Writing in the Washington Post, Derek T. Muller, an associate law professor at Pepperdine University, offers the following solution to the nation’s pressing problem that American voters may elect Donald Trump as president next November:
If they choose, state legislators can appoint presidential electors themselves this November, rather than leaving the matter of apportioning electoral college votes by popular vote. Then, via their chosen electors, legislatures could elect any presidential candidate they prefer.
Now, I have no idea if this is an accurate account of the constitutional legal position, and I don’t intend to spend any of my not-very-valuable time finding out. It isn’t going to happen, and it would be a thoroughly bad thing if it did. If the distant prospect of President Trump is enough to provoke editors and law professors to such extremes of constitutional guardianship, however, we are back in the days of McCarthyism and the Left’s unhinged reaction to it. To that combination of excesses Peter Viereck gave a classic cool conservative response: “I am against hysteria, but I am also against hysteria about hysteria.”
That is not to deny that Donald Trump is indeed a serious problem except to his supporters — and to those Democrats who believe they will defeat him in a landslide. If he is to be handled sensibly by conservatives and Republicans, however, they must overcome their current panic, make a realistic assessment of the Trump threat, and then work out how to defeat him or, if that fails, to restrain him. It would also make sense if, in pursuing these aims — and however the November election threatens to turn out — they try to retain within the GOP’s electoral constituency those new and former Democrat and independent voters who have swelled the numbers in this year’s Republican primaries. That’s a hard call. But Trump and his supporters are not the same animal. Our handling of the insurgent billionaire should reflect that distinction.
Victor Davis Hanson has already shot my fox when it comes to making a realistic assessment of Trump. Briefly summarized, Victor, who opposes Trump, concludes that some of the attacks on him are exaggerated and that he is no worse than Barack Obama or Hillary Clinton or, come to that, Bill Clinton. We might all wish to set a higher bar for a Republican nominee than that. For the purpose of judging Trump as a potential candidate and president, however, it is enough to know that he faces several unraveling business scandals; that he is on repeated record as making crude, vulgar, and shocking generalizations about women and other groups; that he repeatedly proposes actions and policies that would violate the U.S. Constitution; that he has unprecedentedly high negative ratings among Republicans and independents as well as Democrats, and that all the usual indicators suggest that he would lose a general election in a landslide.
To be sure, even those commentators convinced of this often cross their fingers when saying so. Trump is such an unusual candidate, he has broken so many campaigning (and even ordinary social) rules without suffering the usual consequences, and he has confounded so many confident predictions until now, that it feels risky to predict his defeat. But this is magical thinking or at best magical hesitation. As Damon Runyon famously wrote, “The race is not always to the swift . . . but that’s the way to bet.” And since all the usual indicators predict an anti-Trump landslide, that’s the way to bet too.
Setting a course to prevent this means proposing actions in three sets of circumstances: first, during the remaining primaries; second, before and during the GOP convention; third, after the convention (if Trump secures the nomination). Our actions should be determined by two main considerations, namely that we are at least as opposed to Hillary as to Trump (in my own case, much more so), and that in order to keep as many people inside the GOP tent as possible, we must beat him fair and square. What we should do in the unlikely event of a President Trump will also be covered under these three headings.
As a supporter of Senator Cruz, I find it easy to prescribe what we need to do during the remaining primaries: namely, rally around him. An ideal result of our rallying would be if the senator were to arrive at the convention with — in ascending order of the ideal — a substantial second place in delegates, a plurality, and a majority. A majority or even a plurality would be incontestable examples of beating Donald Trump fair and square. Even the defeated Trump would have to acknowledge that. (Either result would also give Cruz the halo of a come-from-behind winner.) If Cruz were to overtake Trump in the second or later ballots as a result of delegate switching under the existing rules, that would also count as a “fair and square” result. But it would be a result that requires careful handling and some restraint by the party bosses — especially if Trump’s initial delegate total is very close to 1,237. So, indeed, would any result that denies the front-runner the prize.
That brings us to the convention itself — presumably a divided and uncertain one. It would be folly for the establishment to try foisting one of its favorites on it — whether a Rubio, or a Kasich, or even a shopsoiled deus ex machina who has held aloof from the primaries such as Mitt Romney. The rules make allowance for this possibility, but it would strike everyone (even its beneficiary) as a stitch-up by the party bosses. It would probably lead to one or more walk-outs and even a third-party candidature. It would not satisfy the criterion that the nominee’s victory should be fair and square. It shouldn’t be seen as a serious option — except in the unlikely circumstance that it has the agreement of the leading contenders.
Cruz is therefore the near-certain victor of a convention that rejects Trump without some prior negotiated agreement between candidates or change in party rules. (Next to Trump and Cruz the third most likely outcome is deadlock.) Even though such a Cruz victory would be fair and square, however, neither Trump nor his supporters would consider it so. The resulting bitterness would weaken Cruz in the general election, perhaps this time via a walkout by Trumpites and a third-party bid. Anti-Trump commentators and conservative intellectuals might consider the world well lost and accept likely electoral defeat as the price of avoiding the Trump stain. But elected politicians and party managers — the dreaded establishment — will want to keep the Trump forces inside the party. They will see this widening of the party as a path to electoral victory. And even without that incentive, they have an obligation to defend the institutions and policies they represent even in extremis. Senator Jeff Sessions was doing exactly that, perfectly honorably, when he endorsed Trump in return for the latter’s adoption of immigration policies that the senator thinks essential to the nation’s welfare. Sessions was nailing down the promise of a restrictionist immigration policy from a candidate who, though he speaks from several sides of his mouth, nonetheless prides himself on making deals. Other senior Republicans who see electoral catastrophe as one result of a narrow and bitterly contested victory by either Cruz or Trump will be looking for ways of reconciling them for reasons of party survival and to avert the victory of Mrs. Clinton.
My colleague, Ramesh Ponnuru, has suggested one such way in a column for Bloomberg.
Simply put, it is the application of proportional representation to the convention (maybe not until after the first ballot). Say there are three candidates who have survived the primaries. Each delegate, instead of casting a single vote for one of them, numbers all three in order of preference. When the candidate placed third in the ballot drops out, his votes are re-distributed to the other two. One of them then wins, and he does so with more than 50 percent of the vote. The merit of the system is that it blends democracy, fairness, and the soothing of wounded pride. How likely is it to be adopted? In the long run, quite likely because it would raise the hurdle for insurgent candidates, which will now be an establishment aim. On this occasion, not very likely. Either Trump or Cruz, or perhaps both, will be sufficiently confident of victory to resist any change in the rules. And to push through such a change against their resistance would provoke charges of an illegitimate candidate and spur a third-party bid.
#share#The more conventional method of determining the nominee in a way that would unify the GOP is a repeat of the 1960 Park Avenue Treaty between Vice President Nixon and Governor Nelson Rockefeller prior to the convention. Once it is clear that a candidate is almost certain to prevail, his main rival agrees to support him in return for assurances on how and with whom he will govern. The coronation then goes ahead. If this model is to work, it has to be clear before the convention that either Trump or Cruz has the nomination sewn up. That isn’t clear yet. Until it is, all they can agree about is to cooperate after the nomination process and voting process are over and done with. At that point the same negotiation occurs with the winner enjoying greater leverage, but the coronation almost always goes ahead. Even so, whoever emerges the loser on this occasion will come under great pressure from some supporters to walk out rather than agree on a unity program. Since walking out would mean losing the chance to shape the winner’s election platform, likely administration personnel, and vice presidential choice, neither Cruz nor Trump would be likely to do so. Most political professionals will agree with them.
But some will not. They will be joined by others — elected representatives, former administration officials, academics, columnists — who either oppose the policies of the nominee strongly or believe simply that he is unfit to be president (in the case of Trump) or too narrowly conservative (in the case of Cruz). Of those dissidents some in both camps will retreat into private life for the duration; those opposed to Cruz will probably drift out of the politics they have embraced only recently; those most passionately opposed to Trump have made it known they will support a third party rooted in conservative ideas.
If the choice between Clinton and Trump is one between evils, which is the greater evil?
And that brings us to the general-election campaign. For those who support a third party of a clearly conservative type have to confront the strong likelihood that other things being equal, it will help elect Hillary Clinton. But if the choice between Clinton and Trump is one between evils, as they plainly believe, which is the greater evil? It seems to me that when we break this question down, it is a choice between an evil that is erratic, inexperienced, populist, reliant on fragile media connections to its largely humble supporters, lacking in intellectual, bureaucratic, and media firepower, and opposed by almost all the major institutions of modern society; and an evil that is remorseless, experienced, elitist, reliant on influential power networks going deep at home and abroad, able to call on people of high ability at all levels, and supported by most modern social institutions. Moreover, the U.S. Constitution was written more or less explicitly (as several anti-Trump dissidents have pointed out) to restrain, control, and frustrate the kind of open risks that a demagogue like Trump poses. Yet one cannot ignore the fact that it has been successfully perverted into a channel for the hidden dangers of the administrative state that Hillary Clinton persuasively represents.
One might sum up the differences between them as follows. Both aspire to follow America’s first black president who as such is the least impeachable president in U.S. history. As America’s first woman president, Mrs. Clinton would be only slightly more impeachable than Obama. Donald Trump, on the other hand, would be America’s most impeachable president before he set foot in the Oval Office. He would have the support of neither party in Congress, the hostility of the media, the opposition of corporate America, and the resistance of the bureaucracy. He would find himself blocked, on occasion rightly, every time he sought to challenge some established policy popular with Congress or the bureaucracy. However boldly he acted, he would soon become a byword for gridlock. And if he seriously rebelled against these limits out of frustration, he would risk constitutional punishment. That is why those Republicans advising a possible Nominee Trump will strive to ensure that his vice-presidential running mate is a sound conservative of standing and ability. It may prove to be the most important decision of the campaign.
And Hillary Clinton? All that she need do to propel America still farther towards an oppressive bureaucratic future is to go with the flow. Alas, she would do a great deal more than that.
What follows from this contrast is that conservatives cannot support a new party that presents itself as an alternative GOP. That would be to assist what is clearly the greater and more threatening evil. It would ignore the comforting constitutional restraints that a President Trump would face. And it would also foolishly limit the new party’s electoral prospects. Any serious venture of this kind must appeal to the disillusioned supporters of both parties. It must point to the failings of both Democratic and Republican candidates — Clinton’s reckless disregard of national security as well as Trump’s suspect business dealings. It should offer a ticket balanced in partisan terms as well as philosophically, regionally, and by gender. And unless it is to be an exercise in virtue-signaling, it should take the most promising and realistic path to electoral success, which is a bipartisan one. Would its conservative designers find counterparts on the left? Well, there might be no lack of centrist Democrats anxious to correct the current direction of their party. Former Senator Jim Webb comes to mind.
#related#That said, the record of third parties offers only a modest prospect that such a party would actually win. The most that conservatives can expect is that it would move the national political debate towards more decent and realistic policies while tipping the electoral balance towards the Republican rather than the Democratic ticket. And that hope may be excessive. It is all the more important, then, to get the GOP ticket as right as we now can. As a practical matter, that now means either choosing Cruz to lead an insurgent campaign that would seek to hold onto Trump’s new populist voters, if possible with his help; or, if that fails, then accepting Trump’s victory in the nomination stakes in return for his agreement with Cruz on a range of conservative essentials. The former result would be plainly better, not least because it would have a far better chance of defeating Hillary. But either way it’s a messy exchange of new themes in the conservative message for a new conservative constituency. And if we talk honestly and listen sincerely to our new companions, exchanging hard truths as my colleague Kevin Williamson rightly advocates, but in both directions, then we may enlarge the national audience for a conservatism not so very different from today’s but perhaps slightly more concerned with middle-class economic security than with opportunity for the entrepreneur, less attentive to corporate America and the Chamber of Commerce, more so to the low paid, not forgetting the invisible victims of over-regulation in the workplace.
It’s a risky strategy. It probably won’t win in November. It may not retain the Trump voters for the long haul. But it’s temporary in other respects too. And if it fails, it can be reconsidered and re-formulated.
Above all, it’s like celebrating your 90th birthday — not ideal but better than the alternative.