A DISCUSSION OF LAW AND JOURNALISM

The Constitution, Mike Bloomberg, and the Presidency

http://farm2.static.flickr.com/1103/1033726194_e9eb0b8a15.jpg

By Trevor Timm

Another campaign season has come and gone, which means it’s time for the annual suggestion by newspaper and magazine columnists that a viable third party candidate will run for president, and maybe even win. These columns inevitably generate many hits for the writers and even more publicity for their chosen third party candidates.

A prime example of this trend could be found in recent piece in The New Yorker by Beth McGrath, who wrote about how political pundits are abuzz with the prospect of an independent candidate running for President in 2012. Surveying a political landscape awash with widespread dissatisfaction in the two main political parties, the collective mood of the electorate is supposedly summed up by political consultant Joe Trippi, who said, “I would put the odds of an independent candidacy for President in 2012 or 2016 at probably sixty to seventy per cent.”

As the column progresses, the only serious questions asked are 1) who will it be?, and 2) where will the money come from?

And Ms. McGrath is just the latest in a long line of columnists who simplify a third party run and suggest it’s just one more election cycle away from becoming a reality. Thomas Friedman recently fantasized about the thought in the New York Times. David Broder of the Washington Post seemingly writes the same column on the topic at least once a year. Howard Fineman of The Huffington Post also joined in the fray last week. There are scores of other examples.

But they all ignore the fact that makes this concept near legal impossibility: the Twelfth Amendment.

On a practical level, the biggest problem in a third party candidate’s way is fundraising. Finding the one to three billion dollars it would cost to make a legitimate run is close to impossible without support from one of the two major parties—each of which has a massive fundraising apparatus. That is why the panacea for Ms. McGrath, and many others, is Michael Bloomberg, the Democrat-turned Republican-turned Independent mayor of New York, a self-made billionaire, and one of the richest men in the country. Problem seemingly solved.

But a quick look at the Constitution and any newspaper editor would see that all the plans for a third party candidate are meaningless, and it isn’t just because of dollars and cents. The Twelfth Amendment is, in reality, a much higher—if not impossible—hurdle to jump for any independent candidate than the billions it would cost to run.

The Twefth Amendment’s relevant portion states:

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

As the 2000 election reminded everyone, a candidate is not elected by the popular vote, but by the arcane and intricate system known as the Electoral College. Instead of the-most-total-votes-wins system, each state get the same number of votes as it has representatives in Congress (House plus Senate members), and vote that number as a bloc. The winner of the Electoral College wins the Presidency. Outdated maybe – – but at least relatively simple to understand.  Not so in a three-way race for presidency.

The Twelfth Amendment mandates that a candidate must garner a majority of the electoral votes to become president, not just a plurality. To win a majority vote, a third candidate would have to drain considerably from the pool of support for both parties, or to render one party completely negligible.  According to the electoral college map, this would require our billionaire third-party candidate to win some Southern states , where the electorate in recent years has become almost monolithically Republican. Mr. Bloomberg’s anti-gun, pro choice, pro- 9/11 mosque, pro-gay rights positions surely limit his support in these states. As Mr. Bloomberg pointed out only half jokingly, “believ[ing] in Darwin—that’s enough to get you knocked off the ballot in half [the states].”Ross Perot, another self-made moderate billionaire, ran the most successful independent campaign in modern history when he garnered 19% of the vote in 1992. He drew equally from both party’s candidates, as exit polls showed he siphoned off 38% of his votes from Bill Clinton and 38% from George H. W. Bush. No one had won that large a share of the popular vote since Teddy Roosevelt in 1912.

But the number of Electoral College votes he won: Zero.

Right now, according to polls, Bloomberg would win only 11% of the vote in a three way race, and he would not find favor with a large portion of the country (39% of people already view him unfavorably).

Winning the Electoral College outright is an extreme long shot, but even if Mr. Bloomberg somehow garnered the most electoral votes at the end of a three-party election process, his chances of winning the election would be slimmer still. Whether he had garnered 40%of the Electoral College or just 4%, it wouldn’t matter.

If no one party won a majority, the decision for who wins the Presidency goes to the House of Representatives. There, each state then has one vote. The individual states gather their representatives and they vote on their states’ pick.  The candidate with the most votes wins the Presidency. Number of independents currently in the House of RepresentativesZero.

Bloomberg would need regularly highly partisan House members to abandon their respective parties in droves to ensure victory, a near impossibility when one side knows that if the other defects in any significant numbers, their party can cruise to victory.

The House is, of course, controlled by Republicans after a sixty seat pick-up by the Republicans last month. States with more Republicans currently outnumber states with more Democrats about 2-1. Because each state gets one vote, our third-party candidate would need a significant number of Republicans no matter how many Democrats he could convince.

Mr. Bloomberg recently had some choice words for the incoming Republican majority of Congress.They “can’t read,” he said, adding “I’ll bet you a bunch of these people don’t have passports.” Not exactly the best way to endear yourself to an absolutely vital constituency.

Mr. Bloomberg knows the Electoral College makes a third party presidential run impossible and has repeatedly cited it as is the reason he unequivocally won’t run.   Yet this never gets a serious mention in the thousands of words speculating on his imaginary candidacy.

There are sure to be some Bloomberg-for-President supporters who think Mr. Bloomberg has a chance to overcome the odds of him beating the system. They should be reminded that if he comes short, he may end up being a spoiler in the worst way: Jon Heilemann of New York Magazine games out a plausible scenario wherein Mr. Bloomberg’s candidacy paves the way for President Sarah Palin.

Comments

2 Comments »

2 Responses

  1. toto says:

    The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote, everywhere would be politically relevant and equal in presidential elections. Elections wouldn’t be about winning states. Every vote, everywhere would be counted for and directly assist the candidate for whom it was cast. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong in virtually every state, partisan, and demographic group surveyed in recent polls in closely divided battleground states: CO– 68%, IA –75%, MI– 73%, MO– 70%, NH– 69%, NV– 72%, NM– 76%, NC– 74%, OH– 70%, PA — 78%, VA — 74%, and WI — 71%; in smaller states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE –75%, ME — 77%, NE — 74%, NH –69%, NV — 72%, NM — 76%, RI — 74%, and VT — 75%; in Southern and border states: AR –80%, KY — 80%, MS –77%, MO — 70%, NC — 74%, and VA — 74%; and in other states polled: CA — 70%, CT — 74% , MA — 73%, MN – 75%, NY — 79%, WA — 77%, and WV- 81%.

    The National Popular Vote bill has passed 31 state legislative chambers, in 21 small, medium-small, medium, and large states, including one house in AR (6), CT (7), DE (3), DC (3), ME (4), MI (17), NV (5), NM (5), NY (31), NC (15), and OR (7), and both houses in CA (55), CO (9), HI (4), IL (21), NJ (15), MD (10), MA(12), RI (4), VT (3), and WA (11). The bill has been enacted by DC, HI, IL, NJ, MD, MA, and WA. These 7 states possess 76 electoral votes — 28% of the 270 necessary to bring the law into effect.

    see http://www.NationalPopularVote.com

  2. […] 2008, the electoral college system was also one of the major hurdles facing Michael Bloomberg’s almost-official third party run for the White […]

Leave a Reply


two − 1 =