American Democracy and the Rise of Trump

Andrew Sullivan says that the rise of Trump is the result of too much democracy. First he claims that the American political system was designed to thwart democracy:

To guard our democracy from the tyranny of the majority and the passions of the mob, [the Founding Fathers] constructed large, hefty barriers between the popular will and the exercise of power. Voting rights were tightly circumscribed. The president and vice-president were not to be popularly elected but selected by an Electoral College, whose representatives were selected by the various states, often through state legislatures. The Senate’s structure (with two members from every state) was designed to temper the power of the more populous states, and its term of office (six years, compared with two for the House) was designed to cool and restrain temporary populist passions. The Supreme Court, picked by the president and confirmed by the Senate, was the final bulwark against any democratic furies that might percolate up from the House and threaten the Constitution. This separation of powers was designed precisely to create sturdy firewalls against democratic wildfires.

This kind of argument about the intent and purpose of the American political system created by the Founders is widespread — and almost always historically inaccurate. The Constitution was the product of political compromises that addressed the concerns of 1787. The political system has since evolved in ways that have transformed major parts of the structure. In the case of the election of the president, the system never worked as intended by the Founders.  In the context of the nations of the world in 1787, the American Republic was a shining beacon of democracy (even if the Framers’ system completely fails contemporary democratic norms). Here are the facts behind Sullivan’s claim, often repeated elsewhere, that the Founders intended to create barriers to democracy:

• The status quo in 1787 was a confederation of equally represented sovereign states with no strong central authority — not unlike today’s United Nations. The chief architect of the Constitution, James Madison, strongly favored a national government representing the people, not the states, and proposed a president elected by the legislature (i.e. what became known as a parliamentary system).
• The alternative proposal was a president directly elected by the people. What we now call the electoral college was a convoluted compromise between the two proposals that no one particularly loved but at least answered the objections of the other methods — and the delegates were tired after months in Philadelphia and wanted to go home. Unlike direct election, the electoral college mechanism had the advantage (from the point of view of the south) of enhancing the power of slave-holding states by giving them a representation “bonus” by counting 60% of the number of (non-voting) slaves — which would prove crucial in maintaining southern control of the Federal government for most of the antebellum period.
• The members of Constitutional Convention believed that the presidential electors selected by the states would vote for a wide variety of candidates — essentially they would be the nominating body. With no majority winner,  almost always the decision would be made by the House of Representatives (voting by state), which was to chose from the top five finishers (later changed to three). From the very first contested election this assumption proved to be mistaken: instead the political parties decided who they would select as their candidate and picked electors who would vote accordingly. The two times in the past 225 years that the selection of the president was actually made by the House (in 1800 and 1824) created controversy that led to bitter partisan disputes and compromised the legitimacy of the president. Madison himself wrote in 1823, “The present rule of voting for President by the H. of Reps. is so great a departure from the Republican principle of numerical equality, and even from the federal rule which qualifies the numerical by a State equality, and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate & best friends.” Andrew Jackson, who won the vote but lost the election in 1824 (and got his revenge in 1828), in his second State of the Union address called for a Constitutional amendment to provide for the direct election of the President. As he put it: “the best interests of our country require the speedy adoption of some plan” to “secure to the people a direct choice of their” President.
• While the Constitution did not create a national right to vote, neither did it include property or tax-paying requirements–but simply left the matter up to the states. This decision was another matter of expedience given that the existing state voting qualifications varied widely. Although the Founders did not imagine giving the vote to women or slaves, they were within the democratic norms of their time.  Since state laws determined Federal voting eligibility, the system they created led, without the need for Constitutional amendment, to almost universal suffrage among white males by 1840–something that European democrats could only dream about and would not achieve for many more decades. (However, the voting for Senators was indirect — via votes for state legislators.  The change to directly elected Senators occurred via a constitutional amendment, in 1913.)
• The equal allocation of representation by state in the Senate was a necessary compromise to get the approval of Delaware and other small states — even though Madison did not like this and later regretted it. It was not because the Founders were afraid of too much democracy. Madison, Hamilton, and Jay later made many claims about the virtues of the system in the Federalist Papers, but these were opinion pieces intended to persuade a skeptical public to ratify the Constitution, not an open account of the compromises behind the document.
• The role of the Supreme Court was not specified in the Constitution, and its power to invalidate acts of Congress was simply asserted by John Marshall in 1803 (16 years after the Constitution was drafted). This power was used sparingly (the next time was in 1857, in the Dred Scott decision).
• The Constitution is so difficult to change through its built-in amendment procedure (Article V) that Supreme Court decisions have been the major way that the Constitution has changed (for example, the creation of the right to privacy, the one person one vote principle, and the individual right to gun ownership). The unelected justices, with lifetime tenure, have been involved in law-making in a way that would have surprised the Founders.

Sullivan continues:

Over the centuries, however, many of these undemocratic rules have been weakened or abolished. The franchise has been extended far beyond propertied white men. The presidency is now effectively elected through popular vote, with the Electoral College almost always reflecting the national democratic will. And these formal democratic advances were accompanied by informal ones, as the culture of democracy slowly took deeper root. For a very long time, only the elites of the political parties came to select their candidates at their quadrennial conventions, with the vote largely restricted to party officials from the various states (and often decided in, yes, smoke-filled rooms in large hotel suites). Beginning in the early 1900s, however, the parties began experimenting with primaries, and after the chaos of the 1968 Democratic convention, today’s far more democratic system became the norm.

Sullivan is correct that the “culture of democracy” has largely taken root: by and large, Americans believe in the core democratic principles that 1) every citizen has a right to an equally valued vote and 2) decisions are generally made by majority vote. However, many aspects of our system continue to violate these principles. Most Americans do not believe that the candidate receiving the most votes should be declared the loser–as happened in 2000. Many polls over the years have shown that 70% or more of the public supports a directly elected president instead of the Electoral College system.

But Sullivan’s core argument is about the presidential primary system — whose operation is completely outside the Constitution — which foresaw neither political parties nor primaries, which are government-run elections for private political parties–a system that exists in no other democracy.

The direct primary was invented in the late 19th century and was adopted by almost all states by 1915. That story will be the topic of a future post–but suffice it to say it was as much about maintaining control as it was about democratization (otherwise, why would the party politicians have adopted the necessary state legislation?). Even after primaries were used for almost all other offices, the presidential contest was the last vestige of the caucus and convention, the nomination system that had preceded the direct primary. That system persists today as the national party conventions, but it has become completely vestigial. The press and commentators get nervous at the possibility that the conventions might do what they are intended to do: have the delegates freely select a candidate. Thus, like the electoral college itself, the party conventions are a relic of a past design that no longer functions as intended — and yet we somehow view both as indispensable. Today’s presidential nomination is controlled both by the internal rules of each of the two official parties and by laws adopted by each of the 50 states (and, with regard at least to campaign finance, Federal legislation). Thanks to these variety of actors, there is enormous variation in voter qualifications (e.g. party members only or not), whether the delegates are chosen by public election, meetings (caucuses), or a combination of the two, and how votes are translated into delegate counts.

Sullivan is correct that the shift to Presidential primaries, which began with the 1972 election, has opened the field of potential Presidential candidates to almost anyone — even non-politicians, even Donald Trump. However, the possibility of a Trump victory is not the result of too much democracy, but because the system fails to meet basic democratic norms. How so?

In every other democracy, parties are not forced to open up their nomination to non-members. At the same time, in other democracies non-official parties do not face as much discrimination in terms of getting on the ballot and participating in official debates. Understanding the long odds against non-official candidates in America, Trump wisely chose to seek the Republican nomination rather than run as a Reform Party candidate, as he seriously considered in 2000 — even though he has been occasionally a registered Democrat and previously expressed liberal views far out of line of the current Republican party leadership and platform. Similarly, Bernie Sanders, who never was always elected as an independent throughout his long political career, chose to pursue the Democratic Party nomination rather than a quixotic Green Party effort where the likeliest impact would be to “spoil” the election (as Ralph Nader was accused of doing in 2000).

The barriers to the success of a non-official party candidate are formidable:

• Merely getting on the ballot requires close to a million signatures (more when considering the need to provide insurance against potentially disqualified signatures) and millions in lawyer’s fees. Moreover, the earliest filing deadline (Texas) is in May, well before the official parties hold their conventions, making it impossible for groups dissatisfied with the official party nominees to run an alternate candidate (as might otherwise be the case in 2016, when both official party candidates have high negative ratings).
• The non-official parties that are willing to jump through these hoops tend to represent political extremes. Other potential candidates (or movements, such as the Tea Party), choose the more pragmatic option of using one of the official labels.
• The Commission on Presidential Debates, controlled by the two official parties, excludes all outside candidates. In 1992 the official candidates permitted Ross Perot to debate, and partly as a result he won 19% of the national vote, the highest share of any candidate not labeled as Democrat or Republican since former president Teddy Roosevelt 80 years earlier. Subsequently, they created a rule that they would exclude any candidate that did not have at least 15% national support in five national polls. The Libertarian and Green parties are currently suing the CPD to include all candidates.
• There has not been a President elected without either the Democratic or Republican label since 1850, and it is thus hard to imagine that one could be–although many voters in 2016 would like to have another choice. The difficulty may more be in getting the media to take an alternative seriously, but many voters are open to a “third party” — one poll found that 55% of voters, and 91% of those under 28, favor including other choices.
• But with more than two candidates in a system that does not require a majority winner, the difficulty is the “spoiler” problem: the fear that voting for your first choice will get your last choice elected.
• The presidential race complicated by the electoral college. With three or four viable candidates, the outcome would be unpredictable — and may not necessarily reflect people’s top choices. With the “unit rule” (winner-take-all in each state), a candidate could win all of a state’s electoral votes with just a third (or even less) of the vote. If more than two candidates were to win electoral votes, there could be no electoral vote majority and the race would be decided by the House. Although this was the Founder’s design, it was already long obsolete by 1823 when Madison advocated its replacement.

To sum up: the Democrats and Republicans have an iron grip on the Presidency supported by rules of their own making — but at the same time because of the primary system their parties are open to capture. In fact, there is a long tradition of party capture: FDR brought labor unions and African Americans into the historically conservative and racist Democratic Party in the 1930s. Movement Conservatism captured the Republican Party completely by the 1990s and drove out the last Northern liberals, who were the more rightful heirs to the party’s origin as those “united to restore the Union to its true mission of champion and promulgator of Liberty rather than propagandist of slavery.”

The apparent capture by the outsider (and erstwhile Reform Party candidate) Trump, and the attempted capture by the independent Bernie Sanders, are just the latest attempts to transform the parties. The difficulty is that there is no fallback option when an outsider captures an official party nomination.

Trump’s capture of Republican delegates was aided by the party’s use of delegate allocation systems that give a bonus to the plurality winner. Presidential primaries are not a kind of preliminary national vote, but a series of low-turnout state elections (and even lower-turnout caucuses) that attract the most committed voters. Turnout in primaries has never exceeded 1/3 of the electorate since the system was established in 1972 (earlier data). In many states, independent voters are excluded from the primaries. (In recent national polls, about 40% of voters identify as independents. I have found no data on national registration by party, which is what determines primary voting eligibility.)

Sullivan then argues that “GOP elites have every right to deploy whatever rules or procedural roadblocks they can muster” to block Trump and asks them to “resist any temptation to loyally back the nominee” but instead fight “Trump at every opportunity, unite with Democrats and Independents against him, and be prepared to sacrifice one election in order to save their party and their country.” Unfortunately for those who oppose Trump, it hasn’t so far worked out that way. Despite the unflattering remarks many Republican politicians have made about Trump, they cannot imagine a realistic exit possibility. Thus the Republican National Committee and many party leaders are cooperating with him.

Trump would have much less of a chance of victory if the US had a directly elected president, with a runoff should no candidate receive a majority, as is standard in all other countries that elect a president (or, better yet, ranked choice voting as they have in Ireland). This would result in an election with multiple candidates. Conservatives who disagree with Trump’s policies or his character would be free to support alternative candidates. Equally important, the voters that Sanders mobilized would have a candidate expressing their views in the (general) election. Having multiple candidates could well boost turnout above the 50-57% of the voting age population that has been the norm since 1972 in Presidential election years (a worst-in-class rate among democracies). Higher turnout could have a significant effect on the election, particularly since those who do not vote are disproportionately young, poor, and inclined to vote Democratic. I for one cannot imagine that Trump would have much of a chance of winning a direct, multicandidate election–with a majority rule requirement–given that 60% of the public views him unfavorably (vs 35% favorable) and 42% views him as highly unfavorable.

To provide some specific examples from other countries that elect a president: Costa Rica had 13 candidates in its last presidential election in 2014. The plurality winner had less than a 1% margin over the runner-up, but the second round of voting proved that he was the choice of 78%. The turnout was 64% of the voting age population (data from the Institute for Democracy and Electoral Assistance), a level not matched in the U.S. since 1908.

The last French presidential election, in 2012, had ten candidates in the first round. The narrow plurality winner, Francois Hollande, was also the majority winner in the second round. Turnout was 71% of the voting age population, a level the U.S. has not seen since 1900.

The last Argentine presidential election, in 2015, had six candidates. The plurality winner lost the second round election. Turnout was 81% of the voting age population in both the first and second rounds.

A future post will consider what would happen should Trump win. Sullivan is clear on this point: “In terms of our liberal democracy and constitutional order, Trump is an extinction-level event.”