The fallout from Donald Trump’s victory continues, with many of his opponents talking about what the Constitution says. That would be good, if they were looking at the right parts of the document.
Too many people are asking whether it still makes sense to elect presidents via the Electoral College. They would be better off asking whether we have let the presidency grow into something the Founders never intended.
Let’s deal with the Electoral College argument first. The premise is this institution is flawed because Trump, like George W. Bush before him, did not win the popular vote. But it isn’t necessarily true that the popular vote better reflects the will of the people.
Presidential campaigns are built to win electoral votes. That’s why they put so much energy, money and time into winning the states thought to be the most competitive: Even a narrow victory claims all of a state’s electors (except in Maine and Nebraska, which allocate some electors by congressional district). A win is a win.
Campaigns built to win the popular vote might not produce the same results. Democrats might try to run up the score in states like Washington, where Hillary Clinton won comfortably but some 6 percent voted third-party. Republicans might try to do the same in Indiana. The popular vote in any given election could flip as a result.
A couple of sports analogies may help. In baseball, strategy would change dramatically if a team won by having the most hits, not the most runs. A team whose lead-off batter reaches base will often use sacrifices by the ensuing batters to drive him home. If hits mattered, you’d never see that. So it’s impossible to say the number of hits would be the same if the rules were different.
Or consider football. The Buffalo Bills have outscored their opponents this season by a combined 34 points, while their division-rival Miami Dolphins have been outscored by 2. Yet, the Dolphins have the better record. It would be silly to argue the Bills are more deserving of a playoff spot just because they’ve scored more points. To quote ex-coach Herm Edwards, you play to win the game.
Rather than saying Republicans have been unworthy winners of the presidency twice in recent history, it is more accurate to say Democrats have blown a pair of opportunities by not playing the game as well as they could have.
Of course, the main reason we are even talking about this is many people fear what Trump will do in office. They have watched, and often cheered, as Barack Obama has wielded more executive power than George W. Bush — who in turn surpassed that of his predecessors. It’s a long tradition. That doesn’t make it right.
The Founders gave Congress more power than the president, who was to be “energetic” in carrying out the laws but not in modifying them. The regulatory, bureaucratic apparatus that has arisen under the president is more like a fourth branch of government than a part of the original three.
Many of the fears among liberals about Trump (at least about his governance rather than just his rhetoric) concern what he might direct the bureaucracy to do. Obama tried through regulations, not acts of Congress, to change laws regarding the environment, immigration and more. “We can’t wait,” he would say, and so if his “phone” didn’t get it done, his “pen” would. Now, someone with very different ideas holds the pen.
In a republic like ours, voters should never have to cast their ballots out of fear of what might happen if one of the candidates wins. That so many (on both sides) did so this year shows how far we’ve strayed from the nation’s constitutional structure. We should try to return to the way the president is supposed to function, not to rewrite the way we elect him.