mostly put indirectly into the pockets of well-connected political constituencies), and it would worsen the debt because much of that money would be borrowed. The rosy projection is that BBB would add hundreds of billions of dollars to the debt, and the more realistic projections have it in the trillions.

 

Senator Manchin has been inundated with claims, many of them suspect, that BBB is overwhelmingly popular with the American people. It may be. But even if it were, it would still be a terrible piece of legislation — and, sometimes, political leaders are called upon to lead rather than act as their voters’ factota. And however BBB stands with the public in general, it is not especially popular with the people of West Virginia, and it is to them — not “the masses” — that Senator Manchin is ultimately accountable.

 

One way of thinking about the apparent failure of BBB is that it could not pass the double-majority test. The proposal had substantial general support but also inspired many pockets of urgent and persistent opposition from communities who were not willing to have this imposed on them by a group of senators who are, as Charlie notes, a minority, even if they are a majority of the majority party. There simply is not the wide and deep consensus that should be present when advancing wide-ranging legislation of this kind. The president, of course, has very little role in the crafting of legislation and no vote in Congress — but he does have the ability, and at times the obligation, to work toward building the consensus necessary for major reforms and important pieces of legislation. President Biden can criticize Fox News and talk radio and implacable Republicans, and he wouldn’t be wrong about any of that, but he would be admitting that he simply isn’t an effective enough leader to show himself more than the equal of Tucker Carlson or Madison Cawthorn. I am all for a smaller presidency, but a smaller president should have smaller ambitions — he should make some effort to accommodate the reality of his situation.

 

President Biden and other Democrats are always looking wistfully for the second coming of Franklin Roosevelt. But what Democrats really need is someone more along the lines of Lyndon Johnson, who was gross and venal but who had a real gift for plumbing the outer limits of what was politically possible and then getting Congress to meet him there. (That he sometimes did this in the service of unwise legislation does not in any way diminish the gift.) And President Johnson did bigger things than BBB. Much bigger.

 

If your whole political agenda goes off the rails because you cannot bring around one mulish senator from your own party, then perhaps you need to rethink your political agenda. You might even think about how you might win the support of six or seven senators from the other party. Don’t tell me they can’t be had — Ted Cruz came around to champion the cause of a guy who called his wife ugly and suggested that his father had been involved in assassinating President Kennedy. Lindsey Graham is . . . Lindsey Graham. These aren’t exactly Doric columns of unmovable moral commitment we’re talking about here.

 

These are politicians, and the game is politics. If you can’t politics your way into getting something done in this Senate, that’s on you, Democrats — not the Constitution.

 

Words about Words

Ten years ago, the economist and polymath Tyler Cowen described the “fallacy of mood affiliation.” Mood affiliation distorts our reasoning by subordinating facts and logic to moods, sometimes vague, that impose a kind of psychological meta-narrative on our understanding of events. An example from Cowen: “People who see a lot of net environmental progress (air and water are cleaner, for instance) and thus dismiss or downgrade well-grounded accounts of particular environmental problems. There’s simply an urgent feeling that any ‘pessimistic’ view needs to be countered.” Another, more familiar example: “People who see raising or lowering the relative status of Republicans (or some other group) as the main purpose of analysis, and thus who judge the dispassionate analysis of others, or for that matter the partisan analysis of others, by this standard. There’s simply an urgent feeling that any positive or optimistic or deserving view of the Republicans needs to be countered.” Etc. “In the blogosphere,” Cowen writes, “the fallacy of mood affiliation is common.”

 

What has changed since Cowen first wrote this is that writers for major publications and, increasingly, political figures now simply lead with the mood. I think this is an example of the prose style, and the cognitive style, of social media infiltrating print journalism, political rhetoric, and the rest of discursive life.

 

An example: Charles M. Blow writes in the New York Times: “I’m Furious at the Unvaccinated.” That’s the headline. In the column, Blow recounts his failed effort to nag a friend of his into getting vaccinated. “I am disappointed, and I am angry, not just with my friend but with all the people who are choosing not to get vaccinated.”

 

What I take from this is that Charles Blow and the people who write his headlines believe that Charles Blow is a very big deal, indeed, such that his internal emotional situation is the stuff of New York Times headlines. “Journalist Is Angry and Disappointed.” Well. I suppose there are insurance agents and farmers and elderly men in rocking chairs who are angry and disappointed about all sorts of things. But nobody would think that makes for headlines.

 

Is there really no more to the horrible Omicron news than how Charles Blow feels about it? I think there is. But journalists increasingly act like they are running for office, asking their constituents to resonate with their moods and prejudices. It is a ritual of hating together. Hence the headline.