The Electoral College and Federalism

I was recently asked to participate in a workshop on federalism, and my first reaction was:  “Is there anything new that I can say?  Hasn’t that topic been beaten to death?”  Necessity worked its magic though, and I got to thinking about how the Constitution protects states.

At the Founding, the most important structural protection for federalism was a Senate comprised of appointees by state legislatures.  Not far behind were the doctrine of enumerated powers and the Tenth Amendment.  All of those safeguards were diminished by subsequent constitutional developments.  In some instances the Senate does protect states or a given state, and there are a few cases that strike down an Act of Congress for violating federalism, but these occasions are few and far between.

So what does protect states nowadays?  The answer is the Electoral College and the presidential nominating process.  Take Ohio.  It gets showered with attention by presidents and officials of both parties.  Why?  Because it is a swing state.  That is now worth a lot more than having a powerful member of Congress.  If the Electoral College were abolished and the winner determined by the national popular vote, no single state would get disproportionate attention. The same would be true for a given state if it went from a winner-take-all system to a proportional or congressional district method of allocating electors.

The question of which states are swing states is a product of demographics that are beyond their control.  Iowa and New Hampshire’s role in the presidential nominating process, however, is the product of a choice.  The Iowa caucus does more to protect Iowa as a state than anything else.  (Ethanol subsidies are a good example.)  Ditto for any state that get itself early in the calendar (such as Florida).

There are many other interesting federalism issues raised by the presidential selection system.  More on that next week.

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9 Responses

  1. mls says:

    What about the authority of state legislatures to initiate constitutional amendment under Article V?

  2. Brett Bellmore says:

    Some “constitutional developments” are amendments, and some are just governments deciding that they don’t feel like obeying parts of a constitution anymore. Most of the ones which have eroded state power are of the latter sort, I think.

    I think mls is right; The power to amend the Constitution without any federal veto is a very real one, though it has yet to be used. The question is whether, should the states attempt finally to resort to it, will the federal government permit it? Or make a final break with the federalist nature of our government?

  3. Shag from Brookline says:

    Brett”s:

    “I think mls is right; The power to amend the Constitution without any federal veto is a very real one, though it has yet to be used.”

    ignores the long road from initiating by a state(s) to actually amending the Constitution considering difficulties with the federal means for initiating an amendment.

  4. Brett Bellmore says:

    Shag, could you re-write that so I can parse it? I gather you think I’m ignoring something, but beyond that it doesn’t really parse.

    My opinion of the matter is that, while the power to call a convention and amend the Constitution without federal input or veto is, formally, sufficient to assure state supremacy in extremity, in reality it has a couple of points where the federal government can informally exercise a veto by an act of bad faith: For instance, the federal government could simply refuse to admit that the relevant number of states have indeed called for a convention.

    So I suspect that, should we reach the extremity where the states actually opt for a convention, we will find the attempt thwarted, and the last pretense of a genuine federal system in the US will be dead.

  5. Joe says:

    The checks were diminished as federal power grew, but they are still in place. In other nations, the national government often micromanage localities more than the U.S. does, e.g., while we have fifty states, each that regulates things in various ways. Federalism, unlike Franco, is still not dead.

    Brett has a concern that Congress will refuse to accept an amendment brought by the states. Since one never arose, this is something of a thought experiment. I don’t see Congress blocking it though would have to know the details of the amendment. Also, a problem here is that there has to be agreement on the text. Congress saying different states had different text and rejecting it on that grounds is acceptable. I think if the supermajority of states actually agree, there very well is likely to be the pressure for Congress, coming from the same states, to agree.

    But, we will have to wait.

  6. Shag from Brookline says:

    Joe’s ” … if the supermajority of states actually agree, … ” raises the thought experiment of the smallest population of such supermajority that might actually agree. Could that be a minority or less than two-thirds of the US population?

  7. Brett Bellmore says:

    One can trivially run the numbers, and determine that the 2/3rds of the states having the smallest population comprise well under a half the total population of the US. But then you go look at actual ratification votes, such as the (Largely futile) state rejection of the ERA, and you’ll find that the proportion of the states usually reflects well the proportion of the population. So this seems to be mostly a theoretical problem.

  8. Joe says:

    Sex is still not given strict scrutiny like race which is what the ERA would have basically done and to the degree sex is given strong protection under the Equal Protection Clause, it took at least until the 1990s for the USSC to set the protection (still less than) close to race. I don’t know how “largely futile” the lack of ratification was though there a supermajority of states was not enough (35 of 50).