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A Pause on Rights: Canada’s Constitutional Clause

photograph of interior of Canada's House of Commons

Imagine a world where overturning Citizens United could be done with a simple act of Congress. According to polls, 88% of Americans hailing from both sides of the aisle would back a constitutional amendment to overturn the decision. But why does it take a constitutional amendment? Because the U.S. Supreme Court ruled that political donations constitute free speech, and because corporations have a constitutionally protected right to free speech, including unlimited donations. Since changing the U.S. Constitution is exceedingly difficult, this is not likely. But what if Congress could simply override the Supreme Court and say that there are limits to such forms of free speech. Canada has such a mechanism in its constitution, and it is starting to raise serious ethical concerns.

All rights in Canada enshrined in the Charter of Rights and Freedoms are already subject to “reasonable limits,” an ambiguous phrase whose meaning must often be determined by courts. However, under section 33 of the Charter, the federal Parliament of Canada or a provincial legislature can declare that a piece of legislation will operate notwithstanding the Charter. So, if a court rules that a law violates the Charter, a legislature with a simple majority can say that the law will remain in force for up to five years before the legislature must revisit the question and potentially renew the exception. In essence, it can put individual rights on pause for half a decade at a time. The clause doesn’t apply to democratic rights or mobility rights, but legal rights concerning detention, trials, punishment, and fundamental freedoms like freedom of association, peaceful assembly, and free speech are all fair game.

The clause has been called “uniquely Canadian,” and would no doubt be controversial in the United States. It could be used to limit political donations or enact stronger gun control legislation, but it would also be easy to limit protest or engage in practices that might be considered cruel and unusual. Created as part of a constitutional bargain to appease the provinces, the clause has almost never been used and has always been controversial. The Charter is highly prized by Canadians, and so the idea of overriding it is typically politically perilous. Nevertheless, in the last three years there have been about as many threats to use it as there were during the first eighteen years of its existence or the eighteen years after that.

The latest controversy involves Premier Doug Ford of Ontario who has threatened to invoke the clause in response to the courts striking down election finance legislation that the Ford government had passed, limiting third-party advertising for a period of one full year from an election (prior to this, the law restricted spending six months before the election). Typically, these third parties are supported by public sector unions which tend not to support Ontario Conservatives, so the move to use the clause in this case, described as using a “sledgehammer on a gnat,” appears even more controversial as it seems to politically benefit Ford. (Ford had previously threatened to use the clause in 2018 after his government unilaterally changed election laws in Toronto during an election.)

In other provinces since 2018, the threat of invoking or actually invoking the clause has been a response to issues relating to public funding for Catholic schools, legislation requiring vaccination, the use of religious symbols in the civil service, and, recently, protecting the French language in Quebec at the expense of minorities in the province. This increasing willingness to use the clause, and use it more frivolously to pre-empt a court decision before it is even made, is a cause for concern. As Justin Trudeau’s former secretary puts it, “what’s at stake here is whether the ultimate arbiter of your Charter of Rights and Freedoms is the Supreme Court of Canada or your provincial premier.” But “don’t democratic societies put minority rights into inviolate foundational documents precisely because they’re politically tempting to violate?”

Indeed, Canada has recently seen exactly what can happen when the rights of minorities are ignored for the sake of a political majority, and there are plenty of other historical examples in Canada where rights have been violated. So obviously, there are ethical concerns about the clause. So why keep it? Originally, it was thought that the clause would only be used in non-controversial circumstances because it would be so unpopular to use it otherwise. However, for those who support the clause, there are two important factors to consider. The first is that the clause is considered to be an important check on judicial review.

While the Canadian Supreme Court does not have the same partisan tinge that it’s U.S. counterpart has, in the Canadian legal framework, Parliament is supposed to be supreme, meaning that what it says goes rather than the rulings of unelected judges. Some who support the clause argue that it is ultimately one of the reasons the court is less partisan; judges will be less activist and partisan if they know they can be so easily overridden. Indeed, with such a clause in the U.S., there might be less concern about when certain justices retire. Another reason why the clause is supported goes back to part of the reason it was created: to allow provinces to opt out for the sake of balancing collective rights.

Quebec has used the clause the most, typically defending its usage by claiming it is needed to protect the French language. Long concerned about declining usage of French and eventually becoming assimilated into English Canada, Quebec’s defenders seek to protect collective French community rights over individual rights to secure what Quebecers consider to be a distinct society in North America. Thus, they claim that the clause serves a vital moral good.

On the other hand, critics might charge that this simply amounts to securing the rights of the majority over the minority by bypassing individual rights. Indeed, imagine any state simply choosing to ignore Roe v. Wade simply because it would be a popular move to do so. To that extent, the clause has raised new issues of moral concern as provinces now seem more willing to use it, even for things other than “non-controversial issues.” The concern now is that the more it is used, the more it will be overused for the sake of convenience and political gain rather than as a last resort.

The moral issue for Canadians reconsidering the clause after almost forty years of existence is: How should collective and individual rights be balanced relative to each other? And how might these calculations change when a government threatens to use it? Experts believe that a move like Doug Ford’s will be unpopular because it carries a lot of political baggage. On the other hand, Canadians are famously apathetic about politics and rarely turf one-term governments. It remains to be seen whether Canadians will be keen to defend the Charter from clause users come election time. I’d be skeptical that Ford’s use of the clause becomes a major election issue a year from now. But the moral danger is that a constitutional tool capable of doing something so potentially harmful slowly shifts from a taboo to a norm fueled by populism. The moral task for the public is to re-evaluate how comfortable we are with this and under what conditions we consider the clause’s use acceptable.

The Value of Secrecy in Congress

photograph of C-SPAN floor vote TV coverage

During both of the most recent impeachments, an old argument resurfaced. Afraid of retribution, many spoke out to advocate a way Republican members of Congress could get rid of Trump and keep their own seats. They suggested that the impeachment vote in the House and the Senate should be done in secret. Republican voters would know some Republicans voted to convict, but the blame would be diluted, spread across all 50 or so Republican senators. And so each Republican senator would individually be unlikely to lose his or her seat.

But this raises a question: if it would be good to convict Trump secretly, why not make the votes on all sorts of controversial issues secret? The people would know what laws were passed of course, but no one would be allowed to see committee meetings. No congressional sessions or votes would be broadcast on TV. You would vote in your representatives and then for two, four, or six years, you would simply trust that they voted in the way that was best. Members of Congress could pass legislation that might be unpopular to their constituency, but important for the nation at large. And neither ordinary citizens nor lobbyists could influence the legislative process after election day.

Many, however, are horrified by this idea. Making acts of Congress secret would be akin to government by aristocracy, rule by the elites, not democracy. Transparency is vital because it allows citizens to accurately judge whether their elected representatives are actually representing them instead of simply voting their own interests.

Let’s consider the arguments on both sides here and see if we can develop a better understanding of the issue. What are the benefits of congressional secrecy? And, are the costs to democracy too severe?

The first reason why one might think congressional votes should be secret is because this secrecy would allow Congress to stop acting only along party lines. Congress is extremely partisan nowadays and this hasn’t always been the case. Furthermore, this unwillingness to cross the aisle leads to difficulties in Congress achieving popular political ends. For example, nearly 60 percent of Americans supported Trump being convicted and removed from office after the second impeachment trial. Even more Americans, including 64 percent of Republicans, support stimulus checks. But, no Republican members of Congress voted for Biden’s stimulus check, despite voting for Trump’s. And finally, a majority of Republicans support increasing the minimum wage, but Republican members of Congress vote against it when the issue is raised by Democrats. Voting against political opponents seems to be more important to members of Congress than passing popular legislation.

The fact of the matter is that Congress isn’t beholden to your average voter. Nor even the average voter from their party. Members of Congress are beholden to the partisans of their party because of the primary system. According to a study from the Social Science Research Council, primary voters tend to prefer politically extreme candidates. And if candidates can’t make it past the primaries, it doesn’t matter how popular they would be in the general election. (Some have suggested primaries are responsible for Trump’s nomination.) In any case, if Congressional votes were more often secret, congresspeople could give lip service to extremism in the primaries while looking to what’s best for the country when they actually vote. Those extreme partisans wouldn’t know who betrayed them. Thus, legislation that is broadly popular, but not popular among extreme partisans, could be passed and perhaps we’d be better off.

But, partisans and primaries aren’t the only reason Congress doesn’t pass popular legislation. Another problem congressional secrecy, especially in committee meetings, could solve is the influence of lobbyists and donors. As I have written elsewhere, money in politics is a seriously corrupting influence. Lobbyists and donors frequently control the legislative agenda. But, again, this hasn’t always been the case. The number of lobbyists skyrocketed in the 1970s with the passage of so-called “Sunshine Laws” meant to improve government transparency. Some of these are good: Freedom of Information Act requests allow the people to have access to a great deal of information about the operation of government that would be otherwise hidden from them. But, they also allowed lobbyists to flow in from the lobby through the previously closed doors of committee meetings. As is argued by the Congressional Research Institute (a think tank, not part of Congress), these laws “enormously enhanced the ability of ‘outside’ lobbyists and powerful entities to influence the legislative process,” and so they claim “all legislative transparency overwhelmingly benefits special interests and the powerful.”

Think of it this way: before, lobbyists and donors could monitor how congressional votes shook out. If particular members of Congress voted how the donors wanted, they would get more campaign donations, and if not, they wouldn’t. This influence has always been around. But since the passage of the Sunshine Laws, lobbyists can monitor the entire legislative process: they can write the legislation, follow along with congressional committee meetings to make sure no revisions are made they don’t like, and display their approval or disapproval to members of Congress throughout the process. Of course, ordinary citizens can do this too, but they tend not to have the resources to lobby as powerfully as massive corporations or billionaires. If the relevant “Sunshine Laws” were reversed, many of these problems would go away, and if congressional votes were made secret too, lobbying would become a very bad investment. Donors could spend money on lobbying and campaign donations and hope that the legislator feels pressured by it, but they would never be sure if it worked. Thus, the influence of money in politics would be diminished.

However, there remains an enormous counter-argument to making the acts of Congress secret. I have been making a very utilitarian case for secrecy. It would achieve better results for the American people. But that may not be the only thing that matters. One might argue that the ends aren’t the only things that matter; the means do too. Making the acts of Congress secret would allow lawmakers to ignore the interests of the people in favor of their own opinions and values. It would allow members of Congress to lie to the people about how they voted with little to no consequence. Perhaps transparency should be considered a virtue such that if maintaining transparency means lobbyists and donors get their way, so be it.

One might say getting something they consider important, like removing Trump from office, or getting stimulus to the people, or raising the minimum wage, isn’t worth the cost of allowing Congress to be unbeholden to voters. Is a democracy led by representatives who can ignore the voters really a democracy at all? Many political philosophers, like John Locke and Jean-Jacques Rousseau, have argued that government derives its power from the consent of the governed. One might hold that doing what the people want, even if it’s wrong, is more important than doing right, if it means ignoring the will of the people. A government that doesn’t act for the people may not be much of a government at all. And why should we think representatives know better than the population at large? They are only human. And more than that they are an unrepresentative sample of the country, being more white, more male, older, and wealthier than the American population.Thus, on this view, making the acts of Congress secret is untenable: it is valid only according to a consequentialist framework and anyone who disagrees with such a framework will abhor the fact that legislators will be incentivized toward dishonesty and away from democratic principles. As Aristotle wrote in the Nicomachean Ethics, to act “at the right times, with reference to the right objects, towards the right people, with the right motive, and in the right way, is what is both intermediate and best, and this is characteristic of virtue,” nothing more, nothing less. This is a far higher standard than simply weighing the consequences and one we should strive for.

Making the acts of Congress secret would be an enormous change and not one to be taken lightly. As I have shown, your thoughts on this issue can vary significantly based on which moral framework you follow. The case, at least in the short term, is clear for the consequentialist. But for the virtue ethicist or deontologist, things are far murkier. Answering this question, as with many moral questions requires us to consider which of our values cannot be crossed? Which do you value more, if one has to be sacrificed: transparency and democracy, or the people’s welfare? In any case, something needs to be changed so that the problems of political partisanship and the influence of money in politics are resolved. Making the acts of Congress may be one solution but there are surely others. Perhaps we should reform the primary system. Perhaps we should overturn Citizens United to diminish the power of donors and lobbyists. The number of ethical solutions is only limited by our creativity, something which must be trained by continual practice and reflection.

Accountability, Negligence, and Bad Faith

photograph looking up at US Capitol Building

The wheels of justice are turning. As I write this, there are a number of movements afoot — from D.C. police continuing to arrest agitators and insurrectionists on possible sedition charges to Representative Ilhan Omar drawing up articles of impeachment — designed to separate the guilty from the guiltier and assign blame in appropriate proportions. And there is a great deal of blame to go around. Starting with the president’s inciting words just blocks away to the mob he steered to breach the Capitol intending to effect their political will, these are culpable parties. But we might consider others. Those members of Congress, like Senators Josh Hawley and Ted Cruz, willing to lend the considerable credibility of their office to unsupported (deunked and repeatedly dismissed) accusations of a stolen election, surely share some portion of the blame. To hold these parties to account, Representative Cori Bush is introducing legislation to investigate and potentially remove those members of Congress responsible for “inciting this domestic terror attack.” In the meantime, the calls for Senators Cruz and Hawley to resign are only growing louder.

But what are these lawmakers really guilty of? On what grounds could these public, elected officials possibly be threatened with removal from office? To hear them tell it, they were merely responding to the concerns of their constituents who remain convinced that the election was stolen, robbing them of their God-given right to be self-governing. They are then not enemies of democracy, but its last true defenders.

Nevermind that people’s belief in election malfeasance is not evidence of election malfeasance (especially when that belief is the product of misinformation disseminated by the very same “defenders”), this explanation fails to appreciate the design of representative democracy. Ours is not a direct democracy; citizens are not called upon to deliver their own preferences on each individual question of policy. Instead, we elect public servants that might better represent our collective interests than any one individual might herself. The hope is that this one representative might be better positioned than the average citizen to engage in the business of governing. Rather than pursuing any and all of their constituents’ interests come what may, these lawmakers are tasked with balancing these competing interests against fealty to the republic, the Constitution, and the rule of law. In the end, these officials are people who can, and should, know better. As Senator Mitt Romney argued Wednesday, “The best way we can show respect for the voters who are upset is by telling them the truth.” That there is no evidence that the results of the presidential election are in error, and that Joe Biden won the election. “That is the burden, and the duty, of leadership.”

Perhaps, then, these legislators were merely negligent, inadequately discharging their duties of office and ultimately unable to anticipate the outcome of things beyond their control. (Who could have predicted that paying lip service to various conspiracy theories would be enough to give them the weight of reality?) And so when words finally became deeds, the violence displayed at the Capitol was enough to make several Congressmembers reconsider their position. It was fine to continue to throw sand in the gears as a political statement, but now faced with such obvious and violent consequences (as well as the attending political blowback) even Senator Lindsey Graham was willing to say “enough is enough.

But negligence is a slippery thing to pin down; it rests on a contradiction: that one can simultaneously be instrumental yet removed, responsible but unaware. Many might agree that these lawmakers’ actions betray a failure to exercise due care. These senators and representatives underestimated risk, ignored unwanted or unintended consequences, and failed to appreciate the cultural, societal, and political moment. But establishing that these members of Congress acted negligently would require demonstrating that any other reasonable person placed in their shoes would have recognized the possible danger. (And “reasonableness” has proven notoriously difficult to define.)

For these reasons, demonstrating negligence would seem a tall order, but this charge also doesn’t quite fit the deed. The true criticism of these lawmakers’ actions has to do with intention, not merely the consequence. Many of these public officials not only failed to take due care in discharging their duties of office and serving the public’s interests, but were also acting in bad faith when doing so. Theirs was not merely a dereliction of duty, but a failure borne of dishonest dealings and duplicitous intent. The move to object to the Electoral College certification, for example, was never intended to succeed. Even Senate Majority Leader Mitch McConnell was willing to condemn the cowardice and self-serving aggrandizement involved in making a “harmless protest gesture while relying on others to do the right thing.” Similarly, the vote led Senator Mitt Romney to question whether these politicians might “weigh [their] own political fortunes more heavily than [they] weigh the strength of our republic, the strength of our democracy, and the cause of freedom.”

In the end, the use made of folks’ willingness to believe — to believe in a deep-state plot and broad-daylight power grab — all for private political gain, pushes us past a simple charge of negligence. The game these politicians were playing undermines any claim to be caught unawares. The fault lies with choice, not ignorance. A calculated gamble was made — to try to gain political points, retain voter support, and fill the re-election coffers by continuing to cast doubt on the election results and build on some constituents’ wildest hopes. The problem isn’t merely with the outcome, it’s with the willingness to trust that private gain outweighs public cost. But as Senator Romney asks, “What’s the weight of personal acclaim compared to the weight of conscience?”

As it stands, there are far too many guilty parties, and not enough blame to go around.

Considered Position: Flawed Democracy – Minority Rights

image of red and blue cells making a map of the US

This piece is part of a Considered Position series that reflects on the United States’ claim to being a “flawed democracy.” To see the earlier segments, start here.

Minority Rights

Another area where people often disagree about the nature of democracy is when it comes to minority rights. The Founding Fathers feared mob rule, the “tyranny of the majority,” almost as much as they did actual tyranny by a single despot or monarch. The Founding Fathers were classically educated; many learned Latin and Greek and were inspired by the attitudes of Ancient Greece and Rome. Both cultures used democracy but held cautious attitudes toward it. Plato, for one, heavily critiqued democracy. And the Roman Republic was highly aristocratic. They had a bicameral legislature, one house of which was wholly composed of patricians, the upper class, and one of plebians, the lower class. This was the inspiration for the US system of a Senate elected by State governments and a House popularly elected. In both cases, the government was constructed to limit the potential of mob rule.

Today, the government is critiqued from both sides. On the one hand, there are a number of ways in which minority voices are oppressed in politics. On the other, many people worry that certain protections of political minorities give those minorities undue power. Once again, people agree that minority rights should be protected, but disagree about which minorities and for what reasons.

Before jumping into concrete cases, it will be helpful to consider the different uses of the word “minority” which might otherwise cause confusion. The word “minority” can be used in two senses. A “minority” group can be one that holds the minority of political power. Or it can be a group that represents a minority of the population. Sometimes a group is a minority in both senses, but not always. Women, for example, prior to the 19th Amendment, were in the majority (as they remain today) but had no political power. On the other hand, the ultra-rich compose a tiny minority of the population and yet retain, if not a majority of political power, at least a great deal more than they would have given their share of the population. In a proper democracy, these two definitions would be inseparable. If “one person, one vote” is the principle that governs the allotment of political power, they would have to be. But, as we will see, this is not the case in our democracy.

The Electoral College

With that being said, let us consider one of the most frequently debated institutions in American government, the Electoral College. First, we’ll need to consider what exactly it is, how it was meant to work, and how it has worked in practice. Only then can we consider its value as a political institution and whether we ought to keep it.

The Electoral College is the system by which the United States President is elected. It is also an actual group of people who cast votes for the President and Vice President. This group of people is composed of “electors.” Each state sends a number of electors equal to the number of Congressional representatives they have. This is the number of Senators (always two) plus the number of Representatives (anywhere from one in Alaska to 53 in California). And, of course, DC sends as many electors as does the least populous state, as mentioned before.

Now you may be familiar with the idea that we vote to elect the President. However, this doesn’t have to be the case, and in fact wasn’t the case in some states until the mid-nineteenth century. Most states until 1812 simply had their legislatures appoint electors. State governments have full discretion in determining what electors they send and unless required by state law (as was recently decided by the Supreme Court), electors can vote for whichever candidate they want. A state could legally require their electors to vote in accordance with a coin flip.

While this may sound silly, this system did have a purpose when it was created. Like much of the Constitution, the Electoral College was the result of compromise. People on one side wanted the president to be appointed by the legislature. People on the other side wanted the president to be elected by the people directly. The people who supported the appointment of the president believed that, due to the difficulty in communicating across the country, and so due to how little each voter would know about the candidates, it would be foolish to have the people directly elect the president. It made much more sense for them to elect locals, about whom they would know a great deal more, as representatives. Those elected representatives could then travel, meet the candidates, learn more about them, and vote on the behalf of their constituents.

This purpose was retained in the Electoral College. These electors were free to cast their votes however they wished as it was assumed they might be more familiar with the candidates than the people who had elected them. Nowadays, electors aren’t so free. There are 33 states which require electors to vote in accordance with the state’s popular vote. This is for good reason: people no longer lack access to information that only an elector might be privy to.

Like I said, this system had a purpose when it was created. And there was another purpose the Electoral College had when it was created that no longer holds much weight: the Electoral College increased the power of slave states relative to free ones. How? Well, the number of electors a state gets is based on the number of representatives it has. And that number is based on the population of the state. Except, it hasn’t always been that way. At the time, slaves were not considered people, but property. Slave-owning states worried that they would have diminished political power relative to the states with more free people. So they demanded slaves be counted as people only in determining the population of the state. This was a great hypocrisy and northerners refused. Ultimately, the three-fifths compromise was developed. A slave would count as three-fifths of a person for the purposes of calculating population. But of course, they would have zero-fifths of the rights or voting power of any free man. This compromise gave slave-holding states more power in the House and in determining the president. In fact, only one president of the first five was not a slave-holding Virginian.

So then, the Electoral College was founded to account for eighteenth-century difficulties in communicating across large distances and to prop up the institution of slavery. Given that we now have the internet and have abolished slavery (outside of prisons), why haven’t we gotten rid of it? Many people today advocate for the direct popular election of the president. And this change has a great deal of popular support.

The arguments for these are fairly simple: in a democracy, each person deserves an equal vote. Every official given power should be popularly supported. In several instances, the presidential candidate who won the election was not the one who won the Electoral College and thus the presidency. Most recently, Al Gore garnered 0.5 percent more of the popular vote than George Bush in 2000 and Hillary Clinton got 2.1 percent more than Donald Trump. In fact, it is possible to win the Electoral College with only 23 percent of the popular vote, which would be very undemocratic. This, proponents of abolishing the Electoral College say, is unjust. But, there are a number of decent arguments made in support of the Electoral College. It ought not to be dismissed out of hand. We’ll discuss two of these, one bad, and one better.

A common bad argument in favor of the Electoral College is that it protects us from tyranny. It is supposed to be the “last line of defense.” If the people elect a person utterly unfit for office, or a tyrant, the electors will be justified in voting for someone else. This has never happened. In fact, electors changing their votes have never changed an election’s outcome. And, again, many electors today are prohibited from changing their votes. And even if they were not so restricted, one would have to ask, who gets to be an elector? And why should we think that person knows better than us who should be president. Either electors are themselves elected, in which case their interests will likely align with those who would elect the tyrant, or otherwise they are appointed. And if they are appointed, we must ask again, by whom? Ultimately, either the election is wholly based on the popular will or it is not. And if it is not, then unelected people are deciding our government, a proposition wholly opposed to our national values.

A better argument for the Electoral College concerns minority rights. If you remember, by free population, many slave-holding states were smaller than their free counterparts. Thus, it is possible to say “the Electoral College was created to protect the interests of small states from being overridden by larger ones.” And this is a common argument in defense of the Electoral College. While it isn’t really true in the sense that, counting slaves as people, slave states were larger than free ones, we might still think there is some good reason to protect the interests of small states. Protecting small states’ interests is just a special case of the general principle that we ought to protect the interests of minorities. Here I mean groups with minorities of political power. For example, people who cannot walk are a tiny fraction of the population. It would, however, be unjust not to provide accommodations for people with disabilities. To protect the rights of this minority, Americans with Disabilities Act (1990) was enacted. People have no control over whether they have disabilities. And likewise people have little control over where they live — to leave home is to leave one’s family and to risk one’s employment. In any case, it seems obvious that your interests should not be ignored merely because of where you live.

So does the Electoral College protect minority rights? Are small states’ interests protected in a way that they wouldn’t be under a popular election of the president? In one sense they are: small states are less “ignorable” than they would be under a popular electoral system. This is because even the smallest state has at least three electoral votes. Those 3 votes are a greater share than the total (538) than their population would be compared to the total population. For example, Wyoming has a population of around 580,000, 0.17% of the overall population, but its 3 electoral votes comprise 0.56% of the total. Still, 0.56% isn’t much better than 0.17%. And, as it turns out, small states like Wyoming are totally ignored by politicians’ campaigns even now. Actually, most states, big and small, are totally ignored by politicians’ campaigns. Since 2008, 80 percent of campaign visits occurred in less than 20 percent of the states. The reason stems from something the Founders failed to consider when drafting the Constitution: partisan politics.

We often use the phrase “partisan politics” to refer to how polarized the political parties are, to the fact that members of the two parties share very little ideologically. But the Founders failed to consider something far more fundamental, the existence of political parties themselves. See, George Washington spent a great deal of his farewell address warning against the development of political parties, saying in particular:

“They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community.”

Unfortunately, parties, and in particular a two-party system, are a natural and even mathematical consequence of “winner-take-all” elections. This system of election is the one we use for all our Congressional elections and the one every state (except Maine and Nebraska) uses for allocating electoral votes in Presidential elections. To understand how a two party system and a winner-take-all system naturally go hand-in-hand, consider the following:

In the 1960s, not everyone was happy about desegregation. A significant number of people wanted strict segregation. Some were okay with looser segregation. And some wanted full desegregation. Suppose these three groups had 40 percent, 30 percent, and 30 percent support and each voted for a presidential candidate that supported their view. If they did so, then the strict segregationists would win and segregation would stay. But if those who wanted some desegregation convinced the ones who wanted total desegregation to vote for their candidate, then that candidate would win. The ones who wanted total desegregation wouldn’t have been completely happy but 60 percent of the people would have been at least somewhat happy when only 40 percent would have been happy had each group voted for their own candidate. And, we end up with only two real candidates being fielded. The same goes no matter how many groups there are; they will always make these sorts of compromises until there are two real parties.

“Okay,” you might ask, “but how does segregation relate back to the Electoral College and minority rights?” Well, as I said, electors are decided by winner-take-all elections. You get the same number of electoral votes if you convince 51 percent of a state’s population or 99 percent. There is no incentive to please everyone. Nonetheless, 51 percent can quickly turn to 49 percent. So Presidential candidates very frequently campaign where the margin of victory is small. These are called “swing states” and it is their interests that override the interests of all other states since they are the only ones pandered to by presidential candidates. Other states get little or more frequently no attention. California has the most electoral votes of any state, 55, and yet not a single post-convention campaign event has been held there by a presidential candidate since at least 2008. This minority of states dominates the majority of states.

The Electoral College also oppresses minority rights within each state. If there are two parties, with one getting 51 percent of the votes and the other getting 49, then the one getting 51 percent gets 100 percent of the electoral votes of that state. What this essentially means is that those 49 percent get no representation in deciding the president. The winning party does not have to compromise at all with the losing one. So really, in each state, large minorities of the population are having their interests overridden by the majorities.

Something important here to remember, though, is that these are problems with the Electoral College as it is. If the winner-take-all system were eliminated, there might be some legitimate defenses of the Electoral College. In fact there are a number of potential alternative voting systems. Under such a new system, small states would remain less ignorable than they would be under a popular vote system due to the Electoral College, politicians might consider their interests more closely due to the substantial political minorities in many states, and politicians might be more incentivized to moderate their positions so as to have wider appeal. As a bonus, third parties could obtain significant minorities of the electoral vote, encouraging politicians in the main parties to pay more attention to their interests (because, again the overall presidential election is a winner-take all system given there is only one president so a two-party system will still dominate).

One last point to consider is why people actually defend or oppose the Electoral College. Usually we think that people make decisions based on reasons. That is, they see reasons and then make decisions. But often people make decisions and then come up with reasons to justify their decision after the fact. Or, they are biased in judging reason by their initial preference. This is called motivated reasoning. The sorts of bad defenses of the Electoral College I have considered above seem to fall into this camp. From polls that have been conducted, the actual reason many people support the Electoral College seems much simpler: it seems to make their candidates win more.

Republicans, George Bush and Donald Trump, have won the last two times the Electoral College has disagreed with the popular vote. And after 2016 when Trump was elected, Republicans’ support for the Electoral College skyrocketed. At the same time, of course, Democratic opposition to it also greatly increased as the same poll shows. People, it seems, will preference their political “team” over their actual beliefs about democracy. Whether the Electoral College is more bane or blessing to democracy is an arguable point. But that argument should be one that precedes forming a view, not one that serves to justify it. You might ask yourself “Would I still support/oppose the Electoral College if it meant my party would lose more often, if it meant the policies I supported got enacted less frequently?” In answering this, you might come to understand whether you care more about rights and duties a certain decision respects or about the consequences that decision causes.

Gerrymandering

We have spent a great deal of time talking about presidential elections but much of the political power does not rest with the president. The legislature, Congress, is meant to serve as a check to the president’s power. Unfortunately, there are about as many problems with Congressional elections as there are with presidential elections. The most significant of these is probably gerrymandering. What we do about gerrymandering will be informed partially by how we think we can best protect minority rights. However, it will be equally important to consider whether we (and more importantly the politicians who represent us) value consequences favorable to us or respect for the rights of those besides ourselves more highly.

To discuss gerrymandering, we should first be clear on what gerrymandering is. Generally, states have more than one House Representative. And, since House Representatives are meant to represent the interests of local areas, each representative is elected from a Congressional district. Only people in that district get to vote for that district’s representative.

But, the question arises: how do we decide where the borders of each district are? Well, the first rule governing districts is that they must have at least 30,000 people in them. This rule comes straight from the Constitution. However, in practice districts all have between 500 thousand and 1 million people. That is because, as we will discuss in more depth later, the number of districts is capped at 435 and the population of the US has grown immensely since the Constitution was written. The second rule comes from the 14th amendment which guarantees each citizen “equal protections of the laws.” The Supreme Court in Wesberry v. Sanders (1964) ruled that this clause requires districts in the same state to be as close to equal in size as is “practicable.” The last rule is one the Supreme Court ruled on more recently, in Miller v. Johnson (1995): race cannot be “overriding, predominant force” in the redistricting process. Even with these rules, however, borders can be drawn in very different ways. So long as they follow these rules, state governments otherwise have total discretion in drawing Congressional district borders.

Gerrymandering is the practice of one political party in control of a state government drawing Congressional district borders such that they are more likely to remain in power in future elections. The word itself comes from an actual instance of gerrymandering, though this one was for a state-level senate: in 1812 in Massachusetts, Democratic-Republican Governor Elbridge Gerry approved a new state senate district map, biased in favor of his own party, that was shaped like a salamander. Thus, “Gerry” plus “-mander” became “gerrymander.” Gerry is remembered today because his plan worked. Many more Democratic-Republican state senators were elected even though they weren’t any more popular. So began a long history of politically-biased district maps.

Gerrymandering based on political party is very common nowadays in both Republican and Democratic states. And a vast majority of Americans of both parties agree that it should be stopped. Nonetheless, individual politicians are incentivized to create districts that will allow them to safely stay in office. So, outside of a referendum like they had in Ohio, it is difficult to stop the state government from conducting partisan gerrymandering. Unfortunately, the Supreme Court recently declined to make any restriction on partisan gerrymandering.

How do politicians defend gerrymandering when their constituencies disapprove of it? Well, as David Lewis, a Republican member of the redistricting committee in North Carolina says, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” Assuredly, Democrats in power, such as in Maryland, would say much the same. And even if you are opposed to partisan gerrymandering in theory, since it is unfair, why would you act against what you believe to the best interest of the nation? This same question was raised before in our discussion of statehood for DC and Puerto Rico. A serious belief in democracy requires a great deal of intellectual humility: it requires you to assume that you don’t know best and that only collectively will we best approximate the right course of action. People who act in opposition to democracy may also be acting in what they believe to be the best interest of the country.

Of course, there are some better reasons for certain kinds of gerrymandering. The best kind of gerrymandering results in representation for a minority group who otherwise would have none. Consider the following: if a state has ten districts and a population that is 90 percent white and 10 percent Black, is it more just to draw district borders such that each district has the same 90/10 demographics as the state as a whole? As we discussed before, under the current winner-takes-all system of Congressional elections this would result in the election of 10 Representatives whose interests would be aligned almost entirely with the majority. Alternatively, should one district be gerrymandered so that it is majority Black, giving the Black minority the chance to have a Representative whose views align with theirs? In this case, gerrymandering leads to better representation for minorities. In fact, this is roughly the argument Supreme Court Justice Ruth Bader Ginsburg made in her dissent to Miller v. Johnson. Racial minorities often share a number of aims, beliefs, and convictions, such that they comprise a “community of interest.” There are also many kinds of non-racial communities of interest, and it might be beneficial to gerrymander districts such that these minority communities are not also always political minorities — so that they do not have their rights to representation continually abridged.

Given the enormous complexity of drawing districts and the myriad political and moral concerns that must be considered, stopping partisan gerrymandering may seem hopeless. And, indeed, it is very difficult to fix. However, some states have tried using independent commissions to draw district maps, and this has worked to make districts more competitive. Making districts competitive is important because when politicians are at risk of losing a future election, they are more likely to pay attention to their constituencies’ changing interests. Others have sought more fundamental changes to the system of electing Representatives. One popular alternative to the present system is “mixed-member proportional representation.” Under this system, voters cast two votes, one for their local constituency, and one for a party “at-large.” This way, communities of interest are respected, but the total number of Representatives from each party is always proportional to the votes cast for that party.

The biggest difficulty in stopping partisan gerrymandering is getting state government politicians, who benefit from gerrymandering, to act against their own self-interest in order to change it. People in some states can petition for a referendum and enact change that way, but the laws around referenda are varied. Even once reform is possible, however, we will have to consider the best way to assure minorities and communities of interest are adequately represented. And, we will have to be honest with ourselves about whether we care more about fairness or about getting political change that we want, even if the means of achieving it are unfair.

Congressional District Sizes

Of course, gerrymandering isn’t the only issue with Congressional elections. In fact, while gerrymandering has garnered a great deal of public attention, its harm to our democratic system pales in comparison to something that sounds most banal: Congressional district sizes.

As I mentioned before, Congressional districts have a few restrictions on their sizes. They must be larger than 30,000 people. And, they must be nearly equal in size to all of the other districts in the same state. But, beyond these Constitutional restrictions, the size of districts is mainly limited by how many districts there are.

For example, because every state must have at least one Representative, and because of the formula Congress uses to apportion the limited number of House seats, districts can have as few as around 500,000 (in Rhode Island) to as many as around 1,000,000 (in Montana). The baseline problem here is that this means a voter in Montana has half the representation, and thus half the power to enact change, that a voter in Rhode Island has. It seems highly undemocratic that some voters get twice the power of others for no other reason than where they live. And, the districts with the least per capita voting power are predominantly rural and western. Of course, the disproportionately large power of small, western, rural states in the Senate may ultimately outweigh this injustice. But, as is often said, two wrongs don’t make a right.

Even disregarding this problem of district sizes, there remains another crisis of representation. In talking about gerrymandering, we considered the importance of communities of interest. It seems beneficial to minority rights broadly if these minority communities enjoy some representation, even if that representation is much less than is afforded to the majority. They, at least, should not be ignorable. The trouble is that it’s very difficult, if not impossible, to create a single community of interest that comprises between 500,000 and 1,000,000 people. You can easily find five people who share pretty much all the same views who live fairly close to each other. And you can probably find tens of thousands of people living near one another who share many of the same views and concerns. All the people near a state-long oil pipeline might be concerned about oil spills, for example.

However, few things can be said to adequately unite many hundreds of thousands of people together sufficiently to call them a “community of interest.” We mentioned before how racial communities are sometimes grouped together this way. And, while racial groups often have some shared concerns (about racism, for example), interests can vary widely within them. Intersectionality, the recognition that people have multiple intersecting identities, means that people’s interests are unlikely to be solely associated with any one identity. And the odds of large groups sharing many intersecting identities decrease the more identities you hope that they share.

I mentioned before in our discussion of gerrymandering that the winner-takes-all system prevents political minorities from having any representation. And I suggested the mixed-member proportional representation system as a potential cure. However, what if I told you that this problem could be fixed with a change to the Constitution that was actually on the Bill of Rights itself and the only part of the proposed Constitution on which George Washington elected to speak?

First consider this question: what is the first amendment to the Constitutions and how many amendments are on the Bill of Rights? Typically, the answers given would be “the one about freedom of speech, press, religion, etc.” and “ten.” However, the original Bill of Rights passed by Congress in 1789 had twelve amendments, not ten. And, the first of these was not what we typically think: rather, believe it or not, the amendment placed first before all the rest was about Congressional district sizes. (For those who are curious, the real second amendment was forgotten about until the 1980s when it was rediscovered by an undergraduate student who researched it for a paper on which he got a C. He campaigned for its passing which occurred in 1992 when it became the 27th amendment. It concerns the prevention of Congressmen raising their own pay without an intervening election.)

This amendment, titled “Article the first” on the original document, has the following text:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

The original Constitution gave the original 13 states Representatives in a way only vaguely proportional to their populations. After the next census, this amendment would have Congress allocate 1 Representative per state for every 30,000 people. Once a total of 100 Representatives were allocated (with a population of 3 million) new Representatives would be allocated so that each state had 1 Representative for every 40,000 people. This would continue until there were 200 Representatives (with a population of 8 million). However, here begins a mystery which had never been explored until the folks at non-profit Thirty-Thousand.org did so.

If the amendment is followed to the letter, a mathematical contradiction arises. From a population of 8 million to 10 million, there are required to be at least 200 representatives but the number also cannot exceed the population divided by 50,000, a number which would range from 160 at a population of 8 million back up to 200 at population 10 million. In short, the minimum number of representatives is greater than the maximum, an illogical contradiction.

The reason this paradox occurs is that unlike the previous several clauses, the final clause uses “more” instead of “less.” The original House-passed version actually did contain “less” while the Senate-passed version differed substantially. A conference committee changed the word “less” to “more” and this was the version ultimately passed by the entire Congress. The circumstances leading to the addition of a mathematical contradiction in Article the First are quite uncertain with at least one lawsuit alleging this difference to a scrivener’s error. And it is also confusing why Congress passed this amendment and 10 states ratified it without anyone becoming aware of the contradiction. Given that Washington himself advocated a maximum district size of 30,000, this amendment only makes sense if we ignore its illogical alteration by the conference committee.

In fact, even though this amendment was never ratified (it missed the cutoff by a single state at the time), Congress more or less acted like it was for a while. The number of Congressional districts increased roughly in line with the population until the 1820s, when the number of Congressional districts plateaued. It then paradoxically shrank in the late antebellum period. The number continued to grow with the population until it was forced to stop by a Congressional act. The 1911 Apportionment Act capped the number of districts and representatives arbitrarily at 435. At this time, the US population was less than 100 million so each district represented roughly 230 thousand people. By 1929, this change was made permanent with the Permanent Apportionment Act. Both the 1911 and 1929 pieces of legislation were contemporaneously criticized. About the former Representative Edgar Crumpacker of Indiana said this:

“If we make the ratio [of persons per Representative] too large the idea of representation becomes attenuated and less definite. The personal interest of the voter in his representative becomes less important to him, and we may lose something of the vital strength of our representative form of government.”

Crumpacker was thinking about the difficulties of creating communities of interest far before the term was thought up. And later on, Representative William B. Bankhead of Alabama called the latter piece of legislation “the abdication and surrender of the vital fundamental powers vested in the Congress of the United States by the Constitution itself.”

So why did this change actually occur? Well, as the previous source indicates the US House failed to reapportion itself in 1920 due to disagreement between urban and rural representatives. Continuing to increase the number of Representatives in line with population would give the rapidly growing cities more power. Obviously, rural representatives would not approve of giving themselves less power. And, many people in general were opposed to giving the cities, which had large non-white and immigrant population, more influence. The United States was still at this point in history very much a white supremacist state.

Furthermore, as in the gerrymandering case, voting for reform requires a Representative to go against their self-interest. With every new Representative, the power of every Representative is diluted. Supposing that each Representative does actually care about at least most of their constituents, voting to increase the number of Representatives would also require Representatives to vote against the interests of those they represent.

This presents a paradox of sorts. The duty of a Representative is to act in the best interest of her constituency. But, Representatives also seem to have a baseline duty to maximize representation for all citizens. Unfortunately, to serve one duty, they must contradict their other duty. And, given that only one of these duties also serves the Representative’s own interests, say, by maintaining her personal influence over the nation, it is obvious which she will follow.

So, again, we are met with the impossible problem of having to convince politicians to give up power for themselves and to limit their chances of enacting policies they think are for the best. And, unlike with gerrymandering, there is no way to begin a referendum to enact change without consideration to the politicians. Thus, it seems unlikely that a pathway exists to stop this system which intrinsically violates minority rights.

Plus, there is at least some legitimate opposition to enacting something like Article the First. If it were passed (with the final “more” changed to “less”), the US House would go from having 435 members to having over 6,000 members. That is a huge number. It would be larger than any other legislature in the world. One bad argument sometimes made is that there simply aren’t enough chairs in the US House building for that many people. Of course, were there to be 6,000 Representatives we might simply have them stay home in their constituencies and vote remotely as has been allowed for the first time recently due to COVID-19. This would prevent legislators from growing detached from their constituencies. However, the argument goes, this would also make it difficult for Representatives to work together on legislation. People could communicate remotely, but as we have seen during the pandemic, it’s just not quite the same.

Another argument against such a drastic increase is that people are already frustrated with having “too much government” and would rather shrink the size of government. This is an appeal to the popular will. Unfortunately, polling does not bear this out. While Congress is generally unpopular, more people support expanding the House than shrinking it, especially when historical context is provided about how each Representative used to represent less than 60,000 people compared to today’s 700,000. Of course, more people support keeping it the same than increasing it or shrinking it; the status quo has its own inertia.

One other argument suggests that a large number of Representatives would increase anonymity and thus corruption. However, others argue oppositely that corruption and lobbying would occur much less frequently due to the increased cost of corrupting the process. See, if some business only needs to buy 10 votes to get the majority of the 435 representatives for their legislation to pass, and each vote costs $100,000 dollars, corrupting the process only costs $1 million. If the cost per legislator remains the same but the number of legislators increases by a factor of 10, say, to at least 4,350, then so will the number of votes they need to buy, and thus the overall cost. Corruption would be much more expensive so it might occur less frequently even though less oversight is given to each individual Representative. More likely, these opposing factors would counteract each other and corruption would remain at the same level it is now.

In a similar vein, gerrymandering may become much harder to do as districts become smaller. Lawyer and political analyst Sean Trende makes this argument in a publication for the University of Virginia’s Center for Politics. He writes:

“Think of it this way: If there are 100 residents in a state with 100 congressional districts, there is no gerrymandering possible. If there are 50 congressional districts, it isn’t impossible, but it is still difficult. If, however, there are only five districts, a legislator will probably be able to draw the lines to cluster a disproportionate number of Republicans in a single district, leaving Democrats overrepresented in the remaining districts.”

Even this argument, however, has to go up against our general intuition that 6,000 people is just too many. This is probably the biggest hurdle to any substantive change to the apportionment process. And, of course, not everyone supports the ratio of one representative to every 50,000 people. Some argue in favor of a number of representatives equal to the cube root of the population. Others use statistics to calculate the number of Representatives that would result in the minimal disparity between population and power. In any case, however, we are just stupefied by tradition. It seems like there have always been 435 Representatives even though there haven’t. And, in fact, only one large nation, India, boasts a legislature with a lower number of Representatives per population. No other OECD nation has a larger ratio of citizens to representatives. Britain, that tyrannical monarchy from which our fledgling democracy broke away, now has nearly double the amount of popularly elected legislators that we have and nearly quadruple the total number of legislators. America, then, is exceptional, but in a very negative way.

America has a minority representation problem. There are a number of ways to fix this, but all of them require significant changes to our electoral system. Whether we eliminate the Electoral College, drastically alter our system of Representative election, greatly increase the total number of Representatives, or simply reform any of these systems, we will have to go up against the force of tradition and government powers that are compelled by legitimate duties and by self-interest to oppose change. Something must be done as the lack of representation for great swathes of the population in our democracy constitutes a crisis. How we deal with that crisis will require a great deal of discussion, particularly about our values and the values we demand our elected leaders hold. The correct approach is quite uncertain. Nonetheless, if we hold the value, central to democracy, that minorities ought not always to be totally dominated by the majority, we must enact some change of some form soon.

Continue to Part III

Profiting from Pandemic

headshots of Richard Burr and Kelly Loeffler

During the last week of March, it was widely reported that members of Congress used information from their privileged briefings on COVID-19 to adjust their holdings in the stock market before the information was made public. Politicians including Georgia Senator Kelly Loeffler, North Carolina Senator Richard Burr, Oklahoma Senator Jim Inhofe, and California Senator Diane Feinstein all sold suspicious amounts of their holdings around the time of briefings about the oncoming epidemic. It would be illegal if these allegations turn out to be true: financially benefiting based on actions performed based on non-public information is against the law for members of Congress. However, it is legal for members of Congress to hold stocks, and buying and selling financial material or benefiting financially from holdings while a member of Congress is fine legally. This makes evaluating the activity of Congress people difficult, as the legality of their behavior depends on the grounds for their activity.

That we need to determine the mental state of the actor in order to determine the legality of the behavior is not unique to these circumstances. Indeed, it is common in the law for behavior to only be considered criminal if someone performs an action intentionally, knowingly, recklessly, or negligently – all states of mind. Courts and lawyers are adept at creating standards for testing what would qualify as the relevant mental state (or mens rea) for particular crimes, and investigations are underway.

In these circumstances, the possibility that members of Congress may have financially benefited from privileged information is troubling for further reasons. The particular briefings the public servants received concerned the oncoming epidemic that would have dramatic impact not only on the economy but on public health and safety. Their estimates of the impact of this epidemic would be what led to the alleged adjustments in their investments, and therefore they would have been informed and concerned about the epidemic weeks or months before taking any action to mitigate the oncoming national crisis.

The lack of action seems straightforwardly unethical, especially in light of the continued lack of support and action on the part of the federal government as the national crisis escalates and shows all signs of continuing to escalate. The federal government has not intervened sufficiently. After passing a one-time $2 trillion dollar stimulus package, the Senate is no longer in session.

Regarding their use of the information for personal gain: Is it reasonable to expect those with privileged information that they could greatly benefit from to avoid taking steps to act on that information? How about if it was reasonably certain they wouldn’t get caught? Folks with privilege and power frequently don’t get caught, and when they do, the penalties for their malfeasance can be much less onerous than the benefits they received by skirting the moral and legal demands that constrain the actions of us all. Some views of human nature are explicitly predicated on the assumption that we are self-interested, so the “rational” action in such cases would be to benefit from the information they had. This line of reasoning supports a ban on those who have such privileged information from advantaging themselves from it, and using it as a privilege over those who don’t have access to it. Some members of Congress who are currently accused of insider trading in fact support such bans.

To Keep or Not to Keep? The US Electoral College and Presidential Representativeness

image of US map of electoral votes by state

“One person, one vote” and “Not my President!” These mantras underlie calls for election reform in the United States. They are pressed urgently now regarding the Electoral College and its role in selecting the President of the United States (POTUS) as the 2020 election approaches. Solutions posed by critics range from reformation, to circumvention, to abolition. To many the Electoral College is patently undemocratic because it does incorrectly represent the choice of the national constituency. This view is officially championed by numerous candidates for the 2020 Democratic Primary: Cory Booker, Elizabeth Warren, Jay Inslee, Julian Castro, Kirsten Gillibrand, Marianne Williamson, Pete Buttigieg, and Robert “Beto” O’Rourke.

During 2019 several states passed and signed legislation to join the National Popular Vote Interstate Compact: Colorado, Delaware, New Mexico, and Oregon. (Additionally, the measure passed both chambers of Nevada’s state house but was vetoed by Gov. Steve Sisolak.) These states join 11 others, and the District of Columbia, in pledging to assign their electoral votes to whichever candidate wins the national popular vote. This would effectively circumvent the Electoral College while leaving it in place. However, the compact only takes effect once enough states have signed up: i.e., enough states to contribute the 270 out of 538 electoral votes needed to win election.

How does the Electoral College work? Each state in the US is allotted a certain number of electoral votes, based on their representation in Congress (House seats plus Senate seats). Electoral votes are cast by individuals nominated to the College of Electors, whose votes directly determine which candidate becomes president. Most states give all their electoral votes to whichever candidate secures a simple majority (51%) of their popular vote. Maine and Nebraska are the exceptions, assigning electoral votes on the basis of results in each of their US House districts: a candidate receives one vote for each district they win, and the candidate who wins the statewide popular vote receives 2 votes.

Advocates for each position regarding the Electoral College claim their stance best represents the choice of voters, and that their opponents’ views over- or underrepresent some group or another. Supporters of the Electoral College argue it prevents urban areas from dominating elections, or that it accurately represents the federal structure of the US government. Critics of the Electoral College consider it unacceptable that a candidate can win election who does not have the support of a majority of the national constituency. They also argue the Electoral College inflates the voting power for citizens of certain states, and deflates the power of other states’ citizens, going against the “one person, one vote” principle.

Disagreements about the Electoral College are about who the POTUS represents. That is, it’s about what representation is and who the represented constituency is. Hanna Pitkin’s 1967 The Concept of Representation provides an important touchstone for a thoughtful discussion of representation. She elaborates four facets of representation: Formalistic, Symbolic, Descriptive, and Substantive. (See the Stanford Encyclopedia of Philosophy article on Political Representation.)

Superficially, the disagreement between detractors and supporters of the Electoral College solely concerns Pitkin’s formalistic aspect; the debate hinges on questions pertaining to the political process and its ability to confer legitimacy. We ask whether the election was conducted according to existing rules and the spirit of the law. Setting aside concerns about election tampering/interference, some claim President Trump’s 2016 election was “illegitimate” because he received significantly less of the national popular vote than Hillary Clinton. However the formalistic aspect of representation doesn’t fully capture the sense of illegitimacy pressed here: President Trump was elected according to the established protocol of the Electoral College system.

An alternative explanation is available in Pitkin’s symbolic and descriptive aspects of representation. When people denounce President Trump as “not their president”, they often mean to say that they object to what he stands for, or claim that he fails to resemble the voting public physically or ideologically. Such people would presumably accept, and feel represented by, a candidate who won the popular vote. Hence when critics of the Electoral College argue that the outcomes of US presidential elections are undemocratic, and don’t represent the will of US citizens, they mean it in the symbolic and descriptive senses. (This article will not discuss Pitkin’s substantive aspect. It involves an officeholder’s performance of their duties, which can only be evaluated after elections.)

While advocates for a national popular vote see US citizens at-large as the represented constituency, advocates for the Electoral College see US states as the represented constituency. This isn’t an irrelevant distinction. Consider a hypothetical situation in which the NPV is in effect. If the citizens of Oregon, which is in the NPV, vote unanimously in favor of one candidate but that candidate loses the national popular vote then all of that state’s electoral votes go to a candidate for whom not a single person in Oregon voted. The NPV, and any national popular vote scheme, recognizes no difference between Oregon voters and the voters of any other state—everyone is just a US voter. However the Electoral College system does distinguish between voters on the basis of their state of residence. 

Opponents of the Electoral College understand this, and argue that these distinctions diminish the voting power of some citizens relative to others. This effect is not a necessary consequence of the Electoral College—or at least not the effect’s magnitude. Rather it’s a direct effect of the cap on the number of voting representatives in the US House at 435 (Apportionment Act of 1911). This also caps the number of electors and has led to the average number of citizens represented by a House member (and hence the number of individual votes subsumed by an electoral vote) to increase over time, though differently for different states. The inflation/deflation of voting power Electoral College critics highlight is a direct consequence of the fixed number of House representatives. 

Increasing the number of Representatives would ameliorate the symbolic and descriptive representativeness problems of the Electoral College, while also increasing the representativeness of the House. Further it can be done by legislation in Congress rather than a Constitutional amendment as would be required to abolish or reform the Electoral College. Finally it preserves the distinction between voters of different states, respecting the federal structure of the US government. This consideration will not appeal to many opponents of the Electoral College. However, short of full abolition, increasing the total number of electoral votes by increasing the size of the House addresses representativeness problems, and does so without leaving open possibilities of bizarre, and objectionable, situations such as the hypothetical Oregon case above. The current Electoral College is malfunctioning, and the best ways to deal with it are complete abolition or substantive reform. The NPV does neither, merely walking around a broken machine without fixing it or removing it—leaving it to belch an occasional cloud of toxic smoke.


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Senator Jeff Flake: Courageous or Cowardly?

"Jeff Flake" by Gage Skidmore liscensed under CC BY 2.0 (via Flickr)

Last week, Senator Jeff Flake very publicly announced that he would not be running for reelection and then proceeded to denounce the Republican Party and President Trump. In a news interview with the Washington Post, the senator said that “he couldn’t sleep at night having to embrace the president”. He felt that the pressure from the Republican party to support Trump was debilitating. Some may admire his courage in standing up for what he believes in and standing up to his superiors, but it can also be said that he is “abandoning ship” and leaving his party at a crucial time.

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A Call to Vigilance in the Fight for Congressional Ethics

As Donald Trump prepares to assume the Presidency of the United States, many have speculated on whether the candidate will be constrained by the United States’ system of checks and balances. Some, such as Newsweek’s Stacy Hilliard, have assured concerned citizens that U.S. democratic institutions will function as designed, ultimately withstanding any single leader and keeping Trump in line. Writing just days after Trump’s victory, Hilliard argued that Congress would provide the strongest check on the President, noting that, “The legislative branch’s purpose is to be the voice of the people, and it historically does not like being dictated to from the White House.” Though Trump’s policies may be worrying, she argued, Congress would act to filter out the workable from the impractical, discriminatory and unconstitutional, constraining his presidency within the bounds of a long-stable governmental system.

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Is Infrastructure an Ethical Obligation?

It’s no debate that American infrastructure has been deteriorating. Across the country, bridges are collapsing, roads are riddled with potholes, schools have chipping paint; even the United States House of Representatives had lead in their water this summer. During their campaigns, both Hillary Clinton and Donald Trump have declared their intentions to drastically increase spending on infrastructure if they are elected to the presidency. Clinton announced that her administration would spend $250 billion on infrastructure over the next five years, paid for by a business tax on companies with assets abroad. In response, Trump stated he would double Clinton’s proposed investment by borrowing funds via the sale of government bonds. Numerous economists and bipartisan politicians have agreed with both candidates – America has an infrastructure problem that needs to be addressed, and soon.

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