Why Congress slept

|The Volokh Conspiracy |

As I explained Monday, if no presidential candidate wins a majority in the electoral college and the election is thrown into the House of Representatives, the constitutional design encourages assassins to strike. A dead candidate cannot be replaced on the House's ballot, so calculating killers could disenfranchise voters and select the winner in a way that they could not at any other point in the process. It is hard to imagine a worse way to choose a president.

Admittedly, this is a remote possibility. As such, it is far from the biggest problem with our electoral system. It is, however, one of the easiest ones to fix. All Congress has to do is pass a simple law pursuant to Section 4 of the 20th Amendment. As I described on Tuesday, Section 4 was written specifically to allow substitutions for dead presidential candidates when elections are thrown into the House.

But 83 years on, Congress has never used its power. Why not?

Part of the reason lies in Section 4's origin. The 20th Amendment was ratified in 1933, but Section 4 was drafted in 1926. Robert LaFollette had run a strong third-party campaign in 1924, getting people thinking at least a little bit about deadlocked elections, and he had died the next year. But by 1932, the two-party system was back in full swing. The prospect of an election being thrown into the House, never prominent, had faded further away.

More important, Section 4 was always just a peripheral part of the 20th Amendment, whose popular name (the "Lame Duck Amendment") reflected its main thrust. When Section 4 came up for debate, comments were very favorable, but these were very few and very far between. And the lame-duck provisions remained very salient in 1933 as the Hoover-Roosevelt transition put the theme of swifter, more responsive government to the forefront. With the New Deal Congress producing a flurry of legislation to deal with the Great Depression, electoral arcana could not have been much further out of mind.

The Great Depression continued its hold on the national agenda for many years, and then was replaced by the similarly absorbing World War II and Cold War. The energy that motivated an earnest House committee to write Section 4 in 1926 became a distant memory.

When the 25th Amendment's presidential disability provisions were being debated in the 1960s, some people wanted just to empower Congress to pass legislation, rather than trying to write a specific procedure into the Constitution. Sponsor Birch Bayh rejected this idea, citing Section 4's failure to bear fruit.

There are other, more general reasons that help explain why Congress has not acted. Foremost among them is that Congress tends to act in response to pressing issues, not hypothetical ones. Put more cynically, there are many horrible things actually happening right now, and if Congress isn't doing anything about those things, why would it do anything about some merely theoretical crisis that may never happen?

Even when issues are pressing, Congress tends to act only when there are powerful constituencies demanding action. I experienced this firsthand years ago when I uncovered a constitutional argument that there is a 50-square-mile swath of Idaho where one can commit felonies with impunity. Even after my theory had been published and gotten national media attention, I could barely get anyone on the Hill even to acknowledge my communications. After my theory inspired a best-selling novel by C.J. Box, a few people on the Hill finally talked to me about it … to explain why nothing would be done.

I thought that this time might be different, because the prospect of an assassin controlling the outcome of a presidential election is orders of magnitude worse than an isolated crime in the backwoods of Idaho. But despite that, and despite the relatively simple solution to the electoral dilemma, most of my communications have gone unacknowledged. Those few who have responded (including my representative and my more-on-the-ball senator) were gracious but gave no indication of an eagerness to act.

It is rare that something ever happens in Washington just because it is a good idea. This is probably as it should be, given that one person's good idea is another person's crackpot waste of time. Broad, powerful support is a proxy for quality, and as of now I am just one person with (at best) a good idea.

But there are some objectively good ideas that fall between the cracks, because it is in their very nature not to attract the backing of interest groups. Section 4 legislation is a good example: It offers no obvious payoff for anybody. To be sure, this cuts both ways. If and when Section 4 legislation starts to move forward, it would not face any particular partisan opposition, or disturb any inter-branch sensitivities. No one would have any particular ax to grind against it, in other words, so it could move through the legislative process more easily at that point. But something would have to start it moving forward.

Unfortunately, the only thing that would be sure to pique interest in Section 4 would be that an election was thrown into the House and one of the candidates died. At that point, though, the other two candidates' supporters would have the most powerful incentive imaginable to defeat the legislation.

There would be a sweet spot—either right before an election looked likely to be thrown into the House, or right after an election in which it almost had been—during which all sides would see the benefit of a law and nobody would have reason to oppose it. I lack faith that Congress would act promptly at that moment, though. It is no coincidence that the only Section 4 legislation ever introduced (two bills from Sen. Paul Simon) came in the wake of the 1992 election and Ross Perot's strong third-party candidacy. But it is also no coincidence that both bills went nowhere.

Still, I am not ready to give up. In my final post, tomorrow, I will offer an idea for mobilizing support for a Section 4 law.