James Madison

This Election Cycle Could End With President Paul Ryan

Our system can’t really cope with a three-way race

Paul Ryan could become our next President without receiving a single vote. This isn’t fantasy or anarchy. It’s a possible result of the Twelfth Amendment, and its rickety, 200-year-old backup plan for failures of the Electoral College.

The premise here is that Donald Trump is the likely GOP nominee. Credit brutally effective cyberbullying, or authoritarian fever, or the sad truth that our reality TV democracy is an easy mark for a grifter of sufficient skill. Whatever it is, his delegate math is strong and looks to remain that way.

If Trump wins the nomination, he will have effectively commandeered one of America’s two major political parties, despite openly hostile relations with the party establishment. Third party candidates are usually third wheels in our duopolistic party system, but in terms of profile, Trump is a third party candidate.

A three-way race suddenly seems plausible. Yes, Michael Bloomberg could run. But with the two-party dynamic scrambled, with room to run and egos bruised after primary (or convention) combat, a more traditional conservative candidate — a Jeb Bush or Marco Rubio — could jump in, too. And if Bernie Sanders wins the Democratic nomination, Hillary Clinton might at least think about it. We have not had a presidential race with three major national candidates in over a century (sorry, Ross Perot). But this year could be different.

And a three-way race leads to another, scarier possibility. 538 Electors, chosen state-by-state, elect the president. With Trump on one party line, and two other major candidates, the Electoral College could split three ways, with no candidate above the magic 270 electoral votes. That would be a disaster. If we had a doomsday clock for constitutional crises, it would have ticked a few notches toward midnight when Donald Trump won the Nevada caucus.

The Twelfth Amendment provides the rules for what happens when there is no Electoral College majority. Not uncoincidentally, it is the closest our Constitution comes to acknowledging that political parties exist.

At the founding, Madison argued that Constitution’s structure would suppress the evils of “faction” and ensure that independent, public-minded lawmakers prevailed over party hacks. The reality was more complicated. Parties formed almost immediately, and partisan rancor was the norm within a decade of Philadelphia.

Our inchoate party system clashed with the original method for electing presidents. Under that scheme, each Elector voted for two candidates. The top total vote-getter became president, and the runner-up became vice president. If there was a tie, or no majority, the House chose. In a system without parties, that system ensures that the most popular national figures occupy the highest offices in the land. But in a party system, it enables division or chaos. Division, because the two most popular candidates might be the leaders of opposing factions — which is how Democratic-Republican Thomas Jefferson became Federalist John Adams’ vice president. And chaos, because if candidates run as a party ticket, and each member of the ticket receives one of each Elector’s two votes, then the result is a tie.

The chaos scenario happened in the election of 1800. Thomas Jefferson and Aaron Burr ran on a (proto-)ticket, and Democratic-Republican Electors gave each man one vote. The tied election went to the House, where Jefferson won, after extensive hand-wringing and horse-trading, on the thirty-sixth ballot.

The Twelfth Amendment was adopted to clean up the mess. It expressly acknowledged tickets (and thus, parties) — Electors would now vote for a single ticket, rather than cast two votes for two candidates.

But the process for resolving no-majority outcomes remained mostly unchanged. The basic rule, since 1804, has been that if no candidate receives a majority, the House elects the President, and the Senate elects the Vice President. In 1824, after a four-way race where Andrew Jackson romped but no candidate hit the magic number in the Electoral College, John Quincy Adams was elected by the House of Representatives. We haven’t elected a President this way since.

A certain hat, via Amazon.com

Let’s flash forward from the Era of Good Feelings to the Era of Trump Ascendant, and play this out.

Two conditions need to occur for Paul Ryan to wind up in the Oval Office in January 2017. First, there needs to be a no-majority result in the Electoral College. And second, Congress, faced with procedural uncertainty and massive political tension, needs to be unable or unwilling to act.

Let’s assume that the first condition is met: Trump does in fact win the nomination, another hungry, brand-name candidate jumps in the race, and three candidates then split the Electoral College, preventing the required majority. Unlikely, but not completely implausible in a close election.

Now the Twelfth Amendment kicks in. With most parts of the Constitution, we have a healthy body of Supreme Court decisions that give some shape to the text. Not so for its House-elects-the-President backup plan — and if Senate Republicans have made good on their promises, the Supreme Court will lack a decisive fifth vote in any close case should their opinion on the subject be needed.

But the bigger problem is that the Twelfth Amendment only works if Congress can get its act together.

The House has to choose between the top three vote-getters: (1) Donald Trump, (2) the Democrat, or (3) the third candidate. The process is funky: The House votes by state delegation, meaning that Texas gets one vote, and so does Rhode Island. And, because of other provisions in the Twentieth Amendment and federal law, the new Congress, the one elected in November 2016, would be the one doing the choosing. They would have roughly two weeks until Inauguration Day.

Currently, 33 of the state delegations are majority Republican, and that edge is not likely to change. But House Republicans may be badly split. After months of Trump running as the GOP nominee, some party nabobs may have come around, while others may remain unmoved. Meanwhile, a Democratic candidate (or even, say, a Bloomberg) could be unpalatable to a majority of delegations. If no one from the People’s short list garners sufficient support, the House will simply deadlock on ballot after ballot, making no decision before January 20.

If the House deadlocks, it’s up to the Senate to elect the Vice President to step in on Inauguration Day, this time from the top two Electoral College vote-getters (and within the same short timeframe). But if our crisis-to-crisis, hardball mode of governance (one that Senate has helped raise to an art form) remains in effect during this constitutional detour, then the trainwreck gets even messier, because the Senate could deadlock, too.

First, they could deadlock because the top two contenders lack support. Say the Republicans hold the Senate. And say the establishment conservative ticket (or the closest approximation) comes in third. Faced with a choice between a Democrat and whomever Donald Trump picks (Chris Christie? Omarosa?), a GOP Senate majority may simply choose no one.

Second, they could deadlock because of a filibuster. Whatever happens in 2016, it is unlikely that any party will have 60 votes in the Senate, and thus extremely likely that the minority party will filibuster. What is going to stop them?

The answer might be some sort of “nuclear option,” which would allow a bare majority of the Senate to elect a Vice President. Another answer, though, is nothing. If the Senate, for whatever reason, does not shut down a filibuster — or doesn’t do it quickly enough — we could wind up on January 20, 2017 with no President and no Vice President.

At that point, the Twelfth Amendment has failed. Another law, the Succession Act kicks in. If he is reelected House Speaker, Paul Ryan would become Acting President. (If he isn’t — if the House can’t agree on a Speaker — then get used to the words “Acting President Hatch.”)

One upshot of playing out these rules is that there is a real (if risky and short-term) gambit for establishment Republicans in running a third-party candidate. If their party can hold the House and Senate, and if their candidate can secure a fractured Electoral College, the GOP has a dominant strategy for taking the executive branch, by Congress under the Twelfth Amendment if the votes are there, and by the Succession Act if they are not.

Another is that the Twelfth Amendment process is (still) a recipe for chaos. Try this twist: The newly elected Senate is tied at fifty votes apiece. In the final week of his term, Joe Biden casts a series of votes to nuke the filibuster and then select a Democrat as the next Vice President, who assumes the presidency with the House deadlocked. Republicans file a lawsuit proffering a competing understanding of how the Constitution works in these unusual and highly unfortunate circumstances, and challenging the Biden maneuver. The case makes its way to the Supreme Court, where the deciding fifth vote is cast by a contested, last-minute appointee who has also been nuclear-optioned though a 50–50 Senate. Out of sheer spite, House Republicans then unify and elect President Trump, who lost the popular vote by 15 points.

If you think these scenarios are a bit far-fetched, you are right. But gaming out what happens when our system is stress-tested reveals just how inadequate its rules can be when it comes to producing fair, democratically legitimate results in the context of a polarized mass democracy. The exercise should cause us to ask why we keep those rules around in the first place.

Law professor Bruce Ackerman recently called on Michael Bloomberg not to run for President, arguing that he would make some version of the above more likely. He called it a constitutional crisis. But Paul Ryan doesn’t become President in a coup. These are the rules of our system. The deeper problem is that they were designed for a different society, with a different (and, frankly, an imagined) political culture, and we haven’t really updated them to match reality.

Ackerman is not the only one to sound the alarm about a potential crisis on the horizon. Matt Yglesias and others have pointed out that Madisonian systems (i.e., presidential systems with separation of legislative and executive power) can be more prone to instability than parliamentary ones, and argued that a systemic breakdown is only a matter of time. (Counterpoint: Parliamentary systems can also sputter with rapid shifts in party dynamics.)

America has avoided a full-scale meltdown in part because historically we have had a relatively stable (and, for much of the twentieth century, relatively non-ideological) two-party system governed by strong informal norms. But informal norms are just that, and now many of them are rapidly and perhaps inexorably disintegrating. The only real rules we have are those that all — even highly motivated partisan actors — are bound to respect. And those are not sufficient to prevent crisis-level results.

Since the Philadelphia Convention, we have had precious few moments like the one after the 1800 election. We don’t often ask whether the structural rules of our system are up to snuff for translating the will of the People into an effective government, let alone do something about it when we don’t like the answer. Would different rules result in a system that is more representative, or less prone to deadlocks and breakdowns, or for that matter more difficult to game or grift? Avoiding crisis is important, but isn’t it too low a bar?

As our party system changes, moving further away from the world as the rulemakers envisioned it, these questions are more important than ever. But it may take the non-election of President Ryan to act on them.