Brian Bixby – We're History Wed, 22 Feb 2017 19:11:54 +0000 en-US hourly 1 What is the Electoral College? Thu, 03 Nov 2016 01:52:50 +0000 Voters will not elect the President when they show up to the polls on November 8. The President will not be elected until the new Congress counts the votes of the Electoral College, people whose names would probably be unfamiliar to most of us, on January 6, 2017.

The historical reasons for this odd state of affairs go back to 1787, to the Constitutional Convention. The delegates at the Convention wanted to construct a stronger central government, but they were torn between the desire to give the new Federal Government popular legitimacy and their fears that the people might be subject to unwise temporary enthusiasms, a “mobocracy,” as they called it. The delegates also faced a mechanical problem: the delegates from the larger states wanted the states represented by populations, while the smaller states wanted to retain the equality of representation from the Articles of Confederation under which the nation was still being governed in 1787.

The compromise between the larger and smaller states gave us the Electoral College. This compromise was based in another compromise: the bicameral legislature known as Congress. In the House of Representatives, each state had a number of members in proportion to its population, while in the Senate, each state was represented by two members.

When it came to electing the President, the Constitutional Convention repeated that compromise. It provided that each state would have the power to select a number of electors equal to the number of Representatives they had, thus representing the populace, if indirectly. Each state would also have two more electors for the Senators each had, thus representing state sovereignty. The Convention imagined these electors would be wise men who would vote for the most capable individuals for President and Vice President, rather than being swayed by the man of the hour. Thus the election of the President would not be due to some passing whim of the mob, while still ultimately arising from the people.

Over time, several changes altered the nature of the Electoral College, as the group of electors was called. The rise of national political parties as early as the 1790s meant that the electors ceased to be free agents, and instead became pledged to their parties’ nominees. The state legislatures delegated their power of choosing the electors to the voting citizens, but to maximize their power in the Electoral College, most awarded their electors on a “winner take all” basis to whomever won the popular vote in that state. That franchise originally belonged only to free white men. Constitutional amendments extended the franchise to the former slaves, to women, and to citizens of the District of Columbia, as well as dropping the voting age to 18.

Despite its persistence in our Constitutional framework, the system based on the Electoral College has not been without some difficulties. The original voting procedure, in which the votes for President and Vice President were not distinct, led to the election of a President and Vice President from opposing parties in 1796, and to a tied election in 1800. The Twelfth Amendment, ratified in 1804, fixed that problem by separating the voting for the two offices. In 1824, 1876, 1888, and 2000, the candidate who won the most votes nevertheless lost in the Electoral College. And in three of those elections, 1888 excepted, other bodies (the House of Representatives, a special commission, and the Supreme Court) were needed to settle the election.

So how does this work in 2016? When you enter the voting booth, your ballot may list the names of the Presidential and Vice Presidential candidates, but what you are really voting for is your state’s slate of electors pledged to vote for those candidates. Each state has as many electors as it has Representatives and Senators, hence the electors are roughly proportionate to population, but the system favors smaller states thanks to their equal representation in the Senate. When each state’s governor or designated subordinate executive officer certifies the results of the election, they also certify the slate of electors that will vote for the candidates who won a plurality in that state. (Maine and Nebraska do not follow the “winner take all” rule, but between them command only 10 electoral votes out of 538.) On December 19, 2016, those electors will meet in their respective states to cast their ballots, which again are certified by each state, and forwarded to Washington, D.C. On January 6, 2017, the Congress just elected will convene, open and count the Electoral College ballots, and declare the winner. It should all be straightforward.

Yet inherent in the design of the Electoral College are three possible problems that could affect the outcome. First, because smaller states are overrepresented in the Electoral College and all but two states award them on a “winner take all” basis, it is possible for a candidate to lose the popular vote and yet win in the Electoral College. This has happened most recently in 2000. While such a result is legal, nevertheless it reduces the democratic legitimacy of the presidency. President George W. Bush, the winner of the 2000 election, faced considerable criticism of his legitimacy until the terrorist attacks of September 11, 2001 brought the country together.

Second, the Constitutional Convention imagined the electors as wise men, free agents, not the pledged party delegates they have become. They placed no restriction on which eligible candidate an elector might vote for. So there is no Federal law preventing a candidate from changing his or her mind and voting for someone other than the candidate to which s/he pledged. This switching has happened in elections as early as 1796 and as recently as 2004, though so far it has never changed the outcome of an election. While there are laws in several states binding electors to their candidates, these have never been enforced or tested in court. Conceivably, if a majority of electors agreed to change their votes the same way, we could wake up in January to find they had agreed on a candidate no one had ever considered.

Last, if no candidate wins a majority in this election, either because a third party candidate wins enough electoral votes or because of a tie (if both major candidates won 268 of the 538 votes), the presidential election would be thrown into the House of Representatives, while the Vice Presidential election would be thrown into the Senate. Thanks to another one of those compromises between representing the people and representing the states, members of the House would vote, not as individuals, but by state, with each state getting only one vote. This procedure led to political skullduggery when it last happened in 1824. It would probably be no prettier if it happened now. It might well be that the House would be controlled by Republicans and the Senate by the Democrats. Would members vote for the candidates who won the most popular votes, or for their own party’s candidates? We might end up with a President and Vice President from different parties, a situation that has not happened since 1796.

Just as the Electoral College was a compromise between different requirements and political positions in 1787, so today it is an awkward compromise between the design of 1787 and the idea of a popular vote that is used for most other elected offices. Eliminating the Electoral College would require passing a Constitutional amendment, itself a complex process. It would take a crisis to drive such an effort. Just having the winner of the popular vote lose in the Electoral College is apparently not enough; the calls for reform after that happened in 2000 quickly died out. It will probably require the people to lose faith in the Electoral College entirely before a serious effort will be made to eliminate it.

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Winter’s Missionaries: The Shakers Go West Wed, 01 Apr 2015 15:47:01 +0000 It has been an unpleasantly cold and snowy winter across much of the eastern United States. Hardly great weather for taking a long walk. Yet 110 years ago, three men set out on a similarly bitter cold January 1 to walk from upstate New York to Virginia, and then over the Appalachians to Kentucky and Ohio. These were Shaker missionaries. Their goal was to spread the Shaker faith to the western United States.

The Shakers are an unusual Christian group. Because lust was the original sin, they require members to be celibate. They also practice the communal sharing of goods, as did the primitive Christians. To facilitate this, they live apart in their villages, which also strengthens their faith and keeps them from the sins of “the World.”

While Shakerism originally began in Manchester, England, it was here in the United States that it flourished. From 1780, the faith spread across New York and New England until by 1800 there were eleven Shaker villages, with anywhere from 50 to 400 adherents in each.

As the nineteenth century began, the Shaker leadership heard of a religious revival that had begun in Cane Ridge, Kentucky, in 1800. Along the frontier, people were flocking to camp meetings. They strained to hear preachers offering a gospel that rejected the predestination of the Calvinist denominations and promised a restoration of Christ’s church in time for the rapidly approaching Second Coming. It was said that many people were overcome by the Spirit and experienced involuntary movements called the “jerks.” To the Shaker leaders, this sounded similar to the ecstatic dancing that had given their faith its popular name. So they decided to send out missionaries to see if they could make converts in the remote lands of Kentucky and Ohio.

Three men with a horse set out on that New Year’s Day in 1805. They were a strange lot. One, Issachar Bates, was a hardy Revolutionary War veteran and father of nine children who had embraced the Shaker beliefs in pacifism and celibacy, a man noted for his musical talents and his tendency to use vulgar language. Another was a man who was so short and young-looking that people mistook him for a child, who bore the appropriate name of Benjamin Seth Youngs. Their official leader was John Meacham, the son of the Shaker elder who had gathered the faithful into their villages, and who was already an elder himself.

They walked into one of the more severe winters of their era, with many cold and snowy days. Still they made progress, sometimes as much as thirty miles in a day, helped by the hard-frozen roads. Finding lodging was also a challenge. There were few inns, so they usually stayed with families willing to accept the Shakers as guests. As the Shakers had been maligned in the press as Papists and wild fanatics, they were not welcome everywhere. Nor were they happy to stay with some families, whether because of their hosts’ manners, faith, or ownership of slaves. (The Shakers did not believe in slavery and freed their slaves.) So the missionaries had to share in what circumstances their hosts offered in way of food and bedding. It was a chancy life. All three men fell ill along the trip. Still, they traversed the Cumberland Gap on February 25, and came into Kentucky. And on March 13, they reached Cane Ridge, the center of revival activity and their destination.

There in Cane Ridge the three missionaries met with Barton Stone, one of the leading “New Light” ministers of the revivals. Stone was not inclined to join the Shakers, but he was sufficiently impressed to suggest they visit one of his fellow revivalists, Richard McNemar, who lived across the Ohio River in the new state of Ohio. Weary but hopeful, the three men set once again on their travels. This time their efforts would be crowned with success. On March 22, having traveled by their own estimation 1233 miles over 81 days, they stopped at the farm of Malcolm Worley on Turtle Creek. Malcolm was one of Richard McNemar’s parishioners. He was also newly remarried, and his wife was visibly pregnant, hardly a likely candidate for a sect which preached celibacy. Still, he engaged the Shakers in deep earnest discussions, and on the 27th, he and his wife converted to the Shaker faith. Richard McNemar would convert a month later and become a leading figure among western Shakers.

It was the start of a new world for the Shakers. They spent the next several years preaching across Ohio and Kentucky, making new converts and stirring up opposition by other religious leaders, sadly including Barton Stone. The Shakers would eventually found seven villages in the West, including Union Village, which was established on Malcolm Worley’s farm. The Western expansion roughly doubled the number of Shakers over the next two decades. The first Shaker printing press would be erected in the West. With so few of the “old” Shakers from the East to help educate the new Shakers in the West, Benjamin Seth Youngs worked with other western Shakers to develop an extensive written theological statement to explain their faith. For more than a century, there would be Shakers in Ohio and Kentucky.

The Cane Ridge revivals led to increased religious fervor in the West, and to religious diversity as well. New groups such as the Christian Churches and Disciples of Christ would emerge in their wake. The Shakers contributed to this diversity, not so much by numbers, but by successfully bringing their distinctive communal societies to the West.

Moreover, their expansion to the West made the Shakers a national success story as a communal movement. Other American reformers, whether Transcendentalists or followers of Charles Fourier, and even someone such as Friedrich Engels, would cite the Shaker success as evidence that communal living could be made to work.

As for the three missionaries who set out in 1805, all would go on to leadership positions among the western Shakers, though none would die in the West. John Meacham became the elder of the large Pleasant Hill village in Kentucky, but was recalled to the East in 1818, where he lived peacefully until his death in 1855, never again holding a leadership position. Issachar Bates traveled the West for several years as a roving missionary, before being asked to serve as an elder, first at the short-lived community at Busro, Indiana, and then at the Watervliet, Ohio community in 1824. He was already 66 when he accepted the latter position, but led the community for a decade before being allowed to retire back east, where he died a few years later in 1837. And Benjamin Seth Youngs became the elder of South Union, Kentucky, until he was asked to return east in 1836, the last of the original missionaries to go home. Like John Meacham, he would die in 1855, marking the end of an era for the Shakers. Although they did not know it, the Shakers would never again enjoy such success.

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What on Earth is a Filibuster? Mon, 08 Dec 2014 18:52:52 +0000 The filibuster is once again in the news, as Republican Senators plan to meet behind closed doors on Tuesday to discuss its future. The filibuster is a peculiar and undemocratic practice of the United States Senate. It doesn’t exist in the House of Representatives. While the term has been broadly used to describe any kind of dilatory tactic that prevents a measure from being passed, in the Senate it specifically describes the practice by a determined group of Senators to deliver lengthy speeches and use parliamentary procedures to “run the clock out” on a Senate session and prevent a vote on the measure, killing the measure when the Senate session ends. By means of the filibuster, a determined group of Senators can prevent the majority from passing legislation. Defenders of the practice claim it is integral to the traditions of the Senate, and a necessary check against hasty legislation. In truth, the filibuster was the accidental byproduct of two Senate rules. And its fortunes reflect a conflict in the Senate between the privileges of individual Senators and the majority’s need to conduct business.

The filibuster was neither a feature of the Constitution, nor part of the Founding Fathers’ plan for the government. The Constitutional Convention did expect the Senate to “cool” hasty legislation passed by the House, but it hoped to achieve that by designing the Senate to be a more stable body, its members selected by the state legislatures for longer, overlapping terms of office. Except in a few cases, such as ratifying treaties when a two-thirds majority is needed, the Constitution requires only a simple majority to pass measures in the Senate.

The Constitution also requires both chambers to adopt rules for their proceedings. In its early days, Congress needed no rule to force the end of a debate and take a vote. The House and Senate were both small bodies; the First Congress ended with only 65 Representative and 26 Senators. Members could talk all they wanted and still leave plenty of time to consider every bill. It was the common expectation across both chambers that eventually members would stop talking and a vote would be taken on every bill.

By 1811, the House had grown to 141 members, and had become difficult to manage. So the House reformed its rules to limit debate and speed up business. Thereafter, a majority could use a motion called the “previous question:” this ends debate and forces a vote on the measure under consideration.

Being a smaller body, it wasn’t until the 1830s that the Senate began to have problems managing debate. Members discovered that they could kill a measure supported by the majority simply by taking the floor and talking until the Senate adjourned or the measure was withdrawn. Thus the filibuster was born. It was a weapon used by a minority of Senators to prevent the majority from passing legislation.

Reformers who hated the filibuster discovered two quirks in the Senate rules that prevented them from abolishing it. Back in 1806, the Senate had abandoned the “previous question” motion because it was rarely used. So it was unavailable. The more important obstacle was that the Senate’s standing rules required a two-thirds majority to change them, unlike the House, where a simple majority sufficed. And there were always at least a third of the Senators, usually in the opposition, who opposed abolishing the filibuster.

Over time, Senators came to view the filibuster as part of the Senate’s tradition of courtesy to individual members, as opposed to the majoritarian spirit of the House. They rationalized the filibuster’s existence as part of the checks and balances integral to Constitutional government. With both tradition and the interests of the minority against it, all efforts to reform the filibuster failed until 1917.

In that year, a small group of Senators filibustered a bill President Woodrow Wilson regarded as essential to prepare for America’s entry into World War I. The President decried the undemocratic nature of the filibuster and appealed to the people. With both the President and popular opinion against it, the Senate reluctantly adopted a procedure to end filibusters: a complicated process called cloture, which would stop debate, but only after several more days had passed. The Senate also required a two-thirds majority to invoke cloture. Not surprisingly, over the next several decades, cloture usually proved ineffective in ending filibusters.

In the years between 1917 and 1964, the filibuster assumed its modern form. Filibusters were few, and reserved for major issues. While they were portrayed as the last defense of the rights of a minority against the tyranny of the majority, in fact, many of the filibusters were staged against civil rights bills designed to protect racial minorities’ rights. Far from the heroism of a Jimmy Stewart staging a filibuster to expose corruption in Mister Smith Goes to Washington (1939), the typical filibuster was more like segregationist Senator Strom Thurmond’s record-setting twenty-four hour speech against the 1957 Civil Rights Act.

The struggle over civil rights bills gave new energy to reformers’ efforts to curtail the filibuster. Their first major success was in using cloture to end a filibuster and force a vote on the 1964 Civil Rights Act. In 1975, they succeeded in lowering the threshold for cloture from two-thirds of the members present to three-fifths of all members, which effectively reduced the number of votes needed to invoke cloture from 67 to 60.

It was not reformers, though, but the press of the Senate’s business that ended the classic talking filibuster. With the number of measures rising every year, the Senate could no longer afford to tie up the floor in futile debate. Procedural innovations in the 1960s and 1970s, such as “holds,” universal consent agreements, and a tracking system paradoxically made it easier for individual members to block some measures without resorting to lengthy floor speeches, while allowing the leadership to expedite the voting on bills they deemed important. Starting in 1973, the Senate also passed legislation making certain kinds of critical measures, such as budget resolutions, immune to filibusters by setting sharp limits on allowed debate. Cumulatively, these measures have eliminated the talking filibuster by making it unnecessary to block legislation, and also reducing the opportunities for it.

The Senate further limited the use of the filibuster in 2013 through the “Constitutional” or “nuclear” option. Since the Constitution requires only a majority vote to pass most measures in the Senate, Senators frustrated with the filibuster have argued since 1917 that the supermajority required to overcome one is unconstitutional. They insist that a filibuster can be stopped by a simple majority of the Senate sustaining a point of order to that effect. But since Senators hated to challenge existing Senate procedure, they were reluctant to embrace this idea until 2013, when anger over minority filibustering of judicial nominees led Majority Leader Harry Reid to use the Constitutional option to prohibit filibusters on certain Executive Branch and judicial nominees.

While some, such as Senator Lindsey Graham, have called for restoring the filibuster to include nominations once again, the trend is clearly in the other direction. It would be surprising if a majority of Senate Republicans support a restoration of the filibuster this Tuesday. And now that it has been used, the Constitutional option will be a tempting possibility for any future Senate majority frustrated by filibusters. We have already seen the demise of the talking filibuster. We may soon see the end of the filibuster altogether.

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Protecting the President: How the Secret Service Got the Job Wed, 22 Oct 2014 13:08:43 +0000 Recent controversies have raised questions about the Secret Service’s professionalism and ability to protect the President. This, in turn, raises another question: what is a “secret” service doing in the high-profile job of protecting the President? Why isn’t the FBI doing this job?

The answer to these questions lies in the Civil War, when the Federal Government needed spies to collect intelligence on the Confederacy and its troops. They initially entrusted that job to the famous detective Allen Pinkerton and his namesake agency. This was the first “Secret Service,” which would continue under various leaders until the end of the conflict.

The Civil War proved to be incredibly expensive for the Federal Government. To finance the war effort, the Treasury issued paper currency for the first time in its history. The economy depended on the soundness of that paper currency. Yet counterfeiters quickly began duplicating the new United States Notes. To keep counterfeiters from wrecking the economy, the wartime Secret Service began to track down and arrest them.

When the war ended, the original Secret Service was disbanded. Yet the problem of counterfeiting remained. So the government decided to revive the Secret Service as a branch of the Treasury Department, dedicated to hunting down counterfeiters and putting them out of business. This has remained one of the central missions of the United States Secret Service, and the reason why it was part of the Treasury Department from its inception in 1865 until 2003.

During its long existence, the Secret Service has taken on other roles. It helped to break up the first Ku Klux Klan in the 1870s, and operated an espionage network during both the Spanish-American War and the First World War. But of the other duties it has taken on, only protecting the President remains significant. And that duty the Secret Service acquired by accident, and held onto despite controversy.

The assassinations of two Presidents within a generation (Lincoln in 1865 and Garfield in 1881) had demonstrated the vulnerability of the nation’s chief executive. When the Secret Service in the course of an investigation learned about threats to the President in 1894, it posted two men at the White House to guard President Cleveland. There was literally no one else to do the job, for the Executive Branch did not maintain a police force. New threats later that year led Secret Service officials to post men at the Clevelands’ summer retreat. Thereafter, the Secret Service continued to protect the President.

But the protection was illegal. Congress had not authorized it. And when it became public knowledge in 1898, politicians denounced the practice as an ugly manifestation of monarchical spirit. Nevertheless, the Secret Service maintained the official detail while Congress dithered about how to protect the President. The assassination of President McKinley in 1901 demonstrated the continued need for protection. Finally, a jealous Congress authorized the Presidential detail in 1906, with the important rider that the authorization had to be renewed every year. It was not until 1951, after a failed assassination attempt on President Truman, that Congress decided to make protecting the President a permanent duty of the Secret Service.

Congressional ire at the Secret Service for exceeding its official responsibilities indirectly led to the creation of a rival agency. Just as the Secret Service had waded in to provide Presidential protection because there was no one else to do it, so, too, it had begun the practice of lending out agents to other branches of the Federal Government that required investigators. That, too, had not been authorized by law, and, once again, when congressmen found out about it, they set limits. In 1908, Congress prohibited the Service from taking funds from other government agencies or lending its agents to them.

Attorney General Charles Bonaparte (a grand-nephew of Napoleon) had frequently borrowed agents to support Justice Department investigations. To circumvent this new law, he just simply hired away a number of Secret Service agents for his new Bureau of Investigation, which would be renamed the Federal Bureau of Investigation (FBI) in 1935. The FBI would grow to become the best-known federal law enforcement agency.

Government agencies tend to be protective of their turf. As it expanded, the FBI would take on some of the roles the Secret Service once had, such as domestic counter-intelligence. But the Secret Service has successfully resisted the FBI’s repeated attempts to make the Service a branch of the FBI or take over the Service’s two core roles of protecting the President and tracking counterfeiters.

Even today, the Secret Service still devotes much of its manpower to its original mission of pursuing counterfeiters. Indeed, it has expanded that role into investigating cybercrimes that could compromise the nation’s financial systems. But it’s the mission of protecting the President, accidentally acquired though it was, that has come to define the Service in the public’s eye. The battle against counterfeiters may wax and wane without the public being too concerned, but a single intruder at the White House is enough to force the resignation of the Director of the Secret Service.

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