Let the chattering classes focus on chads and undervotes and Florida recounts and what the courts--state and federal, all the way up to the Supreme Court--would or wouldn't do. Let us not forget that the candidate who won the national popular vote falls only three votes short of a clear Electoral College majority even without Florida. If on December 18, the day the Electoral College convenes to cast its ballot, three Republican electors decide on their own to vote for him, all the speculation is moot.
Our purpose is to argue that our three hypothetical electors should so decide and that American democracy would be the better for it. And that this particular election, because it is so close and because it has raised fundamental issues of voting rights, provides the right historic moment for such a gesture. In 1960, another close election, Ted Lewis argued in The Nation that there was such revulsion against the Electoral College that it "would certainly now be on its way out" if it hadn't "functioned on November 8 in accordance with the national will."
Election 2000's clouded outcome has highlighted some glaring flaws in our electoral system--uncounted votes, confused voters, voters rejected (see David Corn, on page 5)--which has stimulated a growing sentiment for reform. And so while the country's mood is hospitable to reform, why not abolish the most undemocratic institution of all--the Electoral College?
That's where our hypothetical three electors come in. By casting their votes for the popular-vote winner, in the short run they would guarantee the election of the man who won the popular vote; but more important, in the long run such a gesture might break the antidemocratic stranglehold of the Electoral College on American politics. Let's be clear: We are not urging them to vote for the popular-vote winner because we support Al Gore. We are urging them to cast such a vote because it would be the right thing to do--legally, morally and politically.
It will immediately be objected that what we are proposing is an invitation to electoral anarchy, that history has rightly stigmatized the thirteen electors who switched their votes in previous presidential elections as "faithless electors." Besides, Vice President Gore himself has said he would "not accept" Republican electors. But the Vice President has no say about the matter, any more than he has a say about not accepting the vote of those whose party affiliations or (political) motives he finds repugnant. Even a Gore concession speech doesn't bind the electors.
As for those faithless electors, we would argue that if you have a system of electors instead of direct democracy, the possibility of defection goes with the package. What is more, if three or more Republican electors decide to cross over, far from creating electoral anarchy, their actions would be legally defensible, morally beneficial and politically desirable.
Legally, because under the Electoral College electors are not bound by the Constitution to follow the popular vote, and in twenty-four states they remain free to vote their conscience. In twenty-six others they are required by state law to follow the popular vote. Scholars like Akhil Reed Amar and Mark Tushnet argue that electors are totally free agents.
Morally, because their action would prevent the presidency of a man who lost the popular vote. It also brings us a step closer to the democratic ideal of one person, one vote. The Electoral College was created by the Framers under a deal with the slaveholding states to give those states added clout in the new Union. The Framers distrusted the popular will. As Alexander Hamilton wrote in The Federalist Papers, "A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations" to choose the "Chief Magistrate." They did not anticipate political parties or the current practice of electors pledging to vote in accordance with the popular vote in their state.
Politically, because ultimately the fortunes of both parties--and minority parties as well--would be strengthened by a more democratic government. The smaller states now wield disproportionate influence in elections. And without the need to troll for electoral votes, candidates would be motivated to campaign in all fifty states, not merely the big contested ones.
Passing a constitutional amendment to abolish the Electoral College will not be easy. But the dramatic gesture of three electors or more defying the Electoral College could concentrate the nation's attention wonderfully and help jump-start a movement for reform. It might at least stimulate collateral reforms in the states, along the lines of the present systems of appointing electors in Maine and Nebraska, only carrying it further.
In the past, faithless electors were eccentric loners. This year they could be electors of conscience--the people's electors. Their action would cause a firestorm in the House. But such high constitutional drama would open a national debate on the legitimacy of the Electoral College. It's time to start that debate.
Any last hope former Chilean dictator Augusto Pinochet may have harbored that history would judge him kindly was dashed recently when a Santiago judge formally charged him with kidnapping and murder. At press time an appellate court was reviewing the indictment. But whether or not the 85-year-old former general goes into the dock, the noose is tightening. An Argentine court is now demanding Pinochet's extradition for his role in the Buenos Aires murder of Chile's former army commander. And word is that the US Justice Department is considering its own indictment of the ex-dictator for masterminding the 1976 Washington car-bomb murder of Orlando Letelier and Ronni Moffitt. The big question is how to bring the same sort of accountability to US officials who fully supported Pinochet during Chile's darkest days. As Peter Kornbluh reported in these pages (Dec. 18), there is new evidence that US officials from Henry Kissinger on down were fully apprised of the general's barbarities, even as they pledged full support. The other question is whether the civilian Chilean government will finally move ahead with much-needed reform as the dead weight of Pinochet's legacy is finally being lifted. The Nation's Marc Cooper will soon head for Chile to report on developments.
PERILS OF PACIFICA (CONT.)
Jordan Green writes: New York's WBAI general manager Valerie Van Isler has been notified by the Pacifica Foundation that she will be replaced immediately. On the heels of a successful fund drive that balanced WBAI's budget and left the station with a $700,000 surplus, Pacifica executive director Bessie Wash informed Van Isler that she would be reassigned to a newly created position in Washington. When Van Isler rejected that, Wash told her she was out of a job. On December 4, hundreds of WBAI listeners and producers assembled at a meeting called by the station's local advisory board. Program director Bernard White describes the dispute as an issue of "home rule." A November 30 memo to Wash from the WBAI management team reads, "Valerie Van Isler is--and we expect her to remain in the foreseeable future--our station's manager." Anticipating a forced removal of Van Isler reminiscent of the Berkeley KPFA standoff last year, listeners are holding an ongoing vigil at the station's Wall Street studios. On December 7 they picketed the Park Avenue law offices of board member John Murdock, whose firm, Epstein Becker & Green, advises corporate clients on "maintaining a union-free workplace." Dissident Pacifica board member Leslie Cagan endorsed the action, stating, "He has emerged as part of a leadership team that seems to be making the decisions."
From Benjamin Kunkel: The election's most exciting conjunction of rock and roll and politics involves a brand-new song about an old election. On November 13 the Brooklyn-based band Oneida released "Power Animals," a song about the bitter 1876 contest between Rutherford B. Hayes and Samuel J. Tilden. Like today's Bush/Gore battle, that contest centered on three disputed states and the conflict between the popular vote and the Electoral College. Although Tilden (S.J.T.) had won South Carolina and the popular vote, his fellow Democrats were willing to get behind Hayes (Old Rud) if it meant ending Reconstruction and the federal troop presence in the South. As the lyrics of "Power Animals" have it: "Old Rud's disruption,/S.J.T.'s corruption,/Congressional fat cats in tow/Sold out Reconstruction/And harbinged destruction/With Jim Crow./History's showed/That goddamned crooked road/From which no one has ever returned,/And we're burned...." This song makes a more appropriate anthem during these days of unprincipled battle than chestnuts from the classic-rock songbook. On the day of the election, Oneida's van broke down in a GOP stronghold in Florida. Republicans--happy enough with the legacy of 1876--deny sabotage.
NEWS OF THE WEAK IN REVIEW
Al Gore was faced with the dilemma of how to reconcile his "every vote counts" fight with throwing out Seminole and Martin County absentee GOP ballots. His spin: "More than enough votes were potentially taken away from Democrats because they were not given the same access as Republicans were."
STILL LOSING RUSSIA
"As a result of the Yeltsin era, all the fundamental sectors of our state, economic, cultural and moral life have been destroyed or looted," lamented Alexander Solzhenitsyn earlier this year--quoted, with no doubt a great sense of historical irony, by Stephen F. Cohen in his latest book, Failed Crusade. Some of former "Sovieticus" columnist and frequent Nation contributor Cohen's reportage will be familiar to readers of the magazine, reprising pieces that appeared here and elsewhere, with new chapters bringing the perspectives up to the minute. He traces the history of the impulse to remake Russia in the US image and its resurgence in mainstream thinking by 1992, the first post-Soviet year and last gasp of the Bush Administration. Cohen then proceeds to chronicle how both Russia specialists and the press badly mischaracterized events, to the point of malpractice. In "Transition or Tragedy?" for instance, the most widely reprinted of his articles in the 1990s, Cohen warned that a national tragedy was unfolding about which Westerners would be told little but instead be assured that the transition to a free market "has progressed remarkably." No wonder, he writes, "few readers of the American press were prepared for Russia's economic collapse and financial scandals of the late 1990s." After a catalogue of how the picture has been distorted, the ensuing portions of the book present Cohen's analysis of developments from 1992 to 2000, arranged chronologically, and then his recommendations in working toward a new Russia policy.
In his bracingly corrective view, Cohen concludes that "the missionary crusade of the 1990s was not only the worst American foreign policy disaster since Vietnam; its consequences have contributed to new and unprecedented dangers." Among the necessary remedies: much new thinking in US circles, an openness to Russian-derived solutions and extension of substantial financial aid. His warning is dire, but so is the situation: "For the first time in history, a fully nuclearized country has already been perilously destabilized, but still there is no sufficient American understanding."
Here's the Bush idea of electoral reform: Cancel the election. The Florida legislature's move to choose the state's electors and declare George W. Bush the next President is only the latest of Bush's attempts to short-circuit electoral due process, raising the stakes in the Florida recount far beyond the interests and limitations of Al Gore. Bush's premature declaration of victory, the bare-knuckle tactics employed by his camp through the initial recount and now the legislature's attempt to pre-empt voters altogether have laid down a chilling marker: Bush is trying unilaterally to make his presidency a fact, rendering irrelevant both the legal system and a credible counting of Florida's votes.
To keep those voters' legally cast ballots from being counted, Bush, James Baker and Dick Cheney orchestrated a Big Lie campaign at an extraordinary level. New York Governor George Pataki insisted, "We've now had a count, a recount, a recount of the recount." In fact, at least 10,000 Miami-Dade ballots recorded no presidential vote, suggesting they were never counted properly in the first place. According to the New York Times, antiquated and error-prone Votomatic machines prevalent in the same county's black precincts may have cost Gore as many as 7,000 votes. Bob Dole hammered away at Gore for "disenfranchising" the military. The substance of those allegations vanished so quickly that the Bush campaign withdrew its lawsuit. Bush himself denounced Florida's hand counts, saying they were able to produce "no fair or accurate result." In fact, as US District Judge Donald Middlebrooks pointedly noted in rejecting Bush's case, Florida's hand-recount procedures are studiously "neutral," and Bush had as much right to request hand counts or to challenge certification as Gore. Hand recounts are routine in virtually every election jurisdiction in the country.
Curiously, the Republicans and Democrats seem to share the same central premise, which is that if enough votes get counted Gore will win--hence a GOP strategy based on impeding recounts at any cost. This strategy found near-perfect expression in that pre-Thanksgiving hecklers' veto of the Miami-Dade recount by a screaming crowd of Republican Congressional staffers flown in for the occasion. With thousands of Miami-Dade and Palm Beach votes still to be counted in Gore's post-certification contests, the legislature is now going to the next logical step: Why have an election at all when you can have a coronation?
To back up his effort to crown himself over the heads of Florida's voters, Bush is playing one of the hoariest cards in the right-wing deck: resentment of the judiciary. When Bush, in his "I'm in charge here" speech, denounced the Florida Supreme Court for "rewriting the law," he knowingly stirred regional and racist resentment. His lawyers, led by Ken Starr crony Ted Olson, continued on the same tack with the US Supreme Court, in their brief charging the Florida high court with "judicial legislation" for extending the state's certification deadline in a routine bit of legal interpretation. As political strategy, this effort to delegitimize the judiciary harks back to the impeach earl warren bumper stickers of 1960s segregationists and the Reagan-era attacks on civil-libertarian state judges like California's Rose Bird. As legal theory, Bush's Supreme Court argument has even more profound implications than the election itself. As Laurence Tribe and Gore's legal team correctly noted in their reply, Bush "would undermine the authority of the judiciary to decide the meaning of law."
An election is supposed to represent the direct line connecting people to power. The Bush strategy of impeding the vote counting does the opposite, drawing into the whirlwind every branch and level of government; each new escalation pulls the election's outcome a step further from the voters. The conventional wisdom of the moment is that Gore should give up for the sake of closure, and the Democrats should return to fight another day. But the legitimacy of votes and the legitimacy of the judiciary in protecting voters' rights are principles too fundamental to abandon without the most exhaustive political and legal battle. Whatever you think of Al Gore, this is terrain that is essential to fight for to the bitter end. Settling for less is a false closure not worth contemplating.
With challenges to vote counts flying furiously throughout Florida, we presume to advise an attorney for one group of complainants--those voters in Palm Beach County who were misled by the infamous "butterfly ballot." A total of 19,120 ballots were disqualified in the county because they recorded votes for two different candidates. A later sample count by the canvassing board showed a majority of the double votes were for Gore and Buchanan, lending credence to the theory that folks were misled into voting for Pat. A Florida barrister with the Dickensian name of Henry Handler is representing dozens of Palm Beach County voters who sued because their votes weren't counted. On behalf of his clients, Handler asked for a revote, but on November 20 Judge Jorge LaBarga of the Palm Beach County Court rejected the revote remedy on the ground that the Constitution clearly states that presidential elections have to be held on a single day. The case is now on appeal, and we offer Mr. Handler a suggestion: Instead of asking the court for a new election, ask it to disqualify the tainted ballots in the election districts (EDs) in question--a practice with which Florida courts in particular are familiar--and simultaneously invite all aggrieved voters in these same EDs to come forward with affidavits stating, under penalty of perjury, whom they really meant to vote for. Thus, they would not be voting on a day other than Election Day, but simply reaffirming their vote under oath. And they would be cleansed of the sin of voting for Buchanan.
THE REAL LEADERS
Although the word "leadership" was bruited about ad nauseam in the late campaign, we emerged no wiser about what it consists of. The Advocacy Institute, a Washington public interest group co-directed by Michael Pertschuk, a contributor to this magazine, has undertaken a project in partnership with the Ford Foundation and the Robert F. Wagner Graduate School of Public Service at New York University that should reinject some content into a term that was filled with hot air. It's called Leadership for a Changing World, and the objective is to recognize community leaders or leadership teams who have been tackling social problems with noteworthy success. Over the course of six years the program will give sixty leaders and leadership teams $100,000 each to advance their work, plus $30,000 for supporting activities. You are invited to nominate someone who has shown superior leadership talent in a local community or field. Nominations will be accepted through January 5, 2001. First, you'd better obtain a nomination brochure, setting rules and criteria. It may be had by going to www.leadershipforchange.org or by writing the Advocacy Institute, 1629 K Street NW, Suite 200, Washington, DC 20006.
READERSHIP SURVEY (CONT.)
Watchers of this space may recall we published a "Readership Survey" that provided mock descriptions of the typical readers of various publications. Since then we have received some additional examples: "The Congressional Record is read by those who hope (and some pray) that no one is running the country" (Don Slagel). "The Financial Times is read by people who don't care about the country but want to run the world" (Robert C. Sommer). "National Review is read by people who think liberals are running the country" (Suzanne Prichard). "The Washington Times is read by people who wish the country were being run by editorial writers at the Wall Street Journal" (Morton Paulson). And this from the erudite Washington columnist Lars-Erik Nelson, sadly, not long before he died: "The New York Daily News is not only read by people who are not too sure who is running the country, it is also written by people (e.g., me) who are not too sure who is running the country. I maintain this is the only intellectually defensible position." Finally, an anonymous entry we rather liked: "The Nation is read by people who think the country should be run by the powerless."
NEWS OF THE WEAK IN REVIEW
Media monopoly update: The American Antitrust Institute called for the breakup of the Voter News Service--the polling group serving all the major TV news organizations and the AP. The AAI attributed the erroneous calls by these media on election night to lack of competition among their exit pollsters.
It took George W. Bush a matter of days--if not hours--to prove that he doesn't believe his own different-kind-of-Republican rhetoric and that he is leading a squad as loaded with partisan hacks as the other team. He doesn't trust the people--at least, the people of the recount counties who want to make sure every chad counts. (The Bush-league spin that manual recounts are less accurate than Ouija boards was demolished by computer scientists and voting-machine experts, who maintain that well-managed hand counts are without question more accurate than machine feeds.)
Bush also shows his promise to be a unifier, not a divider, to be counterfeit. Relying on the impression created by the networks' false projection of him as the victor--a call first made by his cousin the vote projector at Fox News--Bush and his lieutenants portray every move that works against them in Florida as part of a conspiracy to "steal" the election from the rightful winner. This is the way to foster unity and healing? The Bush camp then played an ugly card by accusing Democrats, who were following the traditional practice of carefully vetting overseas absentee ballots, of seeking to disfranchise the men and women of the armed forces. What of the men and women who serve as firefighters, inner-city teachers and ER nurses in the disputed counties--did the Republicans care about registering their votes?
Al Gore was pegged as the candidate who would say or do anything to win, but clearly Bush is willing to do whatever it takes to score in Florida. Yes, the Democrats assaulted Florida Secretary of State Katherine Harris, but imagine the fury of Republican spinmeisters if a Democratic state official tied to the Gore campaign had voided a Bush-requested recount.
Given the closeness of the election and the rampant problems with vote-counting in Florida and elsewhere, neither Bush nor Gore can be a clear winner. A system of counting 100 million votes cannot be expected to be accurate to within 0.001 percent. But beware the drawers of lessons, those voices from on high who pronounce this split decision a mandate for centrism. Both candidates ran toward the center, and neither achieved a majority. (If one combines the Ralph Nader and Al Gore vote, there's a 52 percent center-left majority; but given the differences between Goreism and Naderism, could that be a workable majority?) Moreover, campaign centrism again failed to inspire most Americans. Nonvoters outnumbered Gore or Bush voters. Under such circumstances, a pundit-approved mandate would be a figment of the political class's imagination. With roughly half of Americans choosing not to choose, the winner can claim only slightly less than one-quarter support. Had Bush or Gore won by 5 percentage points, he still wouldn't have a popular mandate.
The no-decision election of 2000 may result in sorely needed electoral reforms. But will it convince the next President and the pols to rethink the notion that the center is all? Doubtful: The sad fact is that even more than in previous years, the winner of Campaign 2000 will no doubt be fixated on his re-election as the way to legitimize his very iffy win--and re-election mania breeds caution. After this contest, it's likely that the permanent campaign will become even more permanent. The election of 2000 will very possibly not be settled until 2004.
THE BUCHANAN FACTOR
John Cavanagh of the Institute for Policy Studies posits that Pat Buchanan undermined Bush's election hopes more than Ralph Nader did Gore's. Although Buchanan collected around 450,000 votes to Nader's 2.6 million, in the four states that Bush lost by razor-thin margins Pat may have played the spoiler. In New Mexico, which Bush lost by 377, Buchanan got 1,185. In Wisconsin, where Bush was down by 5,816, Buchanan garnered 11,077. In Iowa, where Pat chalked up 6,776 votes, Bush lagged by 4,047. In Oregon Buchanan took 5,029, Bush lost by 4,186. That adds up to thirty electoral votes that Buchanan might have cost Bush. The only two states where Nader's vote surpassed Bush's margin of victory were New Hampshire and (maybe) Florida, a total of twenty-nine electoral votes. Thus, it's possible that Buchanan hurt Bush more than Nader hurt Gore. Yet Republicans aren't blaming Buchanan for Bush's current predicament.
HOW TO CHOOSE A PRESIDENT
Speaking of the electoral impasse, the Ratzan family sent us a list of possible ways to award the presidency. Among them: * Proportional Term Method. Give each candidate a term in office proportional to the percentage of the vote he won. Two years for Bush, two for Gore, one day for Nader, five minutes for Buchanan. All other candidates' presidencies depend on whether their term leaves them sufficient time to take the oath of office. * Disgruntled Roommates Method. Part 1: Use tape to make line across middle of the Oval Office: This side is mine, that side is yours. Part 2: Divide government 50-50 between Bush and Gore--by department, budget or individual government worker. * Jeopardy Quiz Method. Categories would include Name That Foreign Leader, What Legislation Have I Signed? and English Vocabulary. * Quaker Meeting Method. No President elected until everyone agrees. (For more ways to award the presidency, see firstname.lastname@example.org.)
PRO BONO--AND CON
Sam Nelson reports: According to Supreme Court Justice Ruth Bader Ginsburg, the noble tradition of private pro bono legal counsel, long an answer to the government's inadequate legal aid to the poor, is fast eroding as law firms choose profits over charity. In a speech delivered at Brooklyn Law School recently, Ginsburg said that only 20 percent of the need for legal services to the poor is currently being met in the United States. She noted furthermore that countries in Western Europe spend several times what the United States spends per capita on civil legal aid. The role the private bar plays in providing free legal services has therefore been a critical one. But Ginsburg highlights a disturbing trend: One hundred of the wealthiest law firms now devote one-third less time to pro bono work than they did eight years ago, while the average lawyer spends less than a half-hour a week on unbilled legal work. This is due in part to familiar job-market trends in the new economy, as large law firms increase starting salaries by an average of $25,000 to compete for talent with other lucrative corners of the private sector, like Internet start-ups. Pro bono work, says Ginsburg, "has suffered accordingly." The tradition of pro bono work began in the philanthropic movements of the late nineteenth century and reached its peak in the civil rights climate of the sixties and seventies. Thirty years ago law school graduates frequently sought out firms based on the type of pro bono work they did, said Ginsburg. "Today they don't ask anymore."
TURNING THE ELECTORS
Two politically enterprising seniors at Claremont-McKenna College in California are behind a cybermovement called Citizens for True Democracy, which is mobilizing Internet folk to persuade at least two Bush electors (assuming W. takes Florida, giving him a two-vote majority in the Electoral College) to switch their votes, throwing the election into the House of Representatives or to Gore. To this end they've put on their website--www.truedemocracy.org--contact information for 189 Bush electors in the nineteen states that have no laws requiring electors to follow the popular vote, so that people can urge them not to vote for Bush. CTD cofounder David Enrich, a former Nation intern, says that "thousands of people have visited the page with electors' contact information." Enrich emphasizes he's no fan of Al Gore. "We're focusing on Bush's electors at the moment because Gore is ahead in the popular vote, and we think the popular vote should determine the next President." Actually, he and his partner, Matt Grossmann, founded CTD in 1998 to agitate for direct presidential elections and instant-runoff voting.
There aren't many gracious fighters--especially in the shouting-head world of Washington journalism. But Lars-Erik Nelson, who reported from the capital for the past three decades, was such a person. He recently died at age 59 as he was watching television at home. Nelson, a columnist for the New York Daily News, combined political passion--that is, a thirst for justice--with a hard-edged reporter's desire to unearth facts ignored, overlooked or neglected by others. Throughout the Monica Lewinsky scandal he was one of the few reporters who kept his head while all around him were losing theirs and distinguished between spin and substance. We were fortunate to count him as a contributor (see "Reno: Getting It From All Sides," June 26). The scoundrels, secret-keepers and hypocrites of Washington and the political class are slightly safer with Nelson gone. Our condolences to his family, friends and readers.
NEWS OF THE WEAK IN REVIEW
We have long suspected that the two major parties have become like brand names competing for market share. Now it turns out that a study by a marketing research company called FCB Worldwide actually rated the Democrat and GOP names along with sixty other product brands in terms of the intensity of consumers' relationship with them. FCB used fourteen criteria, which it says were developed with marriage counselors and psychologists and included "chemistry, affection, trust and reciprocity." Judged by these standards, the two parties ranked at the bottom, below well-known names like Nike, Oreos and Clorox. FCB's director, Janet Pines, told the New York Times, "It's scary, yes, but I think it's also easy to see that a bottle of bleach is less likely to betray you than a politician."
Patricia Williams's column does not appear in this issue. She will return in two weeks.