Tuesday, March 25, 2008

John Yoo examines superdelegates

... now these unelected delegates are coming in for a close inspection, because neither Hillary Clinton nor Barack Obama can win their party's nomination without superdelegate support. ... there are a total of 795 superdelegates, none of whom are required to honor the will of the voters of their state at the party's convention.

Sound undemocratic? It is. That the 2008 Democratic nominee for president will be chosen by individuals no one voted for in the primaries flew for too long under the commentariat's radar. This from the party that litigated to "make every vote count" in the 2000 Florida recount, reviled the institution of the Electoral College for letting the loser of the national popular election win the presidency, and has called the Bush administration illegitimate ever since.

Democratic Party reforms in 1982 gave super-delegates about 20% of convention votes -- so that party greybeards can stop a popular, but politically extreme, candidate from seizing the nomination. The Democrats deliberately rejiggered their party's rules to head off insurgent candidates, like a George McGovern or a Jimmy Carter, who might be crushed in the general election.

So much for unfiltered democracy. In truth, the Democratic Party runs by rules that are the epitome of the smoke-filled room and ensure, in essence, that congressional incumbents exercise a veto power over the nomination.

This delegate dissonance wasn't anything the Framers of the U.S. Constitution dreamed up. They believed that letting Congress choose the president was a dreadful idea. Without direct election by the people, the Framers said that the executive would lose its independence and vigor and become a mere servant of the legislature. They had the record of revolutionary America to go on. All but one of America's first state constitutions gave state assemblies the power to choose the governor. James Madison commented that this structure allowed legislatures to turn governors into "little more than ciphers."

That's why, during the Constitutional Convention in 1787, the Framers rejected early proposals to follow any such model. New York delegate Gouverneur Morris explained that if Congress picked the president, he "will not be independent of it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence." Choosing the president would result from the "work of intrigue, of cabal, and of faction." After weeks of debate, the Framers vested the presidency with its own base of popular support by establishing a national election, saying that the president should represent the views of the entire people, not the wishes of Congress.

Press reports indicate that the Framers were right to worry. The Clinton and Obama campaigns are now competing hard to win superdelegates. Members of Congress no doubt will cut deals for themselves and their constituents.

But the historical record on this is not heartening. During the reign of the Jeffersonians, the progenitors of today's Democrats, the congressional caucus chose the party's nominee. It was a system that yielded mediocrity, even danger. Congressional hawks pushed James Madison into the War of 1812 by demanding ever more aggressive trade restrictions against Great Britain and ultimately declaring war -- all because they wanted to absorb Canada. It ended with a stalemate in the north, the torching of the U.S. capital, and Gen. Andrew Jackson winning a victory at the Battle of New Orleans.

"King Caucus" finally broke down when the system reached a peak of "cabal, intrigue, and faction." Jackson received the plurality of the popular vote in the election of 1824, but with no Electoral College majority the choice went to the House of Representatives. In what became known as the "corrupt bargain," House Speaker Henry Clay, who had come in fourth, threw his electors behind John Quincy Adams in exchange for being appointed Secretary of State. Jackson spent the next four years successfully attacking the legitimacy of the Adams administration and won his revenge in the election of 1828.

Our Framers designed the Constitution to prevent just this from happening. The Democrats have created an electoral system that echoes failed models from the American past, and threatens to sap the presidency of its independence and authority by turning it into the handmaiden of Congress instead of the choice of the American people.

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