Hail to the Speaker

-- By DavidGiordano - 19 Feb 2021

It’s not hard to see the presidency has achieved the American people’s obsessive attention. A mob recently stormed the Capitol after a presidential election, and cycle after cycle, voter turnout is significantly higher for presidential elections compared to midterm elections. But why is it the president that receives so much passionate focus?

Admittedly, there is much at stake in a presidential contest. Arthur Schlesinger Jr. documents in his book “The Imperial Presidency” a trend of ballooning presidential power that has marginalized Congress in the domains of war and foreign policy. Senate-approved treaties have become secondary to diplomatic executive agreements and Congress hasn’t declared war – a vital check on Executive Power, specifically highlighted in Federalist 69 – since World War II, despite numerous armed conflicts. Schlesinger writes of a Congress that lacks self-confidence: reliant on the president for agenda; skeptical of their own policy-crafting competence (eg. tariff policy); and consequentially happy to delegate power away.

In other policy areas, Executive Orders have become the norm in place of acts of Congress but, perhaps most significant to the national presidential fascination is that, as Barrack Obama put it, “the one constitutional office elected by all of the people is the presidency.”

But is this obsession a problem? It might be. Given Schlesinger’s notes on the source of the president’s swollen power, an addiction to crisis is promoted to justify that power. The Constitution also implies that Congress, not the presidency, is where the people’s focus ought to be directed. Article I §2 lists a clear right for the people to vote for members of Congress. Article II §1 cl. 2 suggests there is no such explicit right for the president, leaving state legislatures free to devise the process for selecting the Electors of cl. 3 and Amendment XII. And even though, as Jeffrey Rosen wrote in The Atlantic, James Madison anticipated congressional supremacy, Americans have come to revere their presidents as kings – exactly counter to Federalist 69. George Reedy, press secretary to LBJ wrote, “By the twentieth century, the presidency had taken on all the regalia of monarchy except ermine robes, a scepter, and a crown.”

If this is enough of a problem to seek a remedy, what might work? There are many approaches ranging in size and scope worth considering, but there is one unconventional approach that may have something to offer: bolstering Congress with a nationally elected figure of its own.

Such a figure could enhance the separation of powers that was foundational to the republic by adding a rivalrous constitutional position that is also elected by all voters. Indeed, it was through conflict between branches that the Founders believed liberty would be secured. Particularly if such a national congressional figure were elected in the fashion of most other members of Congress – a popular vote among their constituency – it could add meaningful context to any mandate the Electoral College may appear to grant the president. This would be especially true for those rare instances where the national popular vote and Electoral College result are divergent. Moreover, with the existence of a national figure, with national accountability in Congress, Congress can be motivated to assume responsibility for the policy imagination, both foreign and domestic, they have offloaded to the president. As Schlesinger notes, Congress can know anything they choose to know, what they lack is the desire and incentive to know. Perhaps a singular congressional role, responsible to a nation-wide vote can begin the re-appropriation of some of that responsibility.

Such a role could also enhance the polity’s expression. Schlesinger also served on a task-force assigned with re-evaluating the Electoral College. As such, while acknowledging the drawbacks of Article II §1 cl. 3 (and Amendment XII), Schlesinger also lists ways in which a pure national popular vote wouldn’t necessarily elevate legitimacy. He warns that national, popular-vote contests would likely attract a proliferation of special interest candidates devoted to single-issue policy initiatives. Depending on how run-offs are arranged, the winner in the first round could lose in the second round. If there are no run-offs, the winner might only capture 20% of the vote. By contrast, Schlesinger writes, the Electoral College is more insulated from these pressures and promotes the choice between two finalists, likely not defined by a single issue and often in-line with the national popular vote. The possible advantage of an additional, national congressional position is that both sources of quasi-legitimacy can come together to more accurately inform national priorities. Furthermore, the National Popular Vote Interstate Compact already suggests willingness for States to yield some of their own power towards the popular election of a national leader.

This proposal needn’t conflict with many of the founding principles of the country. While Hamilton cautions against a divided executive in Federalist 70, this would be no such thing. Accountability of the executive is still preserved and the factionalism between multiple leaders, each holding the reins of executive power, need not be feared. This congressional leader would reside in the legislative branch and would have no such reins, but could participate in the right-sizing of the president by re-animating the constitutionally-prescribed participation of Congress in foreign affairs. This is essential to realize the prophecy of Federalist 69, explaining how the president is to contrast with a king. It might even afford new avenues for congressional participation in foreign policy. In Federalist 70, Hamilton suggests the main reason the Executive is to host foreign dignitaries is not because the president is best for the job, but rather that a single individual is more pragmatic. It is simply too inconvenient for a legislature to be convened for such a purpose.

Needless to say, this proposal is far-fetched, entirely speculative, and requires the miracle of constitutional amendment to be realized. Nevertheless, it is my hope that the consideration of something so improbable may provoke more imaginative reflections on possibility in our republic. We don’t have to obsess over the president as monarch, especially when the Constitution and Founders seem to prefer that we do not.

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Such a direct election would also create the first single action that all voters in the United States can perform together. The current presidential context is more akin to 51 separate, but simultaneous elections as states are under no actual obligation to have a popular election – this congressional contest would be one event. Such a singular event is fitting of such a singular embodiment of our state.

As for the President, with less “legislative” mandate he or she would have less pressure and expectation to rule by the weak, executive order. Presidential campaigns could then look more like the election for a head of government only. It’s hard to envision the dynamics of such a presidential election, but presidents might feel less need to promise walls and overhauled healthcare regimes, and receive the passion that comes with it. The Electoral College might feel less offensive, as well.

In reality, I present this as a provocative “wouldn’t it be interesting if…?”. There are critical, and likely dispositive, historical and prudential dynamics left unexamined, as well as what our very own sense of national self would think about expressing itself differently. Nevertheless, this structural paradox does seem to frustrate American political expression and contribute to the agitation of its passions. Is this who we are?

It's a little hard to understand the methodology of this draft. No actual discussion of constitutional language, no discussion of history, no connection to any existing literature of any kind—the obvious best route to improvement is to abandon the solipsism and to put the next draft into contact with at least some of the sources, primary and secondary, on the constitutional design and evolution of the presidency. It would also be useful to clarify why the particular vagaries of this moment's political climate are especially relevant to evaluation of the presidency as it has existed since the Second World War, dependent as that is on the relations between civil and military aspects of government, a subject which you never take it upon yourself to mention.

Paper Title

Section I

Subsection A

Subsub 1

Subsection B

Subsub 1

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Section II

Subsection A

Subsection B