I’m optimistic about the Republican Party. Does that surprise you? Well, let me qualify that. When I say I’m optimistic about the Republican Party, I am referring of course to the old joke in which the pessimist says, “Geez, things sure can’t get any worse,” and the optimist replies, “Oh, yes they can!” When the subject is today’s GOP and the conservative movement, things can always get worse. Having attempted virtually every dishonest and cynical trick in the book under existing rules, they have decided now that the problem is not their dishonesty or cynicism, but the existing rules, so the new task is to change them.
You’re familiar by now with the broad contours of how the GOP wants to change the Electoral College. OK, in case you’re not: They seek in six states to apportion the electoral vote according to congressional districts won instead of to the presidential candidate who won the state overall. For example, Pennsylvania has 18 congressional districts. Mitt Romney won 12 of them, and Barack Obama six. So even though Obama won the state overall by around five points, Romney would “carry” Pennsylvania, 12 electoral votes (EVs) to six (actually, 12 to eight—every state has two more EVs representing its two Senate seats, and Obama, as the overall winner, would get those; so nice of them!).
The six states, as you might guess, are not Wyoming, Montana, Idaho, Alaska, and the Dakotas. They are the aforementioned Keystone State along with Florida, Ohio, Wisconsin, Michigan, and Virginia. The Virginia plan adds the clever wrinkle of giving those extra EVs not to the overall winner, but to the candidate who won the most congressional districts.
I think you can see where this is going. Obama carried fewer districts than Romney in all these states, but he won them by running up big margins in his congressional districts. This fact is in itself, to a considerable extent, a reflection of the reality that Republican state legislatures have drawn congressional district maps that pack as many Democrats into as few districts as possible. The electoral demographer Alan Abramowitz calculated that if these states had used this method last year, Romney would have won the election 271-267. He also reckoned that if every state had counted EVs this way, Romney would have won 276-262.
Obama received, remember, 5 million more votes than Romney.
There have been efforts in the past to fix or eliminate the Electoral College. It was almost eliminated—with bipartisan support—in the early 1970s. That proposal was advanced by two Democratic legislators, Senator Birch Bayh and Congressman Emmanuel Celler. It is true that they put it forward after the Republican, Nixon, won a lopsided Electoral College margin, far greater than his narrow popular vote margin. But interestingly, Nixon supported it. The vast majority of Republicans did, in the House anyway.
It died where every decent idea dies—in the Senate. But the point is that it was an honest reform, with the chips falling where they may. The same can be said of the current national popular vote effort, which would ensure that the winner of the most votes nationwide became president.
But this is just vote-rigging. Open cheating. It is astonishing, I mean absolutely jaw-dropping, that a major party chairman should openly endorse such an openly crooked scheme, as Reince Priebus has. It’s so Third World 1950s, like something Sukarno might have done, probably did do, in Indonesia to make sure the competing ethnic group didn’t win elections. He sure better be asked, the next time he goes on a Sunday show, how he purports to defend a plan that would have made someone president while receiving 5 million fewer votes than the other guy.
Rule-changing, as Donovan Leitch might have put it, is bound to be the very next phase, and not just on this front. The nullification craziness, mostly talk during the first Obama term, is inching toward codification. State legislators in Mississippi are pushing a bill to establish a (get this name) Joint Committee on the Neutralization of Federal Law to review federal statutes for their “constitutionality.” We don’t know how far this effort will get. But it is Mississippi, so who knows? But if not Ole Miss, then South Carolina or some other state will almost surely attempt to nullify some federal law in the next four years.
The D.C. Circuit Court panel decision Friday that Obama’s recess appointments to the National Labor Relations Board were unconstitutional is another amazing instance of the right just changing rules it didn’t like. First, Republicans in the Senate set records blocking Obama appointees to various executive positions. Then Obama makes some recess appointments. Then they get three conservative judges, led by David Sentelle, Ken Starr’s favorite judge, to rule that “recess” has a very specific constitutional meaning, so that Obama can’t make the appointments the Republican Senate had been denying him from making in the first place.
Adam Serwer of Mother Jones did an excellent job yesterday of detailing the potentially vast implications of this ruling, which could reach far beyond labor law (as if that weren’t enough). The Obama administration will appeal this to the Supreme Court. Antonin Scalia and Samuel Alito usually have an expansive view of presidential power. But will they in a high-profile case when the president is named Obama? Scalia also once took an expansive view of the commerce clause, and we all know how that ended up when it came time to decide health care.
We could toss all this information onto the ever-growing “Oh, those crazy Republicans” slag heap, have a laugh, and let it go. But this is concerted and serious. Rules, laws, customs, and norms that we have all abided by for centuries (the Electoral College and the primacy of federal law) or decades (recess appointments) have simply been producing too many outcomes conservatives don’t like. Most people, and movements, would try to change themselves so that they could maybe win under the long-agreed-upon rules. But conservatives have a cleverer way. Just make new rules. You better believe things can get worse.