The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I explained that once a presidential election is thrown into the House of Representatives, there is no way to replace a candidate who dies. This would disenfranchise an entire side of the election, so it provides an unfortunately heightened incentive for assassins. At every other point in the process dead candidates can be replaced, but not here. Section 4 of the 20th Amendment allows Congress to provide for this situation – to allow for substitutions – but Congress has never used that power.
Section 4 was a rare example of Congress being proactive, dealing with a problem that was only hypothetical. The scenario I presented yesterday – an assassin removing a party from the election entirely – would be horrendous and is well worth preventing. But Congress generally takes action only when a problem has actually reared its head. It also tends to act only when powerful interest groups and constituencies are pressing for action; nothing much ever happens just because something is a good idea that everyone can agree on.
In future posts I will present a strategy for getting around this congressional tendency so that we can dampen this incentive to assassinate (just so you know, it involves YOU). But today, I want to look at the history of Section 4 to see how it is that Congress managed to get it right that one time.
The last time a presidential election was thrown into the House for a contingent election was in 1824. Nobody had won a majority in the electoral college, so the top three candidates (John Quincy Adams, Andrew Jackson and William Crawford) proceeded to the House contest. Crawford had an impressive resume: senator, ambassador to France, secretary of war and sitting secretary of the Treasury. Unfortunately, he had suffered a paralytic stroke earlier in the campaign. It is easy to believe that things would have unfolded very differently if he had been healthy – or if he had died and there had been some way to replace him. Crawford still managed to win four states' delegations in the contingent election, but that was only good enough for third place.
Section 4 was not conceived until more than 100 years later. Nobody in Congress had ever lived through a contingent presidential election, and there had never been one with a candidate who died. Some people might have recalled the last time a major candidate had died in a regular election – Horace Greeley in 1872 – but that was pretty far removed from the public consciousness, too.
Section 4 is thus a striking counter-example to the notion that Congress deals only with pressing problems and does not tackle hypothetical issues.
To be sure, the amendment's main focus was solving a problem that actually was pressing – the awkward calendar with which Congress and the presidency had been saddled. Before the 20th Amendment, the lame-duck Congress (including defeated incumbents) would convene a month after the election for a lame-duck session lasting up to four months until the end of the term in March. The new Congress typically did not convene until December of that year, a whopping 13 months after it had been elected.
Starting in 1924, Sen. George Norris pushed for constitutional reform: beginning terms in January instead of March and having the new Congress convene at the beginning of the term. This drastically reduced the time available for lame-duck mischief and got the new Congress acting in two months instead of 13.
The proposal also decoupled presidential terms from congressional terms, starting presidential terms a couple of weeks later. This is where contingent elections came in: The reason for the decoupling was that if a presidential election is thrown into the House of Representatives, it would be much more appropriate to have the new House choose the president than the old House.
Because the amendment opened up the topic of presidential transitions and contingent elections, a House committee in 1926 took the opportunity to address the worrisome business of candidate deaths between Election Day and Inauguration Day. Thus the 20th Amendment addresses several as-yet-hypothetical situations: dead presidents-elect, dead vice presidents-elect and elections that remain deadlocked past the start of the term. The committee – most importantly for our purposes – also covered the problem of candidate deaths in a contingent election. Fatefully, though, the committee only had Section 4 empower Congress to legislate a solution.
After a few more rounds in Congress, the 20th Amendment passed in 1932 and was swiftly ratified by January 1933. But the proactive impulse that motivated the House committee to create Section 4 in 1926 had faded by 1933. Congress, knee-deep in the Great Depression by then, had bigger problems to face. Congress has remained uninterested in Section 4 since then, with the exception of two bills from Sen. Paul Simon around the time that Ross Perot's candidacy briefly raised the specter of a contingent election. The bills went nowhere.
So what went right in 1926? A few things. First, the issue was fresh in people's minds: In 1924, Robert LaFollette ran a strong third-party campaign and then died the next year. With the current election raising the specter of a three-way deadlocked election, the moment is ripe.
Second, the core, lame-duck part of the amendment opened things up. Once the Constitution is on the operating table, why not fix a few other things? This factor is not present right now, but because the solution here requires only simple legislation and not a constitutional amendment, that's probably okay.
Third, there were the right leaders in place at the right time. William Tyler Page, the clerk of the House of Representatives, had a list of hypothetical electoral difficulties he wanted to see fixed, and he spurred the House committee to address them in 1926. The committee leadership, for its part, was receptive to Page's input. Are there leaders in Congress who right now stand ready to push a sensible reform that would benefit the public interest but not benefit any particular special interests? I hope so. If you know any, you should feel free to send them my article …