Assignment Desk: We need some speculation about the legislative bargaining implications of three not-totally-implausible election outcomes:His three are an electoral college tie; an EC/national vote split with Barack Obama winning the electoral college; and a recount/lawsuit mess.
The first two, I think, are essentially identical to simple wins by Mitt Romney (who would presumably win a tie) and Obama. In the case of a tie, I assume that virtually every single Republican Member of the House would immediately announce support for Romney, which would assure Romney the win. In the case of a national vote/EC split favoring Obama, I'm pretty confident that the political system would treat it as a straightforward win. In neither case do I really think that the closeness of the contest would make much of a difference (yes, Republicans would presumably treat Obama as an illegitimate usurper in the latter case, but the managed to do that in 2008 anyway, so it's hard to see that an actual very close election would make much of a difference).
A split or a tie, especially a tie resulting in a Romney/Biden administration, would be a curiosity, but there's lot of precedents for quite properly treating the Constitutional scoring of an election as the real result.
What would happen if the presidency was truly unknown in November, thanks to recounts and lawsuits?
My guess is that the impulse to suspend everything and kick the can down the road for six months, at least on the big Bush tax cut and sequestration items, would be very, very, strong. It would require each side to make a major compromise: Barack Obama doesn't want to sign any further extension of Bush-era tax cuts for upper-tier taxpayers, and Republicans want spending cuts, although not exactly the ones in the sequester. But no one is going to want to thrash that out while everyone's attention is on the election outcome fight, and a lot of people would push for a rapid bridge over the "cliff." A relatively neutral delay is the easiest solution.
However, that's only if the presidency is a total unknown, and everyone agrees it's unknown. What I think gets trickier would be situations in which, say, Obama was leading in enough states but seemingly low-odds recounts or lawsuits were going on in one or more states. We might get into situations in which one party believed it would definitely emerge victorious, while the other believed the outcome was uncertain. My guess would be that those situations in which there's major disagreements between the two parties on (future) leverage would be more likely to yield a breakdown with nothing passing.
On that last scenario and its various permutations, I'm not all that confident of my analysis, and welcome other views. But on the first two: I really do think that people are overstating the potential disruption that a tie or a split would create, assuming no contested states within that.
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In the event of an EC tie, the presidential election goes to the House, where representatives vote by state, not individually. There are a number of states with even numbered delegations that could plausibly be deadlocked because they're evenly split between the two parties. Wisconsin, Iowa, New Hampshire, and Arkansas come to mind. If there are enough deadlocked delegations, it's possible that neither candidate could reach 26 states.
ReplyDeleteIf I'm reading the 12th amendment correctly, this scenario would result in a President Biden. The Senate would be able to make their choice for VP (presumably Biden), "and if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following [now January 20], then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President."
DeleteThe Senate cannot simply vote for Obama for VP in this scenario, though, since they must choose from the top VP candidates (presumably only Biden and Ryan will receive electoral votes for VP).
That's my read on the situation as well. I think there'd be some question as to whether Biden was President or Acting President, thanks to the confusion over whether the presidency is actually vacant in this scenario, and a great deal of confusion as to whether the House needed to keep voting continuously or not.
DeleteSee Russ Baker's 1967 book "Our Next President" for a similar hypothetical outcome for the 1968 election.
Is it the old Congress or the new Congress elected in November that would vote?
ReplyDeleteIt's the new Congress. That was part of the logic of the 20th amendment.
DeleteSee an old soc.history.what-if post of mine at http://tinyurl.com/8vf9pef
Delete"I assumed that under the Twentieth Amendment, the new Congress decides on the President and Vice-President in the event there is no majority in the
Electoral College...Certainly that is in accord with the *purpose* of the Amendment--the whole point of pushing back the opening date of the new Congress to January 3 (17 days before the presidential and vice-presidential terms start) was to prevent a lame duck Congress from making the choice. And yet...there is nothing in the text of the amendment which specifically states that only the new Congress can make the choice. In a 1980 Atlantic Monthly article entitled "Deadlock: What Happens if Nobody Wins", Laurence M. Tribe and Thomas M. Rollins argue that "The outgoing Republican Eightieth Congress...could have responded by moving up the date for picking among Democrat Truman, Republican Thomas Dewey, and States' Rights candidate Strom Thurmond. In any year, this tactic would surely stir popular protest, but a partisan Congress could decide to take the heat: the re-elected members are likely to be from safe districts; the lame duck members have little or nothing left to lose."
http://www.theatlantic.com/issues/80oct/deadlock2.htm Tribe and Rollins
argue that this is so contrary to the history and principle of the 20th
Amendment that "the silence of the Constitution's text becomes almost
irrelevant. The document should be interpreted to forbid lame duck
manipulation of the presidency, although a partisan Congress might decide differently -- and it is anyone's guess how far the courts would go to halt the lame ducks as they tramp across the spirit of the document for their own narrow ends."
It is no longer (since 2000) anyone's guess. If a lame-duck Congress was trying to install a Democratic president, the Supreme Court would wield the 20th Amendment like a club to bash the ducks into senselessness. If, on the other hand, the lame ducks lamely wanted a lame Republican, SCOTUS would declare the matter a "political question" outside the purview of the courts.
DeleteThe Electoral College could put Obama's name in nomination as VP if they saw this coming down the pike, and then the Senate could elect him as VP so he could serve as Acting President until the deadlock was resolved.
DeleteThat doesn't work unless enough electors do so to make Obama one of the top two electoral vote winners for VP. Only the House chooses from the top three; the Senate chooses from the top two. So at the very least, you'd need at least 135 electors to vote for Obama for VP, and if any of those electors were from Illinois, they would have to vote for someone else for President.
DeleteThat would not be terribly difficult to arrange. As soon as it was clear that there was a House deadlock, it's a simple matter of whipping all the electors. There are enough to go around. Everyone but the Illinois electors should vote for Obama for Vice President, as should all of the Democratic Senators.
DeleteAnd such a maneuver would then probably provoke a similar ploy from Romney's electors...
DeleteTo me, the most intriguing tie scenario is an elector casting a vote for a third candidate, making it a three way race in the house under the 12th amendment. I wrote about this in depth in 2004:
ReplyDeletehttp://www.mattglassman.com/?p=2149
This would really be the dream scenario for the conservatives, no? One elector puts Santorum or Gingrich or whoever into the mix, all hell breaks loose in the House, and they end up getting rid of Romney in favor of a true conservative. Could get really crazy.
Would work better if there was a real conservative champion out there, though. I mean, there's a reason that Romney wound up the reluctant consensus choice.
DeleteStill, a great post, and I recommend it to everyone.
"A split or a tie, especially a tie resulting in a Romney/Biden administration, would be a curiosity"
ReplyDeleteA Romney/Biden administration would be a curiosity indeed.
What would happened if theres a EC tie and the Senate has 50 Democrats (including Angus King) and 50 Republicans? So would it be politically possible for VP Biden still break the tie and keep himself in power?
DeleteI'm convinced. How do I vote for Romney/Biden?
DeleteThere is one advantage of the Electoral College that hasn't been mentioned here: in a very close election (let's say it's close in both popular and electoral votes) at least with the Electoral College all you have to worry about is recounts in a few very close states. With a national popular vote, you would have recounts in every state, even states overwhelmingly carried by one candidate or other, since the *exact* extent of that candidate's landslide in that state would help determine the national result.
ReplyDeleteJFK won nationally by about 117,000 votes, but all anyone cared about (once California went for Nixon when the absentee ballots were in) was whether his victories in Illinois and Texas were legitimate. Whether there was vote stealing by Democrats in Massachusetts or Republicans in Indiana didn't matter, because these were not closely contested states. With a popular vote, votes everywhere would have to be scrutinized.
(I'm giving 1960 rather than 2000 as an example because in 2000 the popular vote wasn't quite as close.)