The Old College Try
Conservatives shouldn’t complain if Romney pulls a Gore.

Model showing the popular-vote edge going to Romney (CBS News/YouGov)


Daniel Foster

The Founders designed the College this way in part to blunt the power of emergent factionalism. And it worked. In the words of Tara Ross, one of the College’s most able defenders, the current electoral system means that the president must secure the support of a broad coalition of “heterogeneous entities,” themselves “safe” factions “composed of individuals with a wide variety of interests.” Benjamin Harrison lost the popular vote to Grover Cleveland in 1888 because of the latter’s overwhelming strength in the South, but won the presidency with a coalition of states in the Northeast and Midwest and along the Pacific coast. Likewise, when Bush defeated Gore despite losing the popular vote, he did so while winning 30 states.

This stuff matters, and should be remembered if Romney gets Gored. Conservatives tend to focus on the radical reimagining of the function of government at work in our courts and legislatures. And understandably so, as in this battle the progressives have us routed and the situation is dire. But just as important is the ongoing reimagining of the structure of government, the century-long effort to reshape the ingenious institutional architecture that has so far preserved the republic.

The Founders envisioned an executive with a narrow cluster of heavy-duty powers. Instead we have an executive who presides over a sprawling and amoebic regulatory state, often ruling with delegated legislative authority, or by fiat. Republicans are not innocent in this devolution. Nor are they innocent in the crisis of the Senate, which the Founders designed to be both anti-democratic and counter-majoritarian. While it has lost much of its anti-democratic character — thanks a lot, Seventeenth Amendment — it retains, by a thread, a number of counter-majoritarian safeguards, not least of which is the “filibuster,” frequently all that stands between the American people and the legislative exuberance of our most ambitious technocrats. Yet it was Republican Trent Lott who coined the term the “nuclear option” — which would effectively neuter the filibuster — and Republican Bill Frist who most prominently threatened to use it.

The constitutional order can’t afford another such betrayal of convenience on the matter of the Electoral College. If President Obama is reelected without a popular majority, Republicans should, by all means, use this fact as leverage in negotiations over such matters as the “fiscal cliff.” They should blast the talking point until their collective faces turn blue. But they should not, under any circumstances, suggest that the president’s victory is anything less than uncontrovertibly, unquestionably, unambiguously constitutional and legitimate. If prominent Republicans were instead to come out in favor of, for example, the National Popular Vote — a legally dubious conspiracy of eight-and-counting states to undermine the College by awarding their electoral votes to the national popular-vote winner — it would amount to a tactical tantrum with potentially disastrous long-term strategic consequences.

Of course, there is one thing Mr. Romney can do to forestall the whole question: Win — big.

Daniel Foster is news editor of National Review Online.