Checks and Imbalances: The Problem with Popular Vote Movements

The philosopher George Santayana once observed that those who cannot remember the past are condemned to repeat it. Several state legislatures today seem determined to bring his words to fruition, and the sad part is, those who do know history are condemned to repeat it with them.

Lawmakers in Hawaii, Illinois, Maryland, and New Jersey have all passed legislation bringing their states in line with the National Popular Vote campaign to effectively replace the Electoral College system with a popular vote system for electing presidents. A fifth state, Massachusetts, may soon follow suit: The bill has already been approved by the Bay State’s House and may be voted on by its Senate this week.

States adopting the NPV legislation promise to allocate their entire slates of electors to the winner of the national popular vote, just as soon as state legislatures representing 270 electoral votes (enough to win the presidency) have agreed to do the same. Hawaii, Illinois, Maryland, and New Jersey together represent 50 electoral votes. Massachusetts would bring the total to 62.

These legislators should look to history, as Santayana advised. There they would find debates about a similar popular vote movement almost a century ago, as well as a warning from the past.

In the early 1900s, a debate raged over a proposed constitutional amendment to modify the election process for U.S. senators. The original process put this responsibility in the hands of state legislatures, but many Americans instead wanted to hold direct elections.

Republican Senator Albert J. Beveridge from Indiana neatly summarized the popular vote position from the Senate floor in 1911: “The thing we do want, the thing upon which the people are determined, the thing which they ought to have, both as a matter of reason and of changed conditions since the Constitution was adopted, is a right of the people to elect their senators themselves.” Any other position, Beveridge concluded, stems from a “profound distrust of the people” and should not be tolerated in a democracy.

The Constitution’s defenders, however, understood that the issue ran deeper than a mere sound bite about the joys of democracy. The constitutional structure of checks and balances exists in delicate harmony. Even one tweak can have drastic and unforeseen consequences.

Elihu Root, then serving as a Republican senator from New York, understood this balance. He pled with his fellow senators, “[N]o one can foresee the far-reaching effect of changing the language of the Constitution in any manner which affects the relations of the States to the General Government. How little we know what any amendment would produce!”

These arguments are echoed in today’s debates over the presidential election system. Electoral College opponents often argue that the “voice of the people” should be respected—whatever the costs. They dismiss concerns about any impact on America’s system of checks and balances or the relations between large and small states, clinging instead to idealistic notions of how democracy should work.

In reality, pure democracies often implode, as the Founders knew all too well. John Adams once observed that “democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” Alexander Hamilton similarly noted that the “ancient democracies, in which the people themselves deliberated, never possessed one feature of good government. Their very character was tyranny; their figure, deformity.”

The delegates to the Constitutional Convention knew that the American experiment in self-governance would not succeed unless they put checks and balances on the voice of the people, just as they did on every other aspect of U.S. government. They believed in democracy, but they knew that certain tools would also be needed to keep emotional or tyrannical majorities in check. The Founders provided for the selection of senators by state legislatures as one of these protections and the Electoral College as another.

The NPV plan now endangers the Electoral College. States enacting the legislation are repeating the mistake made in 1913, when the Seventeenth Amendment replaced the original election process for senators. It probably seemed harmless at first, but a century later, the problems are obvious.

The original constitutional provision made senators accountable to the state legislatures for their votes. Therefore the states themselves, as sovereign entities, had a voice in the federal legislative process. They could more easily defend themselves from encroachments upon their power or from a federal government that has always been quick to make promises to constituents but slow to fund those promises. No longer.

Senator Zell Miller noted in 2004 that the Seventeenth Amendment “was the death of the careful balance between State and Federal Government”—and the federal government has emerged as the clear winner. As a result, the size and scope of federal government, to say nothing of federal demands upon the states, have escalated out of control. Just ask state governors, many of whom complain about unfunded federal mandates like No Child Left Behind.

For those who care to learn from this history, the lesson is simple: The Constitution combines democratic, republican, and federalist principles in a delicate balance—and it does so for a reason. A pure democracy is, as one Founder noted, “a volcano, which conceals the fiery materials of its own destruction.”

Much destruction has already resulted from upsetting the Founders’ checks and balances—namely, a bigger federal government, more pork barrel spending, and more mandates from Washington.

Americans can expect even more of the same, if state legislators don’t pay attention to history.

-Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College and a contributing writer for Doublethink Online.