Compared to my reflection on the Primaries this one will be fairly short. I wish to discuss these two topics because they are much in the news, at least sporadically, and I think the public discussion of them has been over-simplified. Politicians, editorial writers and others just shouting/writing “Dump It” or “Keep It” seems to me a trivialization of complexities.

By the way, most of the information I use in writing is available on line and if you want to know more about these subjects or others that way, have at it–but the on-line information is sometimes frustratingly incomplete. I am going to go with what I have so far and try to give you my insights, but only a swift history of each of these issues. The history of the filibuster is extremely complicated and reconciling the differences in varying opinions next to impossible without an output of time and energy worthy of a Ph. D dissertation. I think the following is basically true, but there are varying ideas available and some of the accounts of what has happened in this Senate conundrum seem contradictory, at least in what they consider important . If you look far, online or elsewhere, you will find explanations that do not enrirely agree with mine.

The filibuster was not in the original US Constitution and is not in our current one, as amended. It is the result of a Senate rule, the changing of that rule and a lot of opportunism and silliness since. Originally, the Senate rule was that debate could be stopped by a simple majority vote. All you needed was a majority of Senators present to say, “OK, we’ve heard enough” and debate stopped.

For reasons too complex and technical to go into here this was known as the “previous question” rule(see “Roberts’ Rules of Order” if you are going to insist on pursuing this). In 1806 Vice-President Aaron Burr suggested to the Senate that this was not a good rule and should be dispensed with. The Senate seems to have agreed and with remarkably little hesitation or debate they dropped it and replaced it with–nothing!

After this there was disagreement and fairly wide use of something like the filibuster for about a century(Linguistic note–“filibuster” comes from a Dutch word meaning pirate or having something to do with pirates, but today is used only in its political/US Senate context). In 1917, after a particularly irksome(to President Woodrow Wilson, anyway) Senate quarrel over the issue of arming American merchant ships, the Senate made a new rule(only 111 years after the above change). This one said that debate could be ended by a 2/3 vote of those present and voting. The 2/3 is a pretty high bar and was even then, but it was not impossible to reach, particularly if you had a “little group of willful men” to use WW’s words, trying to hold captive the US Government and seriously delay important business.

With few exceptions, this rule held until the 1970’s when another change was made. The number of votes to stop debate was reduced to 3/5 of the sworn members of the senate. The 3/5 is obviously smaller and all other things being equal would be easier to reach. But as often in Washington, DC(and in life for that matter)all other things are not equal. Making it 3/5 or 60 of the sworn in members of the Senate would work, in most cases, anyway, to make it more difficult to stop debate. A 3/5 majority of those present and voting would have been feasible, if not guaranteed, but 3/5 of the whole Senate, absent or present, was another matter. As any careful observer knows, many members of the Senate(also the House for that matter)are absent much of the time. There are often good reasons for this and I am not attacking anyone for it, but it is a fact to be considered regarding this issue. On anything that has the slightest smell of partisanship or political philosophy about it, it is possible(maybe easy)to get an argument out of nearly any Senator. With a roughly evenly divided Senate getting 60 of them to agree on anything is like herding cats at a mouse convention.

So this rule change has had 2 huge effects. It has created the need for a super majority of 60 to pass most(not all)important bills and thereby guaranteed that the majority will frequently be frustrated entirely or at least will have to expend great time and effort to get its way. The other effect is the “silent filibuster” which means that if you can get 41 Senators to state publicly they will oppose a bill, then the bill is effectively defeated without a vote. Knowing that there will be a tiresome and time wasting filibuster, the Senate Majority leader at this point usually stops pursuing the bill and the battle is over. The 41 have more or less said, “Hey, we’re filibustering, let’s go have coffee.”

This is a long way from the traditional filibuster in which the Senator doing the filibustering was required to keep talking or yield the floor to someone who would. I am aware this was often put to uses that might be seen as useless or worse, the most dishonorable example being the many times Southern Democrats used it to weaken or spike legal guarantees of racial equality. But it could also serve(and occasionally did) to give an honorable minority of at least 1 Senator a chance to protest something he or they thought wrong. Of course the most well-known example of this is a fictional one, Jimmy Stewart’s noble if somewhat unbelievable effort in Frank Capra’s “Mr Smith Goes to Washington.”

On the whole, and trying to consider all the aspects of this, social, political, etc., I feel the best choice is to go back to the older method which required that one Senator keep talking. This way if a Senator really feels strongly about something that is likely to become a law he may say so along with others who agree. But they will have to expend time and effort to do this and will NOT be able to stop serious and important matters in the Senate simply by announcing that 41 of them agree to a filibuster. (A “silent” one or maybe the better description would be “phony.”)

But, some will, with reason, say, what if this reversal of things cannot be accomplished? What if, for whatever reason, there is no possibility that the old filibuster may be returned? Well, I like the old filibuster, but if this is the case then I have to agree with those who want, I think somewhat precipitously, to end it altogether. If there’s no chance of a morally meaningful filibuster, then I think the right thing would be to get rid of the meaningless one. I don’t see that this should require a long debate, something that ties up the political and journalistic consciousness of the US for months. Each side should have its say, then change it or get rid of it. Let us be finished with this.

The Electoral College is a somewhat more complicated matter but one with similarities to the filibuster. One of the similarities is that I would like to keep the Electoral College but to change it seriously. If this cannot be done then it, too, should be dispensed with, though I don’t much like some of the possible outcomes of that choice.

I have a strong tendency to believe that if things are running reasonably well in a country, a business or whatever, then it may be better to accept annoyances or imperfections rather than change them. If you begin changing things no one can tell what will happen and you could end up making things worse. So I am usually willing to put up with the merely good without insisting on perfection. My favorite of President Obama’s sayings was ‘Don’t let the perfect be the enemy of the good.”

But there are limits and the Electoral College AS NOW ESTABLISHED AND FUNCTIONING is beyond them. But I would like to keep the College with some fairly radical changes rather than eliminate it and go to direct popular election of the President. I will try to explain why.

First of all, nearly everyone who has paid much attention to US Presidential elections “knows” that every state gives all it’s electoral votes to the candidate who wins the largest popular vote. I use the quotes because this statement is not fully true, though it is substantially true for figuring what happens in a Presidential election. The statement is true in 48 states–Maine(4 Electoral Votes) and Nebraska(5 Electoral Votes) use a different rule by which it is possible(but it happens less than half the time) for the Electoral Vote to be split. This has been so in Maine since the 1970’s and Nebraska since the 1990’s.

But first, what about the winner take-all method that determines nearly every Presidential Election? Where did it come from? It took me years to grasp the fact that it is NOT FOUND IN THE CONSTITUTION. The Constitution originally gave a great deal of authority to the individual States when it came to voting and voting rights. To some extent it still does, though there are more limits now. But the Constitution has never stated how Electors will be chosen. Each state has the choice for itself. For about the first 40 years of the Republic the states split all over the place on their choices and Electoral votes were frequently split within states.

There were originally several possibilities–1) State Legislature 2) Districts within state–3) Statewide 4) Hybrid- a no doubt confusing mixture of 2 or 3 of the above. No 1 meant simply that this was a matter for the state legislature to decide and the voters had no part in it at all(except of course that they did vote for the legislators); No 2 used the already established Congressional Districts OR created new districts for this purpose only, and the voters of that district chose the elector(s); 3) The current system in 48 states–ALL the state’s electors go to the candidate receiving the most popular votes–that candidate’s “slate” is elected and presumably will vote for him in the Electoral College(sometimes they don’t, but it’s unusual); 4–Don’t ask–I’ll bet it drove people batty.

So, it is not written in the stars, or in the Constitution, that electoral votes all go to the candidate with the state’s most popular votes. It could be changed. It has been. From the beginning of the Republic until about the second decade of the 19th century there was a lot of back and forth about this. In the 1812 election the number of states using the statewide system actually decreased and the number using the legislature increased. But this turned around in the 1820’s when it appears to have occurred to many political leaders that one way to preserve their state’s power was to guarantee all its Electoral Votes to whoever got the most popular votes. This seems to have been particularly an attractive idea in VA, MA and other states with fairly large populations and therefore more Electoral Votes than most. In any event, after 1824 the winner-take-all system prevailed almost without exception until ME and NE jumped off the bandwagon(to a very limited extent) a generation or so ago.

Now the current method has some things to be said for it. For one, it is pretty well burned into the American collective subconscious and is an identifying mark of our country. To remove it would somehow be giving up some of our identity. These things are important, particularly at times of strife and unusual division. It also worked to protect the power and importance of certain parts of the US and certain states. Of course, it usually benefited IL and FL and the other big Electoral vote states which got a great deal of attention from contenders for the White House. But it also made the candidates, particularly in close races, pay some attention to smaller sates, After all, if you think you and your opponent might come in just about tied, then it matters where Nebraska’s 5 electoral votes or North Dakota’s 3 go.

In addition it needs to be pointed out that for over a century, this system brought political peace and stability the the country. But this may no longer be entirely true. From 1888 to 2000, over 100 years, the popular vote winner was the electoral victor and became President.(1888-Grover Cleveland beat Benjamin Harrison in the popular vote but lost the Electoral College–2000 Al Gore did the same with George W Bush-2016-Hillary Clinton beat Donald Trump in the popular vote but still lost the Electoral Vote) So it could be argued that this thing is beginning to fail. There was outrage both in 2000 and again in 2016(when Gore & Clinton won but lost) and that outrage is likely to grow if this happens again anytime soon. If this does happen, there will be consequences and I suggest these will be unsettling to the whole polity and to the state of civility and cooperation within the US. With the country badly divided over so much now there is no point in making it worse. Both doing nothing and doing the wrong thing could possibly do that.

I also would argue, though with somewhat less confidence, that the founding fathers’ policy of putting a sort of restraining wall(the Electoral College) between “the people” and the Presidential vote was not entirely a bad idea. In any event, the country has gotten used to it and to go from this indirect but usually accurate method to a direct popular vote would be a shock to the constitutional system.

For all of these reasons I am against radical change, that is a direct popular vote for President. But I have not yet stated my biggest concern. What if there were a very close election? Say the popular vote split something like 49% for one candidate and 49.5% for another with the other 1.5% going to fringe candidates. This would require a recount and not just for one state as when Gore and “W” fought it out in FL. This would have to be a NATIONWIDE RECOUNT–not just around 6 million votes to be recounted as was the case in FL but somewhere in excess of 150 million(roughly the combined number cast for Biden and Trump)

How screwed up could this get? Very, I think. After several days and more than 1 recount the FL case was still not clear(Bush officially won the state eventually by 48.5-48.4% of the votes)and it wound up in the US Supreme Court. It is impossible to know for sure how long a national recount would take, but say at least a week and maybe a lot more.. During that time no one could start making cabinet appointments. Both sides would no doubt make plans for cabinet and other appointments and various other important matters, but no one would know which side would eventually get to do it for real. There would be an overall feeling of drift and uncertainty throughout the country. Tempers would flare(I’d bet)and all kinds of inflammatory and noxious things would be written and said by both sides.(What an opportunity for real social media mischief) And remember, they would have to recount every last vote! You couldn’t dispense with all the votes in one state just because it was obvious who had won the most votes there. That would be an irrelevancy.

Then, again, suppose that the first recount were inconclusive? What if it showed a closer race than the original election had? Or reversed the outcome? What then?? Another recount? How long does this go on and to what effect?

Now, clearly, you could(would have to)put some kind of legal limits on this as to the number of possible recounts and how much time could be used– and maybe some other things. These could be determined by legislation and such legislation might work. But even it it “worked” in preventing a constitutional collapse or crisis, what would be the price? If the election were as close as I have hypothesized it could be great in national unity. The losing side in an election that close would surely feel cheated and its more hysterical members would likely start wild conspiracy theories as to what happened. Short of a nearly miraculous improvement in both common sense and education in the US, many of these theories would be believed by a large number of people. This is hardly a recipe for civil peace. Just consider the trend of American thought since the 2020 election.

So what do I suggest? Well, several suggestions have been made in the past(just google “suggestions for Electoral College Reform ” if you want to see how many and exactly what) My own suggestion is by no means original with me. It has been suggested by others.
For what it’s worth, here it is, including one or two ideas of my own tossed in with previous ones. (Now, keep in mind that each state has the number of Electoral Votes as it has members of the House of Representatives, plus two, allowing for the two Senate members.) I suggest that the means for selecting the winner of electoral votes be changed so as to reflect much more accurately the popular vote and the will of the voters. I suggest this be done by using the old “District Method.” I would have each Congressional District in a state select, via popular vote, whom that district votes for for President. Now, since each state has more electoral votes that it has Congressional Districts(allowing for the two Senators), what about them? I would have the two others chosen by the statewide vote just as all electors are chosen now in 48 states. This would preserve a little of the old method’s provision for the importance of states.

As an example, suppose a state has 18 Congressional Districts and therefore 20 Electoral Votes. Suppose candidate “A” wins the popular vote in 6 districts and candidate “B” wins it in 12. And suppose candidate “B” wins statewide. As a result of winning statewide candidate “B” would get 14 Electoral Votes(the 12 districts he won plus the other 2) and candidate “A” 6. Of course in most cases this would not exactly reflect the popular vote but it ought to come very close, close enough that it might entirely prevent a popular vote winner from losing in the Electoral College in the future. It would preserve certain parts of the old system including the Electoral College itself and this might serve as a comfort of sorts to those who would dislike seeing the old system go. But most importantly it would provide a system that would give the victory to the candidate favored by the majority without risking a lengthy and potentially ruinous nationwide recount.

Regarding the Electoral College and its Electors I would leave it alone for the most part. Each state would have its own delegation of electors and they would meet in December in the State capital to cast their votes as is now the case. The big difference would be that they would be required by law to vote for the candidate they were pledged to support. If an elector jumped to someone else it simply wouldn’t count–his vote would be counted as going where the voters had a right to expect it to go.

As a sort of governmental liberal but societal conservative I believe it is often important to retain old forms even after they are no longer of what many would describe as “practical” use. But holding the US together and keeping the peace among our various peoples, seems to me, well, “practical.”

If, however, it is impossible to get this done and retain the actual Electoral College, then there is another course. You could get rid of the whole Electoral College and just decree that Electoral votes go to whoever wins them in the popular vote, (district-by-district as I explained above) The advantage would be that this would be slightly less expensive and, more importantly, the result of the election would be legally established quickly, likely the same week as the vote takes place. Once a State’s vote was certified there would be nothing left to do and the election would be over, except maybe on TV talk shows and the internet. I much prefer my suggestion, but this one at least would get rid of the present situation which includes the possibility of serious trouble. At least the second suggestion would eliminate that and more or less guarantee domestic peace after a Presidential Election. That alone would be worth the compromise involved.

There may well be other suggestions later on that will be better than this. If so, I hope one of them succeeds. But something needs to be done. This issue, which has now appeared only 3 times in about 130 years, but twice in the last 20, is a time bomb in the Constitution. Someone needs to defuse it before there is a political explosion.