Opinion | Politics

Mark Trahant: Rethinking governance amid a messy election fight

Sen. Jeff Sessions (R-Alabama), left, endorsed Republican presidential candidate Donald Trump on February 28, 2016. Photo from Facebook

#NativeVote16 – America and the Terrible, Horrible, No Good, Very Bad Election
By Mark Trahant

Barry Goldwater told me one of my favorite political stories. We were in Phoenix and I was interviewing him for a story I was working on about John F. Kennedy for The Arizona Republic. Goldwater loved Kennedy. They were buddies. They had this idea that the two friends would campaign in 1964 by traveling around the country and debating the issues. Their ideas, conservative or liberal, would get a hearing on their merits instead of silly debates about who is the liar or the choke artist.

At a California press conference President Barack Obama seemed to disqualify Donald Trump (and the remaining Republican field) as not being serious enough for the presidency. “I continue to believe Mr. Trump will not be president, and the reason is because I have a lot of faith in the American people,” the president said. “It’s not hosting a talk show, or a reality show. It’s not promotion, it’s not marketing … It’s hard and a lot of people count on us getting it right.”

There is a flaw in the president’s logic. It’s not a problem with the American people, but a Constitution that is not democratic. (Previous: Indigenous voices are needed to make U.S. a stronger democracy.) This year may be the test of that constitutional structure in a way that has not been seen since presidential elections in the 1800s.

First a little context: The House of Representatives reflects a breakdown in two-party politics. There are really at least three parties trying to govern: Republicans, true-believing conservatives and Democrats. The conservative faction made it impossible for Republican leaders to pass budgets or do much business of any kind. So the leadership often had to turn to Democrats for help to enact legislation. The resignation of House Speaker John Boehner bought a little time, and some good will to his replacement Paul Ryan, but the basic tension remains.

Will traditional Republicans vote for a Democrat?
This same dynamic is present in the Republican presidential primary. Ted Cruz represent this angry slice of the conservative electorate that wants to blow up Washington’s establishment and start over (all the while paying homage to genius of the Constitution). Ohio Gov. John Kaisch is a traditional Republican, but has little support. Mario Rubio is sort of a bridge between the two factions. He is both establishment and true believer. He said on Face the Nation Sunday that if Trump is the party’s nominee it could mean the end of the Republican party.

Trump is a populist running as a Republican. His ideas are all over the map, appealing to many Republicans in a primary, but lacking the logical framework to execute those ideas to a conclusion.

So the three parties in Congress are now four: Democrats, Republicans, true-believing conservatives and Trump.

But if Trump is the Republican nominee where do Republicans and true-believing conservatives go? Who will they vote for, a Democrat?

At this point in the election the best hope of Republicans and conservatives is to stop Trump at the convention. The hope is that Trump will not have enough delegates for a first ballot nomination, so the convention will pick someone else. That scenario is growing less likely because conventional Republicans are starting to endorse Trump.

It’s quite possible there will be an independent conservative candidate, someone who could appeal to the true believers (even better, someone who could unite traditional Republicans and true-believing conservatives).

If that’s not confusing enough then add one more name to the mix.

Former New York City Michael Bloomberg may also run as an independent. Like Trump he’s hard to box. He’s liberal on some issues, conservatives on others, but would likely be a voice for the establishment. He also has deeper pockets than Trump, a net worth that tops $41 billion.

So here is the possible lineup: Democrat, Trump, Bloomberg, and a conservative independent. Four candidates for president.

A full buffet for voters. Only imagine it’s a restaurant buffet that’s just been picked clean by a couple of tour buses. There’s food everywhere. The trays are empty. And it looks like a complete mess.

Two-party rule was predictable
Presidential elections in this century have been fairly predictable. The two parties debate, the people vote, and one candidate moves into the White House. The 2000 election broke that pattern when one candidate, Al Gore, won the popular vote but lost to George W. Bush in the Electoral College. (Thanks, in part, to the recently past Justice Antonin Scalia and Bush v. Gore.) Nonetheless the system largely worked.

But 2000 also exposed a constitutional flaw: The majority of American voters did not elect their president.

So in 2000 we learned that the Electoral College trumps the will of the people and picks a president based on the results from fifty separate state elections. Who ever gets the majority of the electoral college wins. Period.

But what happens when no candidate gets a majority? That’s where the Constitution is nutty. The 12th Amendment requires the House of Representatives to elect a president. Yep, that House. The same body that cannot pass a budget or govern. The Senate would elect the vice president. (Only in the House each state gets one vote. So, presumably, states with split delegations would not get a vote.)

The last time this happened was the election of 1824. Then, like now, the political parties were fractured (the Federalist party was gone) and four viable candidates ran for president. Andrew Jackson had the most votes and the most electoral college votes. But he did not have an outright majority. After much debate, the House picked his opponent, John Quincy Adams, who came in second. (One of the candidates, Henry Clay, was Speaker of the House. But he took fourth and only the top three finishers can be considered.)

The best case scenario in 2016 is that in a crowded field a presidential candidate unites the country and sweeps the electoral college. Cue the music.

Or one candidate gets 270 electoral votes or more along the lines of 2012. This could work because the Democrats have a demographic advantage in the Electoral College.

But these are not normal times. Election 2016 is already defined by chaos and not predictability. The same dysfunction that plagues the People’s House infects the entire body politic.

It’s impossible to predict the who will win what states if there are more than two viable candidates. Can a third party or forth party candidate win any states? Can they deny the Democrat or Republican nominee an Electoral College majority? Who knows.

One state presidency? Speaker Paul Ryan wins Wisconsin while the Democrats and Republicans tie. The House elects its own speaker as president. Graphic via 270toWin.Com

Why winning a single state could be enough to win the White House
A few scenarios (and try a few of your own, at 270towin.com).

Let’s start with Donald Trump wining the Republican nomination. He faces either Bernie Sanders or Hillary Clinton and the Democrats. Then Bloomberg. Then a conservative To-Be-Named. Someone who cannot stand Trump. (To see that thinking, peek at the Twitter hashtag #nevertrump).

Assume that Trump holds most of the states that Romney carried in 2012 (minus Texas). Then he adds New York, Nevada, and Michigan. These are states where Trump already has support. That is a total of 246 electoral votes. If Trump wins Texas it’s game over, he is the next president. But if a conservative wins one state, Texas, then no one wins. The election goes to the House and the third place winner could become the next president.

If history rhymes then we should consider the possibility of Speaker Ryan running for president (as did Speaker Henry Clay in 1824). If Republicans and Democrats are held to about 260 electoral votes each, and Ryan wins his own state, Wisconsin. The election goes to the House and the third place winner could become the next president.

One more scenario. Hillary Clinton and her running mate, Julian Castro, fall short of the magic 270 electoral votes. The election is thrown to the House but there is no consensus. She leads in ballot after ballot but a core group of conservatives, say, “never.” Meanwhile the Senate meets and elects Castro the Vice President. And on January 20, Castro becomes acting president and begins his administration. That is the 12th amendment’s solution to dysfunction.

Enough. It’s time for the Constitution to be a campaign issue. It’s not just the election of the president that needs debate, but the Senate, and the way the country elects a Congress. It’s time to rethink governance based on the needs of this century. Every candidate ought to promise electoral reform (as did Justin Trudeau in Canada’s recent election). America must get rid of the constitutional maze that undermines democracy itself.

Mark Trahant is the Charles R. Johnson Endowed Professor of Journalism at the University of North Dakota. He is an independent journalist and a member of The Shoshone-Bannock Tribes. On Twitter @TrahantReports

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