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Leaders Behaving Badly: Executive Overreach and Dangers to Democracy

photograph of Donald Trump and Scott Morrison at White House press conference

In the same week that Donald Trump was being pilloried for taking classified documents from the White House, Australia was facing its own crisis of executive overreach. Reports surfaced that our former Prime Minister, Scott Morrison, had ignored the unwritten rules of Australian democracy and given himself responsibility for a variety of government portfolios, extending his power way beyond his remit. This extraordinary concentration of power in the hands of one man represented a significant threat to our venerable system of government. It also raises an interesting question about the nature of democracy: what is the best way to ensure that the voices of the population are represented in the halls of power?

What’s so great about democracy?

There are a couple of normative benefits to democracies over alternative forms of government. One is that executive power is limited, saving us from the sort of governmental overreach which characterizes totalitarian regimes. As political philosopher George Kateb wrote, “in contrast to dictatorship, oligarchy, actual monarchy or chieftainship, or other forms [of government], representative democracy signifies a radical chastening of political authority.” Both presidential and parliamentary democratic systems achieve this chastening by dividing powers between branches of government and providing checks and balances on executive authority. (That said, American presidents tend to have far more individual power than Australian prime ministers – despite the separation of powers in the U.S., executive orders are incredibly common).

For this chastening to be successful, however, strong constitutional or legal protections must be in place to ensure that power doesn’t become overly concentrated.

As we’ll return to in a moment, Australia’s reliance on unwritten laws, precedent, and tradition means that we are at risk of unscrupulous actors accumulating excessive power and wielding unfettered political authority.

Another positive of representative democracy is right there in the name – it is representative. Parliament, or congress, is made up of people from across the nation, and is supposed to represent the interests of those people; allowing them a say in, and control over, the laws and institutions that determine their lives. Australian philosopher Elaine Thompson equated representation with fairness: democratic systems are representative only insofar as “the parliament is accepted [by the people] as representing the people who elected it.”

The Australian parliamentary system

Before diving into issues of representation, it’s worth giving some background on Australian governance. There are quite a few differences between the Australian and American political systems but the major one is that, in Australia, we don’t directly elect our leader. Both Australians and Americans vote for local representatives and for senators to represent their states.

But whereas every American has the opportunity to vote for their president (ignoring the vagaries of the electoral college), Australia’s prime minister is chosen by the aforementioned local representatives.

Currently, the Labor party holds a majority in the House of Representatives and have elected one of their own, Anthony Albanese, to the Office of Prime Minister. But if one party doesn’t hold a majority in their own right, parties must work together to form governing coalitions. Once a prime minister is elected, they select a ministry of members of parliament who are given responsibility for different portfolios – things like health, education, trade, foreign affairs, and so on. The minister is then supposed to wield authority over their area, meaning they make the big decisions on policy matters and (occasionally) take responsibility when things go wrong.

So, the Australian flavor of representative democracy is quite different to the American one. But if representation is the goal, what offers better representation – parliamentary or presidential systems?

President or Parliament?

On the one hand, American presidents are directly elected by the whole nation, which might make them more representative than Australian prime ministers. Presidential candidates can’t afford to only appeal to small minorities or particular geographical areas: they have to garner support across the country. Theoretically, at least, this should temper their wilder inclinations as they attempt to cast as broad a net as possible (although empirical evidence might suggest otherwise). On the other hand, it might be unreasonable to think that anybody could truly reflect the diversity of a huge country like the U.S.

Unlike presidential candidates, local representatives can (and perhaps should) pander only to their narrow constituencies. This means they can take up local matters or focus on representing minority groups, although that narrow focus can mean they are less representative of the nation as a whole.

In Australia’s system, the issue of representative leadership is somewhat offset by the existence of parliament: although any one member might not be particularly representative of the entire nation, the parliament as a whole – all 151 members of the house, plus the senate – ought to offer a decent reflection of the nation. And because decision-making isn’t centralized in the prime minister, it’s not such a huge issue that they are only elected to parliament by a small proportion of the population. By spreading decision-making responsibility across members of parliament, representing different people from different places, we avoid the need to have any single, broadly representative, head of state or government.[i] Lately, however, this hasn’t been happening.

The secret ministries

Last week, news surfaced that during the pandemic (now former) Prime Minister Scott Morrison secretly swore himself in to five different ministries: Home Affairs; Finance; Health; Industry, Science, Energy and Resources; and Treasury. So rather than having responsibility for policy decisions spread across members of parliament, we had an unprecedented concentration of power in Australia – something closer to the American presidential system than the system we are used to.

What’s worse, we didn’t get any of the benefits of the presidential system.

Instead of having a president elected by the entire country and entrusted with heading government, we had a prime minister with a huge amount of centralized power elected by a small group of people from south-east Sydney – an area richer, whiter, and more religious than Australia as a whole.

Essentially, we had the worst of both systems: an unrepresentative leader with too much individual power. Thompson’s fairness was nowhere to be seen, and the chastening of power that Kateb wrote about had been eroded from within.

Despite public outrage and condemnation of Morrison’s actions (including from those in his own party), they were perfectly legal – even if they “fundamentally undermined” the practice of responsible government. Luckily, Morrison did little with his extreme power, other than cancel a permit for a gas project off the coast of Sydney. Next time, however, we might not be so fortunate. What the Morrison saga shows us is that regardless of whether we live in a presidential or parliamentary system, we can’t rely on convention, tradition, and unwritten rules. Strong laws limiting individual power are essential to the creation of democracies which truly represent the will of the people.

 

 

[i]  (For an excellent overview of the strengths and weaknesses of parliamentary and presidential systems, check out political scientist Steffen Ganghof’s recent book).

What Arguments for the Electoral College Really Show

image of disconnected US states

It is a widely accepted democratic principle that all votes should carry equal power (“One Person, One Vote”). That this is (at least generally) a good principle is less controversial than any attempt to explain why it’s a good principle. If Jeff Bezos proposed that rich people should be able to vote ten million times while everyone else should only be allowed to vote once, everyone would agree this is a bad idea. We might cite different explanations of why it’s a bad idea. We might worry about the well-being of the non-rich people, since politicians would have less reason to care about them. It might seem unfair or disrespectful to everyone else to privilege rich people in this way without a good reason. We might worry that it would make us unfree: if the government can (to some extent) boss people around, and rich people can control the government without our input, it would be like rich people were bossing us around, like they were dictators over the rest of us. We might cite more than one of these explanations, or some other one. The point is that everyone agrees that One Person, One Vote is usually a pretty good principle to follow.

But both the U.S. Senate and the Electoral College violate One Person, One Vote. This is because they give disproportionate power to voters in low-population states. Since all states have two senators regardless of population, California and Wyoming have equal representation in the Senate even though California has about 66 times as many people. Because Senate representation affects Electoral College representation, the Electoral College is similarly biased: compared to Wyoming, California has only about 18 times the electors despite, again, having 66 times the population. Because low-population states tend to be rural, and rural voters tend to be conservative, this biases both the Senate and White House in favor of Republicans: Republicans have controlled the presidency for twelve of the past twenty years despite only winning the popular vote once in that time. Since federal judges are chosen by the president and confirmed by the Senate, the courts also favor Republicans. But keep in mind: the main point here is not about whether it’s good or bad for Republicans to be in charge. It’s instead that our departure from One Person, One Vote really is seriously affecting the government. If we gave Jeff Bezos two votes, that would be bad, but it probably wouldn’t really change anything: his extra vote probably wouldn’t make any difference. But the Senate and Electoral College do make a difference. People who want Republicans to win can still agree that they don’t want them to win like this, by violating One Person, One Vote. And people who want Democrats to win can agree that these institutions would be problematic even if they favored Democrats instead.

Some people want to change the Senate and Electoral College. For instance, the National Popular Vote Interstate Compact would functionally eliminate the Electoral College, and granting statehood to Washington, D.C. would create new Democratic-leaning Senate seats, making the body more representative. But defenders of the status quo suggest we should keep the institutions as they are to prevent American politics being dominated by the residents of populous, urban areas at the cost of rural voters. Joe Seyton at Reason writes that “By preventing the majority from getting its way all the time, the Electoral College ensures… those in high-population states with large cities aren’t the only ones who have a say.” David Harsanyi, also for Reason, says:

“because of our childish propensity to use the word ‘fair,’ I understand that the Electoral College must seem like a relic that undercuts the sacramental notion of ‘one man, one vote’… [But] the Electoral College impels presidents and their political parties to consider all Americans in rhetoric and action. By allowing two senators for both Wyoming… and California… we create more national cohesion. We protect large swaths of the nation from being bullied. We incentivize Washington, D.C.—both the president and the Senate—to craft policy that meets the needs of Colorado as well as New York.”

Tara Ross, in a video for PragerU, says that the Electoral College encourages developing platforms which appeal to the entire country: “If winning were only about getting the most votes, a candidate might concentrate all of his efforts in the biggest cities, or the biggest states. Why would that candidate care about what people in West Virginia, or Iowa, or Montana think?” And Jeff Greenfield, at Politico, writes that the Senate “protects minority interests from majority rule,” something “liberals weren’t always so fearful of.”

According to this argument, the Senate and Electoral College help address an issue related to what the political philosopher Thomas Christiano calls “the problem of persistent minorities.” If a stable bloc emerges which can win elections without needing to compete for members of a certain group, that certain group risks having its voice drowned out. This might seem unfair even when the majority makes otherwise fine decisions. If you and your two friends watch a movie every Saturday, voting on which movie to watch seems fair when a consensus can’t be reached. But if your friends like the same movies as one another, but different movies from you, and they outvote you every single time, that seems less fair. Of course, rural Republicans wouldn’t be permanently locked out of governance without the Senate or Electoral College, and so wouldn’t exactly be persistent minorities. Instead, the Republican party would change its platform to bring new voters into a coalition with these rural voters (and other Republicans) so the party could remain competitive. But the need to attract these new voters means that the rural voters’ interests would receive less priority.

Defenders of the status quo therefore endorse what I’ll call the Minoritarian Principle:

While One Person, One Vote might be good most of the time, we should sometimes depart from it by giving disproportionate power to votes from members of minority groups when this is necessary to protect their sufficiently important interests.

Majoritarianism is rule by the majority, so naturally, minoritarianism is rule by a minority. I’ve called the principle the Minoritarian Principle because it means that a minority of voters can sometimes get their way.

But we can now see the fatal flaw in the pro-status quo argument: no justification is given for applying the Minoritarian Principle only to rural voters. The interests of many different minority groups are threatened in the U.S., and prioritizing rural voters often means deprioritizing members of these other groups. For instance, since rural voters tend to be white, privileging their votes disadvantages people of color. David Leonhardt calculates that the Senate awards .35 seats per million white voters, but only .26 per million Black voters, .25 per million Asian voters, and .19 per million Hispanic voters. Meanwhile, Andrew Gelman and Piere Antoine-Kremp estimate that “whites have 16 percent more power than blacks once the Electoral College is taken into consideration, 28 percent more power than Latinos, and 57 percent more power than those who fall into the ‘other’ category.” This creates exactly the situation defenders of the status quo worry about: Republican politicians can often win elections with minimal support from racial minorities, as when Trump was elected despite getting only eight percent support among Black voters. An unusually candid statement of the racial implications of the status quo came in an interview with Maine’s former Republican governor Paul LePage. He began defending the Electoral College by saying it increases the power of small states like his, but quickly shifted to defending it on the grounds that it increases the power of white people.

Unless the interests of rural voters are at greater risk than the interests of racial minorities, favoring the former at the expense of the latter is unwarranted. But if anything, the interests of people of color are at greater risk. So the Minoritarian Principle really seems to support something like the opposite of the current system. Perhaps the votes of people of color could literally just count for more. Perhaps we could create special Senate seats to be selected by minority voters, mirroring New Zealand’s Māori electorates. Christiano considers “requiring that candidates for elective office receive quotas of votes” from different demographic groups. Many countries currently employ “reserved positions,” where offices or seats must be held by members of certain demographic groups. “Consociationalistsystems built around group power sharing of the sort found in Belgium, Switzerland, or (historically) the Netherlands might provide another source of ideas.

I’m not saying we should implement one of these alternative proposals. There are good reasons to favor One Person, One Vote, too, and maybe those should win. And implementing the alternative proposals is politically impossible anyway. This is the point instead: If we favor One Person, One Vote across the board, obviously we should oppose the Senate and Electoral College. But if, like their defenders, we instead accept the Minoritarian Principle, we should still oppose the Senate and Electoral College. These institutions have effects — like decreasing the power of people of color — which are the opposite of those a reasonable application of the Minoritarian Principle would aim for. So reforming or eliminating these institutions would also be an improvement by the lights of the Minoritarian Principle. So when defenders of the institutions invoke the Minoritarian Principle, this winds up being a red herring. Whether we accept the principle or not, we should oppose the Senate and Electoral College.

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.

Under Discussion: A Dearth of Democracy

photograph of huge crowd from above, many with arms raised

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

At what is arguably the most powerful level of our government, there is the least democracy. The words “government of the people, by the people, and for the people” rings largely hollow, when seen in the light of the possibilities of democracy. This observation is not countered by the pedantic point that the United States was not conceived of as a democracy, but instead as a republic. Even conceding this point, as a democracy of indirect representation the United States is not particularly democratic.

The federal government is more removed from the direct control of the people than are the governments of the various states. This is by design. Originally, the federal government was conceived of more as the forum in which the states themselves, rather than the citizens thereof, advocated for their interests. Members of the US Senate were chosen by the legislatures of the states they represented, rather than directly by the people of those states. The President of the United States was chosen by electors, which in most states were not selected by popular vote but by the legislature of that state. Moreover, the number of electors allocated to a given state was based on that state’s number of representatives in US Congress. Hence, all of the federal government, except the US House of Representatives, constituted an at least doubly-indirect democracy.

To demonstrate this point, it helps to spell-out different mechanisms of democracy. We’ll talk about two mechanisms of indirect democracy, and two of direct democracy. The first mechanism of indirect democracy is what most people in the US likely think of when they talk about a democratic process — election. To state the obvious, election is the mechanism by which we pick someone to act as our representative in some role. As we’ll see later, elections can be conducted in manners that lead to a more or less representative outcome. The corresponding mechanism to election is recall, by which people vote to remove someone from a role for which they were earlier elected. A recall election is followed by, and sometimes combined with, a special election to fill the seat vacated by the official who was recalled. Retention elections, in which voters determine whether a judge remains in office, are used in several states and are a kind of hybrid election-recall mechanism.

The mechanisms of direct democracy are powers which people in indirect democracies vest in elected officials: initiative and referendum. Initiative is the power to propose and enact laws: i.e., legislative power. Ballot initiatives are the relatively rare occasions in which voters exert some direct control over what laws are enacted. The power of referendum is to initiative what recall is to election: it is the means by which enacted laws are repealed. In practice, the terms ‘initiative’ and ‘referendum’ are both used primarily to refer to legislative proposals that are voted on directly by voters. There are other, non-legislative powers that in theory could be assigned to voters at large. However, we’ll stipulate for the purposes of this discussion that it is a bad idea to give executive (enforcing the law) and judicial (interpreting the law) powers to the general electorate.

At the federal level, there is no popular initiative or referendum. All federal legislation is promulgated, amended, or repealed by the initiative of US Congress. Nor are any federal officials subject to recall. (Federal judges are not subject to retention elections, as they serve during “good behavior.”) Hence three of the four mechanisms of democracy — and both of the mechanisms of direct democracy — are unavailable at the federal level. This leaves only election. The federal government is less removed from popular control than it was originally. US Senators have been elected by popular vote since the 17th Amendment to the US Constitution, ratified in 1913. Further, every state apportions its electoral votes for president on the basis of popular vote. However, discontent with the federal government has led to numerous calls to reform these entities or the way they’re elected. In some cases, people even call for the abolition of the electoral college or US Senate. These institutions and the way their members are selected do not necessarily represent the varied interests of US citizens and their diverse values. Many reformers look to parliamentary countries (e.g., New Zealand) that make use of systems like proportional representation and ranked-choice voting for inspiration. Some US states make limited use of some mix of these enhanced democratic mechanisms. But by-and-large, the various states of the US recapitulate the limited and indirect forms of democracy found at the federal level.

As the United States prepares for a presidential election marked by extreme polarization and cautious attention from the rest of the world, there will be a lot of talk about the US system of government. The candidates will tout the US as a great democracy that will flourish under their leadership, and will warn of the degradation democracy faces at the hands of their opponent. It is important to keep in mind when evaluating all this rhetoric how little democracy the US has ever had, especially at the federal level.

Modern Monetary Theory, Taxation, and Democracy

close-up photograph of bank seal on banknote

The coronavirus pandemic has resulted in massive increases in government spending. Many governments around the world are scrambling to cover lost wages, provide benefits to those who are hit hardest by COVID, and to stimulate economic growth to ensure an economic recovery once the pandemic ends. Yet, with deficits of several nations hitting levels not seen since the Second World War and with more deficit spending still expected there are long term concerns about how all of this spending will be paid for. Because of this, several economists are now suggesting that this may be the time to seriously consider taking an approach consistent with modern monetary theory (MMT). However, MMT carries with it broad and far-ranging ethical consequences.

This year the U.S. federal government’s deficit is set to be a fourfold increase over last year (3.8 trillion dollars). The Canadian federal government’s deficit is likely to be over eighteen times larger than it was last year (343 billion dollars). Many other governments are also spending modern record deficits. One approach to dealing with this crisis is to essentially repeat the response to the 2008 recession; stimulate the economy and then commit to austerity by cutting spending and/or raising taxes. Another approach would be to adopt policies that are in keeping with MMT which would allow for increases in the supply of money to stimulate the economy instead of relying on taking on larger government debt.

Modern monetary theory is less a normative theory than it is descriptive. It requires a bit of a paradigm shift in thinking. Obviously, MMT and its relationship to modern economies is complicated, so I will focus on a few relevant points to addressing certain moral concerns. According to current understandings, governments must raise revenue through taxation or by taking on debt by selling bonds. Traditionally that is how things needed to work under a system like the gold standard. However, modern currencies such as the US dollar are fiat currencies; they have value because society collectively deems it so. But if the government can print its own money, why do they need your tax dollars? The truth is that they don’t, but because taxes can only be paid in that currency it creates a demand for that currency and thus adds to its value. If the government requires additional money for policy purposes, it can simply order that money be printed and then spend it rather than waiting on tax revenue or borrowing.

There is obviously a concern about inflation with this idea. Most people are aware of cases where runaway inflation can seriously harm an economy; Germany in the 1920s experienced hyperinflation where wheelbarrows full of cash were needed to buy inexpensive items, and more recently Venezuela experienced hyperinflation. If you print too much money too fast, the value of the currency can fall, and prices will go up. But MMT suggests that inflation can be controlled through taxation. When the government increases taxes, it can withdraw that currency from circulation and thus stem inflation. However, the aim should be to create money to invest in the economy to allow the efficient use of its resources and ensure that demand does not outpace the economy itself; this is also a way to check inflation.

My aim here is not to defend MMT, but to recognize its potential for significant, ethically-salient consequences. The most pressing issue right now is the potential that MMT offers. As noted, governments are currently spending record-setting deficits to cover the costs of COVID and to help stimulate growth from the recession it has created. Billions of dollars could be funneled into programs ranging from infrastructure development, to a universal basic income, to funding a Green New Deal. There are seriously ethically-beneficial possibilities. This is why several journalists and experts have suggested that the COVID crisis should make us seriously consider pursuing such policies. Another important factor to consider is that following a traditional monetary understanding, governments may be taking on billions of unnecessary debt that will inhibit future government capabilities for future generations.

On the other hand, there is risk that under MMT there may arise a situation where inflation begins to increase during recession or recovery when raising taxes would be a bad idea. But quantitative easing practices and massive spending have not produced inflation. In fact, central banks are currently looking to increase inflation anyways. However, there is a more significant concern that is highlighted in both the traditional monetary understanding and MMT: the relationship to values and democracy.

Critics of MMT frequently complain that it would essentially break down the wall that has been erected between central banks and elected governments. According to a recent article evaluating the merits of MMT during COVID, “serious problems may arise from putting the power to create, allocate, and spend money permanently in the hands of politically elected governments.” Governments, critics allege, have shifty politicians who only want to promise the moon in return for votes. While the general statement may be true according to a statistical bell curve, it is still a rather vague criticism. More importantly, in a democratic nation, if the public wanted to send itself knowingly into inflation, should it not be allowed to if it so wished? The myth that you can separate politics from central banking is inherently absurd when in practice it is undemocratic or resistant to democratic reform. There is also the fact that this independence has already been reduced after the 2008 recession anyways.

On the other hand, MMT, while theoretically bringing a democratic influence to central banking, may serve to undermine democracy. Voting and taxation have been closely intertwined concepts. America famously rejected taxation without political representation. The concept of paying taxes in return for government services is also important as it is often preached that paying taxes is an important civic duty; we pay taxes to ensure our mutual security and benefits. Much of the rhetoric about government accountability revolves around making sure that politicians spend tax money appropriately. How much of our thinking about government spending and accountability changes once governments can basically say, “We don’t need your tax dollars”?

Governments wouldn’t really need a budget either as they are currently understood. There would be no deficit. While there would be detailed accounting, governmental budgets would effectively be a spending plan rather than a balance sheet. It could seriously challenge, undermine, stress, and maybe improve several democratic norms and traditions. Given that some have argued that the US government is already effectively following MMT, the political questions are going to take on a newfound importance.

Does a Post-COVID World Change the Plan for Court-Packing?

"Equal Justice Under Law" Supreme Court facade

In recent weeks the United States Supreme Court has made several landmark decisions that have surprised many legal observers. Recent rulings on immigration, LGBTQ rights, and abortion highlighted the importance of Chief Justice John Roberts as a potential swing vote, tempering the conservatism of the Court. Recent headlines highlight this development: “John Roberts Shatters Expectations for the Supreme Court,” and “Chief Justice Roberts Steers High Court to a Surprising Term.” I imagine that the surprise many seem to have is owing to the expectation that with the appointments to the Court over the last four years, the Court would take a far more conservative approach. If Joe Biden wins in November (and if the Democrats gain control of the Senate) the matter of whether to “pack” the Court will become relevant again, but in light of recent events, would this be appropriate?

The debate over court-packing is not necessarily a new one. During the Depression, several New Deal provisions, like the National Recovery Act, were struck down. With five aging conservative justices to deal with, FDR proposed to expand the Court to appoint a new justice for every sitting justice older than 70 and who had served for 10 years. Had that proposal been carried out, six new justices would have been added to the Court. The move attracted controversy, but in the end one of the justices who opposed the New Deal retired a few months later and Roosevelt was able to appoint his own justice and shift the balance of the court.

It is important to note that nothing in the Constitution mandates that there be 9 justices on the court, and recently there have been calls to “pack” the Court with more liberal justices in order to shift the balance yet again. These calls follow the wins of Presidents George W. Bush and Donald Trump, both of whom became president despite losing the popular vote and who managed to appoint four justices between them (including Roberts himself as Chief Justice). Had the presidency been given to Al Gore (possibly assuming re-election in 2004) and Hillary Clinton, those three to four justices would have been able to tilt the Court heavily to the left. It is worth noting that Republicans have only won the popular vote of a presidential election once in the last 28 years. There is also the matter of Merrick Garland. Garland was nominated by Obama following the vacancy created by the death of Antonin Scalia. Had he been confirmed, the Court would also have shifted leftward. But Republicans refused to hold a hearing or vote, and after Trump became president in 2016, the vacancy was filled by Neil Gorsuch instead.

If Biden and the Democrats win in November and retake the Senate and the White House, the (now) lack of a filibuster on such votes could allow for more justices to be appointed. But with Roberts’ tendency to be a swing vote, tempering the more conservative voices on the Court, why would packing be needed? After only a few recent decisions, assertions like “John Roberts is Just Who the Supreme Court Needed”, that Roberts is “steering the court on a middle course,” that Roberts is “leading from the center” or that the Roberts Court defies partisanship have been made, and if it were true then the case for packing the Court would be undermined. Those who make such claims suggest that Roberts is trying to protect the integrity of the court from being seen as too partisan.

However, there is good reason to be cautious about these claims. As lawyer Tom Goldstein told NBC News, “The chief justice is more of an incrementalist than a swing justice…He is moving the law to the right, but slowly. And the liberal justices are willing to go along with him, to minimize the damage.” The LA Times reports that while trying to demonstrate that the Court is not in Trump’s pocket, “they quite often hand down ideological cases that go his way.” Indeed, in other cases, such as on the matter of voting rights, Roberts supported the conservative position. In other words, the evidence for the notion that the Court is now balanced or nonpartisan may be more anecdotal than conclusive. Given that these recent swing votes have taken place during an election year, it may be that Roberts is trying to prevent public resentment which might lead to court-packing. While political participation is generally low, issues concerning the makeup of the Supreme Court can be a significant motivator for voters.

Despite recent rulings, there are more arguments to be made for and against packing that are poignant during the current crises taking place in America. Courts are now ruling on the legality of COVID-19 orders, and this may be the most litigious election ever, setting countless precedents regarding voting by mail and absentee ballots. The Supreme Court itself ruled on cases in Texas and Alabama which have made it more difficult for people to vote by absentee, meaning that voters will have to risk infection if they wish to cast their ballots. The rulings that could be made following COVID-19 could have massive social, ethical, economical, and legal consequences. Climate change may require massive shifts in state intervention that conservative jurists regard as unconstitutional. In fact, hostility to voting rights are one of the reasons made for court packing. But court-packing may also be a useful threat to either gain voluntary compliance from the court on key issues or spur action to depoliticize the judiciary.

On the other hand, the arguments against packing tend to focus on the worst-case scenario where all the Court’s credibility is lost. With this in mind, certain proposals, like Pete Buttigieg’s, provide for the appointment of both conservative and liberal justices. But, as yet, there is no hard evidence to suggest that court-packing would work for or against public respect for the Court.

Former Obama White House Counsel under Barack Obama Bob Bauer has argued that attempts to pack the Court are ill-considered. He notes, “It seems that Trump’s opposition would do better to distinguish its reform politics from anything resembling the approach of this president, which seeks to undermine institutions and associated norms to engineer his preferred outcomes.” Institutional reform can be done in a way that is “bona fide” or in a way that will “merely result in additional or perhaps irreparable institutional damage and political fallout.” Bauer is clear to distinguish between institutions and outcomes, noting that court-packing secures chances of winning cases but does not strengthen the institution or our trust in it. In essence, it may delegitimize the Court, however, there is no reason to think that evaluation of an institution and evaluation of its outcomes are distinct endeavors. Certainly, some outcomes have undermined the legitimacy of the institution.

But this distinction between the Court as independent body or the Court as political tool requires further explanation and justification. Otherwise, the definition being adopted is that “bona fide institutional reform” merely excludes consideration of desired political ends for arbitrary reasons. On the other hand, while potentially useful even as a potential threat, if there is going to be a plan for packing, it also cannot be arbitrary. That plan must come from a particular vision of the purpose and function of the Court.

The Case For and Against D.C. Statehood

photograph of D.C. skyline with Washington Monument at dusk

A bill to set Washington, D.C. on the road to statehood has recently been passed by the House of Representatives. The sponsors of the bill argue that while D.C. has a greater population than some existing states, it lacks the federal-level representation that these small states have. Though the bill has extensive Democratic support, among Republicans it is a complete non-starter. Both President Donald Trump and Senate Majority Leader Mitch McConnell have unequivocally denounced it. However, their objections don’t even attempt to make a substantive case against the measure. Trump’s refusal was given in nakedly political terms, citing the increase in Democratic voting power that would invariably come from D.C. statehood. McConnell has previously criticized the idea on similar grounds. He claimed that admitting D.C. to the Union as a state (and Puerto Rico, for that matter) was a Democratic attempt to gain votes for “full-bore socialism.”Do opponents of D.C. statehood need more substantive arguments, and if so are there any such arguments?

The original argument against the US capital residing in one of the states arose in part from an incident known as the Pennsylvania Mutiny of 1783. Members of a Pennsylvania unit of the Continental Army, which had fought in the Revolutionary War, protested outside a meeting of the Confederation Congress (the US governing body created by the Articles of Confederation) in Philadelphia. They were owed back pay and decided to force the issue upon learning of the Congress’ meeting. Approximately 400 soldiers, with access to firearms, participated in these demonstrations. Members of Congress were prevented from leaving the meeting until Alexander Hamilton persuaded them that their concerns would be addressed at the next meeting. However, he also sent a request to the leader of Pennsylvania’s executive board, John Dickinson, requesting that the state summon militia to deal with the protestors. Dickinson twice refused this request, even after Congress threatened to move the US capitol from Philadelphia. When drafting a constitution to replace the Articles of Confederation, the delegates ultimately settled on creating a district under direct and exclusive control of Congress as set forth in Article I, Section 8. Fear of depending on one of the states for its defense and infrastructure, the newly created federal government led to the creation of the District of Columbia.

The arguments in favor of statehood for D.C. are much the same as those in favor of statehood for Puerto Rico, and every other territory that eventually became a state. In a word, the reason is self-determination. The federal structure of the US guarantees states significant power of their own affairs and territory. Any territory admitted as a state to the US is guaranteed the same sovereignty that every other state enjoys. The importance of this sovereignty includes the power of political representation in the federal government allowing a state to advocate its own interests. The Articles of Confederation under which the original thirteen colonies joined lacked a strong central government particularly because the states feared imposition and interference from centralized power. The motto “No taxation without representation,” did not subside after the Revolutionary War: it can be found lacquered onto the license plates of vehicles registered in Washington, D.C. Taxation without representation is the central grievance D.C. residents want addressed. While Puerto Rico pays federal taxes for Medicare and Social Security, they do not pay federal income tax. Residents of D.C. do pay federal income tax. Yet they, like Puerto Rico, have no senators and only have non-voting members in the House of Representatives. The citizens of D.C. couldn’t even elect their own mayor until 1973, with the post instead being filled by a federal appointee.

Mayor Bowser’s bid for statehood follows the so-called “Tennessee Plan” of William Blount, the first territorial governor of the Southwest Territory. (This was the name given to what would become Tennessee after North Carolina ceded land to the federal government as a settlement for some debt.) This model involves a potential state holding a referendum among its citizens (of whom there must be at least 60,000), and should that referendum pass then holding a constitutional convention to set out the plan for the potential state’s governance. D.C. has done all of this, and so there are two substantial reasons in favor of granting the federal district statehood. First, it fulfills a founding principle of the US that much political power should be reserved for the people and the geographic area where they live, rather than vesting it all in a few buildings in one small part of the country. Second, the people of D.C. have shown overwhelmingly that statehood is what they want. (In contrast to Puerto Rico, which voted down statehood referenda four times before passing one in 2017, albeit marred by low turnout and boycotts by some political groups.)

But what of the original reason for refusing to locate the US capital in any one of its member states? Will the federal government become subject to the whim of D.C. citizen’s and their state government? Proponents of statehood for D.C. do not want to eliminate the federal district entirely. Instead it would simply be shrunk to encompass the buildings of the three branches of government, supporting office buildings, and tourist attractions tied to the capital. Nor is the federal government as small and precarious as it was in the late 18th century. Congress likely has little to fear in shrinking from a federal district to a federal enclave.

Not everyone agrees that the problem of undue influence can be so easily dismissed. But even if it could be they argue there are more problems. While most D.C. voters endorsed the referendum, around 30% did not — and for a variety of reasons. Some were reasons of practical cost and administration, but others were more fundamental — namely that granting D.C. statehood would raise constitutional problems. The official legal advice given by the Department of Justice several times in the last few decades has been that Congress lacks the power to grant D.C. statehood. The issue turns on the phrase “not to exceed ten Miles square” found in Article 1, Section 8. The “plain meaning” (a legal phrase dripping with irony) of this is taken to be that Congress can neither unilaterally enlarge nor shrink the district. Mayor Bowser’s plan points to the Alexandria Retrocession Act of 1846, in which Virginia got back some of the land it had given to the federal government to create the federal district, as evidence that Congress can change the size of the district. However critics point out that this was and had to be a bilateral agreement: the Virginia General Assembly first passed their own bill, and Congress soon passed mirroring legislation.

The 23rd Amendment to the US Constitution is argued to pose an additional problem. This amendment gives the citizens of D.C. power to elect the US president by providing representation in the Electoral College. However, even if the district were shrunk to a small enclave of buildings, it would still be guaranteed some number of electoral votes by the 23rd amendment. The per capita power of these votes would be out of alignment with the minuscule population of the scaled-back federal district.

Statehood for Washington, D.C. is currently a moot question. No statehood bill will make it through a Republican-controlled Senate. But even with a future Congress, success is not guaranteed. Constitutional issues likely to be decided by the Supreme Court may keep D.C. and its citizens under federal rule for the foreseeable future.

Is Biden Trapped by Identity Politics?

photograph of Biden at rally pointing to the crowd

As anticipation continues to build over Joe Biden’s choice of running mate, he’s announced  that his preference is for a candidate of a different race and gender than himself and followed this up with a commitment to selecting a candidate of a different gender. This rankles many people, even some with otherwise liberal leanings. The thought, it seems to them, is that candidates for office should be selected entirely on the basis of their qualifications, without consideration of their sex or race. To think otherwise, now, has come to be pejoratively called “identity politics”, and as more Democrats push for Biden to choose a Black woman, right-wing voices delight in the insistence that Biden is being held hostage by identity politics. What’s so bad about that?

Identity politics is often treated as a term of abuse. This is not surprising, as the concept now so often stands for politicians using their racial or gender identity — or proximity to such — as a means to achieve political aims such as winning an election or silencing critics. New York Mayor Bill de Blasio, for example, has seemingly attempted to counter the growing number of criticisms from African-American former allies by increasing public appearances with his African-American wife, Chirlane McCray.

Such uses of identity politics appear cynically calculated to influence voters’ decisions not through sound argument or policy, but by appealing to a desire to support one’s group. In the worst-case scenario, identity politics in this sense is meant to deceive voters: it tells them that a candidate is one of them, or on their side, while endorsing policies that harm them. Identity politics can, of course, be abused in this way, in what Olúfẹmi O. Táíwò has called “elite capture”: the process by which a movement is exploited by elites to serve their own purposes rather than those of the people it is supposed to help. But abuse of this kind is not unique to identity politics, and so not a reason to dismiss it as harmful in itself.

It would be objectionable if Biden or those pressuring him were using identity politics in order to manipulate voters into acting in ways that harm them while helping Biden or his party. But for that to be the case, it would have to be true that he is actively pushing for policies that would harm the voters such a stratagem is designed to win over, and it’s unclear that he is — at least compared to his opponent. Moreover, for him to be using identity politics in this way, it would need to be the case that distracting voters from their real interests were his main reason for leaning toward a Black woman as a running mate. But there is no evidence of this, and it seems unlikely considering the chorus of his supporters pushing him to make this choice. It’s true, of course, that Biden is trying to win the election, and any running mate he chooses will be someone calculated to help him do that. But presumably he does a lot of things with that aim, most of them unobjectionable. If his purported reliance on identity politics is a problem, then, there must be a further reason.

One common objection to identity politics holds that voters have “been presented with a narrative and arguments convincing them to rely on identity politics, or in other words, shallow stereotypes,” as Tammy Bruce puts it. On this uncharitable view of identity politics, it functions primarily by reducing people to representatives of particular identities rather than recognizing them as individuals. Perhaps, then, the critics mean that in having to choose a Black woman candidate, Biden is ensuring that whoever he eventually chooses is not chosen for her qualifications, but for her gender and race alone. This is a popular take on identity politics, but it comes with its own set of problems.

First, to think that the pressure on Biden forces him to choose not a person but a stereotype seems to itself reduce Black women to stereotypes, since simply committing to a Black woman candidate does not imply either that anyone who meets that description is equally qualified nor that everyone who meets that description is qualified. The thought, instead, could be that although a number of Black women are perfectly qualified to be vice president, no one from that demographic has ever been chosen for the role due to a social depreciation of their race and sex. Seen in this light, a commitment to choosing a Black woman need not appear as a commitment to choosing a stereotype, but to choosing from a typically overlooked pool of excellent candidates.

Second, there is an underlying assumption that one’s sex or race is irrelevant to one’s qualification for a job. But clearly this is not always the case. It makes good sense, for example, to choose a Black spokesperson for the NAACP or a woman to consult women on reproductive issues. In these cases, a candidate’s race or sex is a qualification for the position, though it is not the only qualification and may not even be a necessary one. If, for example, a reproductive counselor is needed but no women with the requisite training can be found, it would make sense to choose a man. Still, to strongly prefer a woman for that position is not in itself problematic. There is no reason that the same might not be true of a candidate for vice president, especially if we consider that what qualifies one for that role is not some fixed set of laws, but an interplay of the historical and cultural context with the presidential candidate’s and their party’s strategy and priorities.

But there is an even more widespread, and perhaps slightly more highbrow criticism of identity politics, leveled by pundits from the liberal middle to the far right of the spectrum, such as Mark Lilla, Francis Fukuyama, Jonah Goldberg, and the Heritage Foundation. The spirit of this criticism isn’t so much that identity politics encourages us to see each other — and ourselves — as stereotypes. Instead, while such critics sometimes express sympathy for identity politics, they argue that by focusing on group identities it undermines the communal ties that bind us together. On this view, identity politics weakens our shared values by encouraging us to view ourselves primarily as members of sub-national groups and to focus on the interests of our group rather than those of the country. From this perspective, in expressing a preference for a running mate of a particular race and sex, Biden is sending a signal to some social groups that he is on their side but simultaneously telling other groups that he is not on theirs, and that he represents a fundamentally different culture from their own: one that prizes diversity over their interests.

But the view of identity politics as essentially divisive only works if we assume the divisions aren’t there to start with, or that they are minor enough that drawing attention to them causes more harm than good. If the divisions are already there, however, the options are to ignore them or to work to repair them, which cannot be done without recognizing that they exist. Now suppose that an electorate overwhelmingly votes for white men, regardless of the qualifications of others in the running. We might think that such an electorate is flawed. Waiting for the political landscape to improve on its own might work, but it also might not, since the electorate reproduces its biases with every election, choosing the person who “looks right” for the job, and thereby ensuring that that’s the kind of person who looks right for the job. In the meantime, an entire field of highly qualified candidates is left out. Another alternative, then, is to change the landscape by providing extra support for the candidates who don’t fit that type.

Identity politics — or at least the term itself — began life with the statement composed by the Combahee River Collective in 1977. The Black lesbian activists who comprised the collective did not take the concept to mean that they should get special treatment simply because they were Black, women, and lesbians. Instead, the thought was that insofar as society is structured in a way that does not treat all equally, they have a better insight into the inequalities that affect them than Black men, or straight women, might have. But the goal is not to splinter into ever-smaller groups, each demanding different treatment. The goal, rather, is for each group to lay out the ways in which it is not treated equally, so that different groups can come together in solidarity to help right each other’s injustices. Identity politics is the means; solidarity is the end. Elizabeth Drew asks, “But why does a woman necessarily merit a head start on the next presidential nomination?” The answer, perhaps, is that it’s time that women — and especially Black women — have the platform from which to present their own solutions to injustice.

On the Question of Strategic Voting

photograph of "voting" sign on a wall

On October 21st Canada elected a new parliament. In this election the issue of strategic voting became prominent. There were six political parties considered to be capable of electing members to parliament. Three of those parties are commonly grouped as “progressive,” including the Liberal Party who won a plurality of seats in the election, the center-left New Democratic Party (NDP), and the environmentally focussed Green Party. Because of this competition voters had to weigh the option of voting for the party that is their first choice or strategically voting for a party that is less favored but more likely to win in order to avoid victory for a party that is more strongly opposed. This tactic has been discussed and debated amongst those in the media and in the academy. Strategic voting is an ethical issue because it can affect the quality of democracy, however even the language used to discuss the issue reveals something about how we make value judgments.

In Canada certain electoral ridings tend to be traded back and forth between the Liberal Party and the Conservative Party. If a voter prefers the NDP, for example, they are confronted with a choice: They can vote according to preference, even though it may be very unlikely those candidates will win, or they might decide to vote tactically. While they may not prefer the Liberal candidate to win, they may want the Conservative candidate to win even less; the voter may then strategically switch their vote for the Liberal Party in order to avoid a Conservative victory. The effect is that the vote share that would normally go to the NDP or the Green Party is suppressed.

This phenomenon is not foreign to American voters. Political scientist Gar Culbart has analyzed data from four presidential elections and found evidence that primary voters tend to select candidates more likely to win the Presidential election, rather than their first-choice preference. But strategic voting can apply past the nomination stage as well. In the last Presidential election left-leaning voters (particularly Sanders supporters) had to face a difficult decision between not voting at all, voting for a third-party candidate like Jill Stein, or, despite not liking her candidacy, voting for Hilary Clinton in order to prevent a Trump victory.

The issue of strategic voting has become a controversial topic. One the one hand, if a voter wishes to prevent a certain candidate from winning, and this is more important to them than voting for their first-choice candidate, it seems like a sincere preference and for some voicing it may be considered to be a moral obligation. Pundits like Bill Maher have been fiercely critical of those who do not vote strategically. Drawing attention to issues like climate change and the Supreme Court, Maher has criticized voters who opted for Jill Stein or even not voting at all instead of voting for Clinton because she was “the lesser of two evils.” Similar criticism followed the 2000 election where 537 votes separated George W. Bush from Al Gore in the state of Florida. Had left-leaning Nader supporters voted strategically, Gore would have won the state and the presidency. In other words, failure to vote strategically can lead to negative consequences.

On the other hand, arguments have been made that strategic voting is wrong. In 2006 in response to pressure placed on voters by the Liberal Party for NDP supporters to vote Liberal to stop a Conservative victory, Jack Layton noted that it is “frankly offensive” for Liberals “to tell Canadians they are limited to two choices, that they are limited to a choice between corruption and conservatives.” Indeed, it can lead to complacency amongst the political class if they can use the specter of the other side winning in order to secure votes, knowing that because voters lack a better option they don’t need to be as responsive to what voters want. This can lead to disengagement and frustration with the democratic process.

While the choice to vote strategically is an ethical issue, the way strategic voting is characterized can also raise ethical concerns. Strategic voting involves value judgments, and as a value judgment the language and rhetoric surrounding the issue is problematic and misleading, even amongst academic writers. In the wider public discussion, voting strategically has been described as “voting against” something rather than voting for something. To avoid a strategic vote, some politicians will suggest that voters “vote their conscience” rather than engaging in prudential reasoning. Academics studying the matter will compare strategic voting to “sincere” voting or will describe a strategic vote as a voter not choosing their “preferred candidate.”

But such language is misleading. As Philosopher John Dewey notes, value judgments are always specific. He argues that “A decision not to act is a decision to act in a certain way; it is never a judgment not to act, unqualifiedly.” Thus, if one does not wish to elect a politician, they are never merely voting against something. Instead. they are deciding that an election is worth boycotting, or that another politician is worth supporting (if they weren’t, one would have no reason to be strategic). Thus, it is never merely the case that we vote against things.

Dewey further argues that in forming a value judgment there is a difference between what we like and what we would prefer. Indeed, I may like the idea only eating donuts for the rest of my life. However, I consider both the means required to do this and the effects it would produce problematic and so I reject the idea. As Dewey sees it, “reflection is a process of finding what we want, what, as we say; we really want, and this means the formation of a new desire, and a new direction for action.” Does it make any sense then to claim that if my diet includes things other than donuts, I am not eating sincerely? Am I not, after careful reflection, eating my preferred diet?

The debate regarding strategic voting is complicated enough without including connotative language which suggests that a strategic vote is not “sincere,” not a vote “for something,” or that it means one is not following their preferences; all of these have the potential to illegitimately question the legitimacy of a vote and drag the debate in an unhelpful direction. By the same token, calling a vote that is not made for strategic reasons a “wasted” vote is not helpful either since the vote may be intended to avoid the long-term problem of an unresponsive political class. Perhaps the best way to examine the ethics of strategic voting is to clarify our language and to examine the issue carefully in terms of what voters are trying to achieve by making such value judgments and whether their judgments deliver the results they expect and are comfortable with.


This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.

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.


This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of our discussion questions, check out the Educational Resources page.