A 'conservative' argument against the National Popular Vote

The National Popular Vote plan -- the idea of a compact of state legislatures through which all contracting states would award their electoral votes to the presidential candidate who receives the most votes nationwide -- has been discussed several times over the past year on this blog, but as far as Gary L. Gregg is concerned the NPV is being advanced by a stealth campaign, "without a national discussion and largely without serious debate at the state level." Gregg, the author of a defense of the Electoral College, sounds a warning against NPV in the December issue of The American Conservative. He's troubled by the NPV compact's potential to get around the Constitution without amending the document, though he concedes that the national charter gives the states the prerogative to distribute their electoral votes however they please. Nevertheless, he believes that the Framers meant for the President to be chosen in a certain manner, and that NPV violates that original intent with radical intentions. Like a good originalist, Gregg explains that the Framers briefly considered a popular election of the President at the Philadelphia Convention, only to dismiss the idea. As an honest historian, he also admits that "By 1800, the development of political parties undermined the deliberative nature of the [Electoral] college, with discussion replaced by party loyalty as the basis for electoral voting." It would seem, then, that we've been living under an unconstitutional electoral regime, from the perspective of the Framers' intentions rather than their ratified words, for more than 200 years. How much more "unconstitutional" can the National Popular Vote be?

Gregg appears to believe that the corruption of the Electoral College by partisanship has been a good thing in the long term. Once the nation accommodated partisanship by ratifying the Twelfth Amendment and mandating the mating of presidential and vice-presidential candidates, the College, especially after most states adopted a winner-take-all strategy instead of awarding electoral votes on a district basis, retained two important benefits, in Gregg's opinion. First, "it funnels votes into two candidates with relatively broad bases of support and exaggerates the margin of victory for the winner, no matter how close the popular contest." For example, Bill Clinton received 68% of the 1992 electoral vote despite winning only 43% of the popular vote. Since NPV does not require any candidate to receive a majority of the popular vote in order to receive the electoral votes of the contracting states, Gregg worries that any winner of an NPV election will have a less impressive numerical mandate than Clinton supposedly enjoyed. His worry is related to his almost counterfactual assumption that NPV would lead to more independent presidential candidacies.

Under the prevailing system of winner-take-all [on the state level], a candidate whose support is not localized within particular states has no incentive to run. Without this moderating system, the extremes of each party would be empowered to blackmail more prudent candidates: 'Make me director of the EPA or I run and siphon enough votes to cost you the presidency!' In a [evenly] divided nation, one candidate with the power to draw just a few percentage points of the vote nationally could completely change the outcome of the election. Corrupt bargains would be routine.

Gregg here underestimates the power of lesser-evil thinking among the leaders of the Bipolarchy. It seems unlikely, as things stand, that any powerful Democrat or Republican would consciously launch a quixotic campaign that would most likely throw the election to the enemy party out of thwarted ambition, or even threaten to do so in an attempt at blackmail. Gregg may think differently, but in any event this isn't his main argument against NPV.

Gregg has an ideological bias that his article expresses more crudely than is typical of The American Conservative. His great fear is that NPV would empower a radical, urban-based left while marginalizing small, rural states and rendering their concerns irrelevant to national politics. The current electoral regime "compel[s] candidates to mingle at state fairs, speak with coal miners, throw bowling balls, and visit small-town churches," Gregg writes. That "gives candidates some appreciation of the great diversity of this nation." Despite the initial corruption of the Electoral College by partisanship, the system still "fits the spirit of [the Framers'] decentralized system, which treats states as more than just administrative arms of a national majority." Meanwhile, the vast internal diversity of cities vanishes in Gregg's imagination, transformed into a monolithic "urban" vote organized and radicalized by ACORN-like entities. He sees dire consequences if the urban vote becomes so decisive that "small states like West Virginia or Colorado would never see a presidential candidate again." This is a familiar fear, but perhaps not a fear the Framers shared with Gregg. It's interesting, if not telling, that the authority he cites in defense of the Electoral College is not a Framer but a U.S. Senator from the late 20th century, Democrat Daniel Patrick Moynihan of New York. Defending the College in the 1970s, Moynihan argued that it expressed the crucial principle that "power is never installed, save when it is consented to by more than one majority." On this evidence, Gregg recruits Moynihan into the sinister tradition of John C. Calhoun, who first propounded the concept of "concurrent majorities" in order to justify a slaveholders' liberum veto on all national issues. It's probably unfair of me to drag slavery into this, but I invoke Calhoun to remind readers that concurrent-majority interpretations of the Constitution have been refuted fairly decisively for nearly 200 years. Even if we leave Calhoun and his baggage out of it, Gregg has nerve invoking Moynihan against single-majority rule when he's already acquiesced to single-majority rule in its most notorious, counter-Framing form, the two-party system. I'm often tempted to wish the country back to the original Electoral College format, with each elector chosen solely by the voters of his or her district, on the assumption that independent candidates would benefit. That probably makes me more of an originalist than Gregg, despite his history lessons. He's happy to see the Framers' intent compromised so long as the Bipolarchy serves his ideological agenda by thwarting some vaguely threatening radicalism. Maybe originalists accept that because they see the Framers changing their own minds about partisanship. If so, real radicalism might require us to be more true to the Framers' original intentions than the Framers were themselves.