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  • Writer's pictureDan FitzPatrick

Bounty Hunting in the Digital Age

October 2017

Just when you thought (hoped?) things might be settling down in Washington, the Wild West has come to the West Wing. Hustler magazine publisher and self-described free speech advocate Larry Flynt has offered $10 million for information leading to the impeachment of President Donald J. Trump. I half expect to soon see black-and-white posters with Trump’s face under the words “WANTED: True or Fake News.”

Adding to the circus-like atmosphere, last week, Rep. Al Green, D-Texas, filed four articles of impeachment against Trump. According to news reports, one article accused Trump of “inciting white supremacy, sexism, bigotry, hatred, xenophobia, race-baiting, and racism by demeaning, defaming, disrespecting and disparaging women and certain minorities.” Another criticized him for alleging that several million people illegally voted in the 2016 election. A third accused Trump of bringing “shame and dishonor to the office of the presidency” because his actions associated it with “causes rooted in white supremacy, bigotry, racism, anti-Semitism, white nationalism and neo-Nazism.” And the last claimed he has “encourage[ed] law enforcement officials to violate the Constitutional rights of the suspect in their case.” No action was taken on Rep. Green’s articles and he chose not to force the issue, so the articles simply expired.

As I’ve written previously (“The Russians Are Coming”), given the current make-up of Congress, impeachment is not likely to happen, at least any time soon.

Article II, Section 4 of the Constitution reads: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Much commentary and analysis exists surrounding the meaning of those last four words, and Congress has historically regarded impeachment as a power to be used only in extreme cases.

Only two presidents, Andrew Johnson and Bill Clinton, have been impeached by the House; both were acquitted by the Senate, and neither was removed from office. In addition, articles of impeachment were prepared against Richard Nixon, but he resigned prior to any vote by the House.

The Nixon and Clinton impeachment proceedings were disruptive, divisive and left scars on the body politic. I doubt there is much real appetite for a repeat. So at this point I think this talk of impeachment is all political theater – “sound and fury, signifying nothing” – worthy of P.T. Barnum (who was himself a politician).

I had another somewhat related conversation recently. I met a very intelligent businessman, a native of another populous democratic nation. We had a fascinating and informative discussion of world affairs, offering considerable insight into current geopolitical issues and challenges. When the topic turned to the United States, he questioned the legitimacy of our presidential election and argued that the Electoral College should be abolished. His argument was that “one person, one vote” is more democratic.

I have heard this argument before, and respect it, but cannot agree, because it fails to address the fact that the United States is a representative democracy, not a direct democracy. Our structure incorporates “one person, one vote” to elect representatives to legislative bodies at the state and federal levels. This approach was extended to election of the president and vice president through the mechanism of the Electoral College incorporated in the Constitution (Article II, Section 1, Clause 3, as modified in 1804 by the Twelfth Amendment). It provides for indirect election of those officials via electors chosen by each state in number equal to that state’s combined total of senators and representatives. In this manner, it incorporates the logic behind the constitutional set-up of Congress as a whole, which offers greater relative representation to the smaller states to help offset dominance by the larger.

My new friend argued that the Electoral College should be abolished, and offered the examples of Hillary Clinton and Al Gore, who each won the popular vote but fell short in the Electoral College. When I shared the history and rationale behind the College, he offered that we should “simply” amend the Constitution to abolish it.

Constitutional amendments are anything but simple. They must be proposed by Congress (with a 2/3 vote in both houses) or by a constitutional convention called by at least 2/3 of the state legislatures (none of the 27 current amendments were proposed by constitutional convention). The proposed amendment must then be ratified by at least ¾ of the states (38 out of 50) in order to become part of the Constitution.

And they generally are not fast. The fastest to be ratified was the 26th Amendment (giving 18-year-olds the right to vote) which took only six months and 11 days to propose, adopt and ratify. The longest was, interestingly, the 27th Amendment (prohibiting any law that increases or decreases the salary of members of Congress until the following term) which was submitted to the states for ratification on September 25, 1789 and became a part of the Constitution on May 5, 1992 (202 years, 7 months and 10 days later!). Excluding both of those instances as outliers, the average time to enactment appears to be just a little under two years.

A ratification timeframe of two years could permit an abolition amendment to be effective in time for the 2020 presidential election. But how likely is it that, given the results of the last election? It has been said that eliminating the Electoral College would allow a handful of populous states (mostly on the coasts) to determine all future presidential elections. I believe it would be a tall order to convince enough of the smaller states to vote to abandon this constitutional protection to have their voice heard. For this reason alone, I think the prospect of a constitutional amendment to eliminate the Electoral College is very close to zero.

Why do I bring this all up? Because I frankly think that talk of impeachment and abolishing the Electoral College is a colossal waste of time and effort. Time and effort that could be more productively put to use in addressing the very real and pressing issues we face as a country. Data mining to undermine our leaders and tinkering with our Constitution are not the paths to security and prosperity for this nation. Maybe we should put that on a poster!

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