Patrick Healy, Assistant Opinion Editor
The Twelfth Amendment is the stuff of Democratic Party nightmares. It draws scrutiny every time a president loses the popular vote but is elected by the Electoral College, as was the case for Republicans George W. Bush and Donald J. Trump. While I wholeheartedly agree that the Electoral College should go, I want to focus on the less controversial section of the amendment — the part that actually led to its adoption.
The election of the president and vice president spelled out in Article II of the Constitution stipulated that the person with the most number of electoral votes became the president, and the person with the second most votes became the vice-president (VP).
The Founders believed that the original Electoral College would allow the president to be chosen by “men most capable of analyzing the qualities adapted to the station” — Alexander Hamilton’s way of saying powerful white men. They didn’t devote much attention to the identity of the VP, rightfully believing them to be much less important than the president, and critically, they didn’t accurately envision the development of political parties that would define the loyalties of even the aristocratic electors.
Political parties, despite the Founders’ intentions, promptly formed and nominated their own candidates. In June of 1804, having witnessed the acrimony between the accidental pairing of Federalist President John Adams with Democratic-Republican VP Thomas Jefferson, the Twelfth Amendment was ratified. The amendment modified the Electoral College to have electors vote for a president and vice-president separately, thereby allowing a “ticket” of two like-minded candidates to win both positions.
To most people, then and now, the potential for a split-party White House was a folly by the Founders, a constitutional aberration to be erased. Only Abraham Lincoln has intentionally chosen an opposite-party VP since the amendment’s adoption, and it didn’t exactly work out.
Despite the conventional wisdom and historical evidence supporting the same-party ticket, we should restore the runner-up VP. My implied support for a potential Biden-Trump White House may remind grizzled American voters of a child’s embrace of an open flame, but they should consider the precedent of the other branches of government.
It’s well-established in the American political lexicon that the party with a majority of members “controls” Congress. Though the members of the minority party might as well be absent from votes, they are not excluded from deliberation. The same can be said for the Supreme Court, in which a simple majority of liberals or conservatives renders the other group mere dissenters.
The deliberative capacity of minority party legislators are their most important asset. They can delay a vote or register their disapproval for the record. Moreover, they are privy to the briefings available to members of the majority party. Though rare, they can wield temporary power if a majority party legislator is absent, and can even gain a majority if a member is absent, resigns or dies, mirroring the role of a VP if the president becomes temporarily incapaciated, dies or resigns.
The political consequences of death or incapacity are thus much starker in the legislative branch and judicial branches — where the death of a majority party member may completely flip control of the body — than in the executive branch, where the death of a president merely transfers power to an ideological ally in the VP. The only case where the party of the presidency would flip is if the VP dies and the speaker of the House or Senate majority leader is of the other party.
Even if special elections or nominations replace the member, the opposite party often benefits from these as much as they do from the absence of an opposite party member, since they might insert one of their own into the vacancy. Presidential succession is so rare, especially given modern medicine and security, that the probability of the minority party candidate ascending to the presidency can be justified by their otherwise meager power relative to their second-place-worthy support.
I feel compelled to explain why this wouldn’t incentivize foul play. Control of the presidency is higher stakes than control of Congress, but I can’t think of any instances where a legislator was assassinated in order to change the balance of power. Also, as Speaker of the House, Democrat Nancy Pelosi is just “two heartbeats” away from the presidency, yet I’ve never heard a conspiracy theory threatening the lives of Republicans President Trump and VP Mike Pence to aid Pelosi’s rise.
The minority party in Congress is more visible because they share the same space as the majority party. The president, barring a Democrat-Republican Frankenstein creature, is either one party or the other. The minority party has zero visibility in the executive branch, unlike in the legislative branch.
The VP is an existing vehicle through which this visibility problem can be resolved. Besides often being the hand-picked successor of the president or an olive branch to key electoral demographics, they currently have only ceremonial and advisory duties. They rarely exercise their duties as president of the Senate, and their power to break a tie in the Senate has been used just over once per year on average.
There’s no good reason for the VP to exist if they are simply an appendage of the president. They can advise the president, but so can the cabinet. They can greet foreign leaders or diplomats, but so can the secretary of state. They can represent the president in public, but so can less official political allies.
The VP should be the person who wins the second-most electoral votes. They would assuredly clash with the president, but so do Speaker Nancy Pelosi and Minority Leader Kevin McCarthy in the House and Majority Leader Mitch McConnell and Minority Leader Chuck Schumer in the Senate. Because they would have no statutory power, they would be taken less seriously than the president, just as McCarthy and Schumer’s comments merit much less attention than Pelosi and McConnell’s.
The VP would be allowed to go anywhere the president goes, just like a Democratic senator can go anywhere and listen to anything a Republican senator can. Being a political opponent of the president, some might worry that the VP would expose sensitive national security information or otherwise undermine the president. The VP would be disincentivized from doing so because of the same political consequences that his presence threatens the president with, namely the embarrassment associated with exposed national security slip-ups.
The benefits of an adversarial VP would be in their ability to listen in on presidential briefings. The VP would be an ear inside the White House, akin to minority members of Congress and dissenting justices of the Supreme Court. To my knowledge, there are no attempts to exclude minority parties or justices from intelligence briefings or deliberation. In these cases at least, a loss of privacy for the governing party in exchange for gain in representation for the opposition party is apparently an acceptable trade-off.
Many more people would have a representative in the sensitive discussions the president is exposed to, which would go a long way towards ending executive privilege. The adversarial VP would ensure that the favored leader of perhaps forty-nine percent of Americans is, when it comes to policy-making, mute, but not blind or deaf. The minority party would continue to be silenced, but it would have a representative to monitor the actions of the president.
Because there is currently no way to verify the president’s national security justification of executive privilege, an official whistleblower is necessary. Similar to the separation of powers doctrine that sets government institutions against each other, the ideological opposition of the leaders of the executive branch would provide a check on the president’s war powers by imposing a political cost – exposure of their previously secretive actions – on the abuse of them.
An amendment to restore the runner-up VP would necessarily take effect after an upcoming election as to not decrease the power of the incumbent president’s party, and the Electoral College would be kept in order to maintain Republican support. The process of replacing a dead or incapacitated VP would need to be addressed.
I’m probably missing a counter-argument that could explode my proposal as suddenly as a secret president-approved airstrike, but, like the current executive branch, I don’t have the input of the vast majority of people. Not unlike the plight of the minority party in Congress and the Supreme Court, the newfound power of the VP would do much to bridge the disproportionate gap between the relatively close support for each party and their respective power in the executive branch.