Tuesday, November 29, 2016

This is what democracy looks like - Peter Binary - Electoral College

The Electoral College is coming up fast.  It's important because Trump isn't President yet, it's a vote taken on Dec 19th that will seal our fate.  Peter Binary associate professor of political science at the City University of New York wrote an informative article about the Electoral College and looks at various aspects of petitioning them not to vote for Trump. Thoughtful reading from The Atlantic.  It's another bootleg, but I am posting most of it here with some added comments since Peter overlooked a few profoundly (national security) important issues that demand looking at before Dec 19.  Why elect an impeachable president?

Dear Atlantic editors,  will substantially reduce the following to acceptable limited quotes after Dec 19th, I beg your understanding.  CC/PM

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The Electoral College Was Meant to Stop Men Like Trump From Being President
The founders envisioned electors as people who could prevent an irresponsible demagogue from taking office.


Americans talk about democracy like it’s sacred. In public discourse, the more democratic American government is, the better. The people are supposed to rule.

But that’s not the premise that underlies America’s political system. Most of the men who founded the United States feared unfettered majority rule. James Madison wrote in Federalist 10 that systems of government based upon “pure democracy … have ever been found incompatible with personal security or the rights of property.” John Adams wrote in 1814 that, “Democracy never lasts long. It soon wastes, exhausts and murders itself.”

The framers constructed a system that had democratic features. The people had a voice. They could, for instance, directly elect members of the House of Representatives. But the founders also self-consciously limited the people’s voice.

The Bill of Rights is undemocratic. It limits the federal government’s power in profound ways, ways the people often dislike. Yet the people can do almost nothing about it. The Supreme Court is undemocratic, too. Yes, the people elect the president (kind of, more on that later), who appoints justices of the Supreme Court, subject to approval by the Senate, which these days is directly elected, too. 

But after that, the justices wield their extraordinary power for as long as they wish without any democratic accountability. The vast majority of Americans may desperately want their government to do something. The Supreme Court can say no. The people then lose, unless they pass a constitutional amendment, which is extraordinarily difficult, or those Supreme Court justices die.

That’s the way the framers wanted it. And, oddly, it’s the way most contemporary Americans want it too. Americans say they revere democracy. Yet they also revere those rights—freedom of speech, freedom of religion, the right to bear arms—that the government’s least democratic institutions protect. Americans rarely contemplate these contradictions. If they did, they might be more open to preventing Donald Trump from becoming the next president, the kind of democratic catastrophe that the Constitution, and the Electoral College in particular, were in part designed to prevent.

Donald Trump was not elected on November 8. Under the Constitution, the real election will occur on December 19.  That’s when the electors in each state cast their votes.

The Constitution says nothing about the people as a whole electing the president. It says in Article II that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Those electors then vote for president and vice-president. They can be selected “in such Manner as the Legislature thereof may direct.” Which is to say, any way the state legislature wants. In 14 states in the early 19th century, state legislatures chose their electors directly. The people did not vote at all.  

This ambiguity about how to choose the electors was the result of a compromise. James Madison and some other framers favored some manner of popular vote for president. Others passionately opposed it. Some of the framers wanted Congress to choose the president. Many white southerners supported the Electoral College because it counted their non-voting slaves as three-fifths of a person, and thus gave the South more influence than it would have enjoyed in a national vote. The founders compromised by leaving it up to state legislatures. State legislatures could hand over the selection of electors to the people as a whole. In that case, the people would have a voice in choosing their president. But—and here’s the crucial point—the people’s voice would still not be absolute. No matter how they were selected, the electors would retain the independence to make their own choice.

It is “desirable,” Alexander Hamilton wrote in Federalist 68, “that the sense of the people should operate in the choice of” president. But is “equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station.” 

These “men”—the electors––would be “most likely to possess the information and discernment requisite to such complicated investigations.” And because of their discernment—because they possessed wisdom that the people as a whole might not—“the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

As Michael Signer explains, the framers were particularly afraid of the people choosing a demagogue. 

The electors, Hamilton believed, 
would prevent someone with “talents for low intrigue, and the little arts of popularity” from becoming president. And they would combat “the desire in foreign powers to gain an improper ascendant in our councils.” 

They would prevent America’s adversaries from meddling in its elections. The founders created the Electoral College, in other words, in part to prevent the election of someone like Donald Trump.

To modern American ears, it sounds insanely undemocratic for electors to ignore the will of the people of their state. But were Hamilton alive, he might wonder why Americans find this undemocratic feature of the Electoral College so outrageous while taking its other undemocratic features virtually for granted. 


For that reason, too, the Electoral College does not always reflect the popular vote. In two of the last five presidential elections, in fact, the candidate who received the most votes—Al Gore in 2000 and Hillary Clinton in 2016—has lost the Electoral College. Americans are mildly but not profoundly disturbed by this. Most of the people protesting Donald Trump’s election are not protesting because he lost the popular vote. When George W. Bush became president after losing the popular vote in 2000, there were protests, but no real question about the inevitability of his taking office. In this way, as in many others, Americans comfortably accept undemocratic elements of America’s system of government even as they profess publicly that democracy is sacrosanct.

In truth, Americans are wedded less to democracy than to familiarity. They accept those undemocratic features of the Electoral College, and of American government in general, to which they’re accustomed. They value things as they are.

This makes sense. Americans are used to choosing presidents in a particular way. As the University of Michigan constitutional law professor Richard Primus pointed out to me, they’re like a family that for as long as anyone can remember has been playing a board game by a certain set of rules. What happens if, in the middle of a game, one player consults the instructions, finds that the actual rules are different, and proposes suddenly abiding by them instead? The other players—especially those who would be disadvantaged by the change—will likely refuse.

Were the electors to meet on December 19 and decide that Donald Trump is unfit to be president, all hell would break loose. Trump’s supporters, and even some who opposed him, would say the election had been stolen. 

Their worst fears about America’s “rigged” system of government would be confirmed. The president who the electors chose—even if it were Hillary Clinton, who beat Trump by over a million votes—would lack legitimacy in the eyes of much of the public. 

It’s unclear whether such a president could effectively govern. Violence might break out. Moreover, once the precedent was set, future electors would become more likely to act independently again. The process of choosing them would grow fraught. America’s entire system of presidential elections would grow unstable.

It’s a terrifying prospect. The prospect of a Trump presidency, however, is terrifying too, terrifying in unprecedented ways. Which is why, for the first time in modern American history, there’s a plausible case for urging the electors to vote their consciences. The case is not overwhelming. But it’s not absurd. 

It all depends on how dangerous you think President Trump would be.

Could the danger posed by electing Trump exceed the enormous danger posed by stopping him? It could, for four reasons.

The first is climate change. Trump has repeatedly called it a “hoax.” He’s vowed to “cancel” America’s obligations under the climate agreement signed last year in Paris, . . .

The second reason to think that allowing a Trump presidency might be more dangerous than overturning it is the threat of nuclear war. … In August, MSNBC’s Joe Scarborough reported that, during a private meeting with a “foreign policy expert,” Trump had asked the expert “three times, in an hour briefing, ‘Why can’t we use nuclear weapons?’” In March, Trump asked Chris Matthews, “Somebody hits us within ISIS — you wouldn’t fight back with a nuke?” Trump has also repeatedly declared his desire to be “unpredictable” 

The third reason it’s not crazy for electors to consider defying the popular will in their states is the prospect of what Trump might do in the event of a terrorist attack. … We don’t know how Trump would respond in a moment of national hysteria, when restricting press freedom and persecuting unpopular minorities became seductively easy. We do know that, based on his past statements, he’d be less restrained by the Bill of Rights than any president in recent memory.

The (fourth) reason it’s worth debating an Electoral College rejection of Trump is the potential that his presidency could spark a constitutional crisis. During the campaign, in a stunning break from American tradition, Trump repeatedly suggested that he might not accept the outcome. As one Trump ally told Politico, “If he loses, [he’ll say] ‘It’s a rigged election…I can’t really picture him giving a concession speech, whatever the final margin.”
If defeated in his bid for a second term, would Trump leave the White House? Would he leave if Congress impeached him? Would he abide by a decision of the Supreme Court that thwarted his agenda? “I can easily see a situation in which he would take the Andrew Jackson line,” declared the eminent libertarian-conservative legal scholar Richard Epstein in June. “[Chief Justice] John Marshall has made his decision; now let him enforce it.”

The problem with all these hypothetical scenarios is that they’re just that: hypothetical. The dangers posed by a Trump presidency are speculative. The dangers posed by using the Electoral College to forestall a Trump presidency are more certain. Moreover, some of the very characteristics that make a Trump presidency so frightening also make his response to being defeated by the electors frightening. If Trump was prepared to the contest defeat on November 8, it’s hard to imagine him accepting it on December 19.  

Luckily for Trump, the chances of the electors actually defeating him on that date are extremely slim. Two electors from states that supported Hillary Clinton are reportedly trying to convince their colleagues from states that supported Trump to vote for other Republicans, thus denying Trump a majority and sending the presidential election to the House of Representatives.

But these days, electors are not the independent-minded figures Hamilton envisioned. They’re party activists chosen for their loyalty. Many states even have laws requiring electors to abide by the popular vote, though David Pozen, a law professor at Columbia (and author of a smart recent blog post on Trump and the Electoral College) told me that such laws may well be unconstitutional.

If it’s so unlikely that the electors would defeat Trump, why is the topic even worth discussing? Because, given Trump’s likely ascension to the presidency, Americans must talk differently about democracy itself. 

Yes, the democratic features of America’s political system are precious. But so are some of the undemocratic ones, the ones that prevent people’s basic rights from being taken from them by a show of hands. 

Right now, the nature of American public discourse—which treats democracy as an unambiguous good—makes that difficult to say. Rarely do Americans publicly acknowledge the tradeoff between democracy and liberty, between popular will and minority rights, which so concerned the framers. 

If Trump threatens the rights of Muslims or journalists, if he pressures the Federal Reserve or defies the Supreme Court, he will likely do so in democracy’s name. He may have public opinion on his side. If Americans can’t defend their system’s limitations on democracy, they’ll have trouble resisting him.

Democracy is a crucial component of American government. But, as Fareed Zakaria has argued, more democracy isn’t always better. For most of American history, political parties were not internally democratic. They aren’t in most democracies around the world. Yet during the primaries, when GOP elites sought to block Trump’s nomination, the media generally described their efforts as undemocratic. Which made them almost impossible to publicly defend.

I didn’t defend them either. I was wrong. Before this election, I supported abolishing the Electoral College. Now I think America needs electors who, in times of national emergency, can prevent demagogues from taking power.

Go ahead and call me an elitist; Donald Trump has changed the way I view American government. Before this year, I would have considered Hamilton’s demand for independent-minded electors who could prevent candidates with “talents for low intrigue, and the little arts of popularity” from winning the presidency to be antiquated and retrograde. Now I think the framers were prescient and I was naïve. Eighteen months ago, I could never have imagined President Donald Trump. Now I’m grateful that, two hundred and twenty-seven years ago, they did.


But will it do any good?

PETER BEINART missed some profoundly important issues that justify American’s raising a big stink with their Electors before Dec 19th, even if we don't expect to divert a Trump Presidency.  

Fifth reason)  Extensive evidence of Russia’s manipulation of our American election.  We deserved to know more about that before Dec 19.
Six reason)  Another is Trump’s immense business entanglements with Russian and Chinese nationals who are in turn linked to their governments which are sworn enemies of the USA.  
Seventh reason)  Insurmountable conflicts of interest. Trump’s all about his own brand and business - Isn't America’s President supposed to be full-time committed to being President of the United States of America.
Eighth reason)  The effort will put Trump and his team on notice that America is aroused and on edge, distrusting of this Trump Administration and that we will be watching and ready to defend genuine traditional American values against this blatant takeover attempt by corporate oligarchs.  It will temper their behavior.  No public outcry of substance will result in a green light for them and great damage to our ways.  Americans it's your move.  Democracy (what we have of it) use or lose it.
What’s going on here America?  Have the Koch bros’ and pals won their long struggle and succeeded in their hostile takeover bids for our American Government?  

We are on the eve of becoming the Corporation of the United States with a captain sitting on a gold encrusted throne in some New York high rise and the US military at his disposal?  Will Trump's coming assault on our institutions be opposed by a newly engaged and aware public showing up in numbers not since in decades?  Will some old stock American common ground pull us back from this precipice?  

Are salt of the earth Americans really in favor of handing over our government to a Russian Obligate Oligarch on a gold throne?  

The terror of this new Administration is that they believe that Personal Faith Trumps Facts.  

They have publicly rejected any ethical standards of objective honesty, instead doubling down and raging against anyone who presents objective scientific facts they don't like.  Worse messengers who honestly explain our Earth processes are treaded as enemies, worth the most ruthless malicious treatment.  This is their standard operating procedure.  It is already being normalize and no one dares call Bannon the serial liar that he is.  Etc, etc.

I appreciate that I haven't even touched on the human side of the coming Trump Administration, civil liberties, basic human rights in many regions, the fear that the civil war mongers will have their day.  But there is only so much one person can be present to.  Besides, for whatever deterministic reasons it's our planet and the flow of evolution that I understand better than most and that I continue wanting to write about, although I've been diverted of late.
Rescuing America will need thousands of concerned, passion individuals, people willing to help fill the void and step up with whatever it is they are best suited to offer.  Simple letter writing if done in massive enough numbers, coupled with focused protests have accomplished amazing things.  It can never succeed if we don't trying - plus the trying at least helps moderate the damage inflicted.

We The People, it's what the oligarch fear most.  That's why they put so much effort into pulling the wool over our eyes.

Their is power in numbers.  It's all we got these days so lets cultivate it.


The Electoral College Was Created to Stop Demagogues Like Trump

Michael Signer Nov. 17, 2016
Michael Signer is the Mayor of Charlottesville, Virginia, an attorney, and a lecturer at the University of Virginia. His most recent book is Becoming Madison

Trump promises to bring to the presidency precisely the 'tumult and disorder' that Hamilton warned against
Since Nov. 9, Donald Trump has been described as our “President-elect.” But many would be shocked to learn that this term is actually legally meaningless. The Constitution sets out a specific hurdle for Trump to ascend to the presidency. And that will not happen until Dec. 19 when the members of the Electoral College meet in their respective states to vote for the President.
It’s these electors who actually hold power under the Constitution to select Donald Trump as president. They should take that responsibility very seriously. They owe it to all Americans to deliberate on their choice in the manner required by the Constitution …

Dave Wasserman of the Cook Political Report has been crunching the numbers and it looks as if Hillary Clinton will win the popular vote by 2.5 million votes. That margin is greater than the following post-World War II popular vote/electoral college winners…

Trump & Putin. Yes, It's Really a Thing

By  JOSH MARSHALL  Published  JULY 23, 2016

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