The Electoral College and Federalism
posted by Gerard Magliocca
I was recently asked to participate in a workshop on federalism, and my first reaction was: ”Is there anything new that I can say? Hasn’t that topic been beaten to death?” Necessity worked its magic though, and I got to thinking about how the Constitution protects states.
At the Founding, the most important structural protection for federalism was a Senate comprised of appointees by state legislatures. Not far behind were the doctrine of enumerated powers and the Tenth Amendment. All of those safeguards were diminished by subsequent constitutional developments. In some instances the Senate does protect states or a given state, and there are a few cases that strike down an Act of Congress for violating federalism, but these occasions are few and far between.
So what does protect states nowadays? The answer is the Electoral College and the presidential nominating process. Take Ohio. It gets showered with attention by presidents and officials of both parties. Why? Because it is a swing state. That is now worth a lot more than having a powerful member of Congress. If the Electoral College were abolished and the winner determined by the national popular vote, no single state would get disproportionate attention. The same would be true for a given state if it went from a winner-take-all system to a proportional or congressional district method of allocating electors.
The question of which states are swing states is a product of demographics that are beyond their control. Iowa and New Hampshire’s role in the presidential nominating process, however, is the product of a choice. The Iowa caucus does more to protect Iowa as a state than anything else. (Ethanol subsidies are a good example.) Ditto for any state that get itself early in the calendar (such as Florida).
There are many other interesting federalism issues raised by the presidential selection system. More on that next week.