Back at The New Yorker with Hendrik Hertzberg AND a “National Popular Vote”

GUEST: Hendrik Hertzberg
TITLE: Back at The New Yorker with Hendrik Hertzberg AND a “National Popular Vote”
AIR DATE: 02/25/2012
VTR: 10/12/2011

I’m Richard Heffner, your host on The Open Mind.

And this is my second program recorded this pre-Presidential campaign year with Hendrik Hertzberg, who writes “Comment” for The New Yorker and has delighted us with its “Talk of the Town” for so many years now.

Senior Editor Hertzberg was early on a staff writer at The New Yorker, became Jimmy Carter’s Chief Speech Writer – memorably taking the rap for the President’s much maligned “malaise” speech. He was at the Liberal/Conservative or Conservative/Liberal New Republic for more than a decade, serving two terms as its Editor, then returned to The New Yorker, where – unless, perhaps, we’re in the White House – we so much enjoy reading him today.

A political (but presumably not partisan) theme my guest comes back to quite frequently these days is the crusade for a “National Popular Vote”. And I want to begin today by asking him just WHY … what is the magic of this reform that you look for?

HERTZBERG: Well, ahh, should I briefly say what the reform is?

HEFFNER: I think you’d better because I’ll be damned if that big book that you gave me …

HERTZBERG: (Laughter)

HEFFNER: … enabled me to encompass it all.

HERTZBERG: (Laugh) Well, the National Popular Vote idea is that if you can get enough states to agree … enough states that have 270 electoral votes, which is what you need to, to elect a President … if you can get them all to agree that once they’ve all said “we’re going to do this” that they will, that they will cast all of their electoral votes for whoever wins not the vote … necessarily the vote in their state, but the popular vote in the entire country.

Then, all of a sudden, you would be electing the President by the way we elect Governors, Senators and everybody else … count the votes … person with the most votes wins.

And everybody’s vote counts the same. And this has now been adopted in … I think … 10 or 11 states … it’s passed 31 legislative chambers … and it’s a way to get to a place that the great majority of Americans want to get to … without disturbing our Constitution or, or any of our institutions.

It’s just such a wonderful idea … it’s caught on despite the fact that nobody really knows who’s going to benefit. And so there isn’t a kind of great big lobby behind it.

It’s like … a Stanford professor invented it and people like me think it’s a great idea and when legislators sit down and think about it … Republicans and Democrats … mostly Democrats, but a lot of Republicans, too, they say “Well, that makes sense.

HEFFNER: Isn’t it a rather sneaky way and I’m being pejorative …

HERTZBERG: Mmm …

HEFFNER: … of amending the Constitution, of changing the concept that the framers had … without doing so?

HERTZBERG: No, it isn’t. Because what the framers had in mind bears no resemblance to what we have now. In fact it doesn’t bear any resemblance to what we had within 20 or 30 years of the adoption of the Constitution.

What we’ve got now is “winner take all” in every state. In every state, it doesn’t matter whether you win the, the … every state except two, two tiny little states … Maine and, and Nebraska … in, in every other state you could win … a candidate can get one more vote than the, the other candidate and gets 100% of the electoral votes. That’s, that’s the way it’s done.

That’s not in the Constitution. That’s not how it was done in the, in the first few decades of, of the Republic. It … the Constitution gives the power to the state legislatures to decide how their electors will be selected. Doesn’t even mention voting. There’s not even any right to vote for President.

The, the State legislatures make that decision and the State legislature can say, “Well, we’re going to give all our electors to the one that wins in our state”. They can say, “We’ll give all our electors to the one that wins in the whole country”… or they can say, “We’ll flip a coin and give all our electors to heads or tails.”

HEFFNER: So you’re saying that the original Constitutional provision was for the states to make the decision as to how they would vote for President of the United States?

HERTZBERG: Yes. And why did they make that decision? Why was that decision made? Why was it left to the States?

Well, we’re told, often by, by, by Conservatives, by, by Constitutional originalists who are not very well informed … that it all had to do with preventing mob rule and, and preserving the rights of the States. Actually the real reason for the adoption … the decisive reason for the adoption of this scheme was to increase the power of the slave states.

Kind of a dirty compromise between Rhode Island … not a slave state, but a very small state that was afraid of being swallowed up and the big slave states like South Carolina. (Clears throat) Because what the Electoral College does is to, is to … is to allocate the electoral votes by population, not by voter.

Not by the voting population, not by voters, so that that … the infamous … the infamous …

HEFFNER: Three thirds.

HERTZBERG: … three fifths rule gave those slave states extra electors. And that’s why.

And, and I’m not just making this up. The one record we have of, of the deliberations of the Constitutional Convention … Madison’s notes on this … makes it clear that that was the decisive factor … that was the sticking point.

Yeah, they considered popular election. They considered quite a few different schemes, but the decisive thing was that … that … was this extra power for, for the slave states.

HEFFNER: And your reason for doing it now? Having us do it now?

HERTZBERG: Well, I’ve been, I’ve been … I’ve been on this case for decades. But …and in fact right before the 2000 election, the last piece I wrote right before the 2000 election was … “What happens if … what happens if next week … what happens if next week a different candidate wins the popular vote than the electoral vote, then what?

And at the time, by the way everybody thought it would be the other way around. There was a lot of speculation that, that, that Bush would win the popular vote, Gore would win the electoral vote.

The biggest reason I’m for this is not because of the wrong winner problem. That’s a big problem, it’s a big problem …

HEFFNER: It has surfaced a number of times in our history.

HERTZBERG: It surfaced, it’s actually happened four times. It, it has … it’s come close to happening many more times, particularly in the last … particularly in the last couple of decades.

In quite a few elections, a, a small shift of votes in one state or two states could have given the, the Presidency to, to somebody who’d lost badly in the popular vote.

But the big reason I’m for this … is in fact … the big reason I’m for this is that right now you’ve got a maximum of 15 battleground states. That’s the only place the Presidential … the general election Presidential campaign happens. That’s the only place the candidates go. That’s the only place they advertise, it’s the only place they poll. That’s, that’s bad enough.

HEFFNER: Of course, the other not so …

HERTZBERG: … but what’s really bad …

HEFFNER: … certain things.

HERTZBERG: … The other ones are a sure thing, they’re a lock. You know George Bush in the, in the, in the 2000 election … Texas … that’s where he’s from, that’s his big state, huge Republican state … he spent $500 there in (laugh) …

HEFFNER: You’re kidding.

HERTZBERG: No, that’s, that’s the number. And did no, no polling … no polling outside of either … either candidate … none of the candidates … once they’re nominated do any polling outside of these … this, this handful of states.

The big problem is that for voters, for people … they’re left out in all these other … in all of those spectator states. So there’s no point in engaging in any kind of grass roots politics.

If you live in a, if you live in a state that’s a lock for one candidate or the other and it doesn’t matter whether it’s your candidate or the other candidate … there’s no point in going around your neighborhood and trying to persuade your neighbors to vote for your candidate or getting out and passing out leaflets or manning a headquarters. What’s the point of that?

You’ve got to go to a … if you can afford to and spare the time … and you actually want to participate in a meaningful way in, in a Presidential campaign … you’ve got to a battle ground state. You’ve got to get on a bus and go to Pennsylvania. That’s ridiculous.

And, and, and when you have an election decided by this handful of states it means also that the power of money is hugely magnified.

If you collect the money all over the place … New York and LA, especially and then you funnel it into poor little Ohio … so Ohio is … Ohio and the battleground states are overwhelmed with the money.

If, if every vote counted the same all over the country and, and … this took me a while to get … but once, once … as I say once enough states have signed on to this … then it doesn’t matter whether you live in one of those states or not … your vote’s going to count the same as everybody … as any other vote anywhere in the country. That money that’s now raised and they raise as much as they can … would have to be spread out. It wouldn’t have the kind of impact on … that it has now. It would still have a lot, but it wouldn’t, it wouldn’t be as determinative as it is now.

HEFFNER: This is what I found it hard to understand. Why is this such a major point with you? That the money would be spread out?

HERTZBERG: Well, it’s a, it’s a … I’d be for it even if, if that weren’t the case. But the, the relative power under the current arrangement of money versus grass roots, versus people politics … money politics versus people politics is very disturbing. It’s disturbing in, in many parts of our government. It’s certainly disturbing in the lobbying that goes on in Congress.

But in a Presidential election it’s, it’s disturbing, too. I think it’s pretty intuitively obvious why one would want to increase the relative importance of citizen politics, participatory grass roots politics … where your … the ticket of admission is just the fact that you’re a citizen and a voter … over, over money politics.

HEFFNER: It’s funny … what I see is an increased desire for bigger and bigger pots of money because you’re spreading the areas …

HERTZBERG: MmmHmm.

HEFFNER: … where money can be used and must be used.

HERTZBERG: So … yes …

HEFFNER: That’s a plus? Minus in my book.

HERTZBERG: Well, here’s why it’s a plus in my book. For one thing, right now … Presidential campaigns raise as much money as is … as they can.

They don’t reach a certain point and say “Well, we’ve got enough now, let’s knock off this fund raising.

They … maybe they’ll try harder … if they possibly can, if that’s imaginable to raise more money and maybe they will. Let’s say they raise half again as much money.

Let’s say instead of costing … what is it now … does it cost a billion dollars …

HEFFNER: That’s …

HERTZBERG: … the whole election costs, maybe, two billion for both sides. Let’s say instead of two billion … they raise three billion. They’ll have to take that three billion and spread it over 50 states and the District of Columbia instead of 12 states or 8 states or 4 states. So, impact-wise, it will be … it will be less important … even though there’s more of it.

There is no such limit on citizen participation. I don’t think anybody would suggest that that there’s as much grass roots political mobilization as there possibly can be right now … there just isn’t. Only in those few states.

HEFFNER: Rick … do you see … if you look back and say … over the past twenty, thirty, forty years … we had the reform that you want, what would have happened differently?

HERTZBERG: Well, one way …

HEFFNER: In terms of results.

HERTZBERG: One way to look at it is to say … is to pretend that we had that system and just look at what the popular vote was and the electoral vote.

So a lot of people say, “Well, if we’d had the system I’m talking about Gore would have been President.”

But if we’d had the system I’m talking about, the campaign would have been conducted in a very different way, there would have been a whole different strategy on, on both sides. You really don’t know.

Same with the, with the, the … with the 2004 campaign where if 50,000, 60,000 votes in Ohio had, had switched to Kerry … Kerry would have been elected President without a dispute … not like Florida in 2000 … would have been elected President despite losing by three million votes.

The, the Humphrey Nixon campaign … where, where Nixon won by fewer popular votes than Gore, than Gore won in 2000 … the 1960 campaign … you could go back to the 1976 campaign … all of these cam … all of these elections could have, could have tilted … could have tilted very easily … but they would have all been fought differently … they would have been fought … they would have been fought all over the country … states … a few states would have not have been the decisive factors.

States would be important, but only in the sense that they’re important to voters.

You know if I, if all I cared about was the interest of New York, then I’d vote on that basis. But that’s not all I care. In fact it’s quite low on the list of what I care about. And I think for most Americans, virtually all Americans … the state …their state is not that relevant a category when they are looking to vote for President.

And compared to the way it was 1789 or throughout the nineteenth century … where you live … your geographic location at any given moment in your life is very low on the list of the things that are important to you.

Back then most people stayed in the same … didn’t get more than 50 miles from home in their whole lives, so geography was a very important category. Not now.

HEFFNER: What’s happening with your wished-for reform?

HERTZBERG: Well, it’s, it’s only … it’s only, I guess … what four years old since it was introduced.

It has been adopted by enough states to bring …to get it halfway the 270 votes that is needed.

HEFFNER: Excuse me, when you say “has been adopted”, what do you mean?

HERTZBERG: I mean that, that an identical bill has been passed by both houses of the State legislature and signed by the Governor into law.

HEFFNER: And the Bill provides …

HERTZBERG: The Bill provi … the Bill provides that, that we join an interstate compact under which, as soon as enough states have joined the same compact by passing the same Bill … to account for the 270 electoral votes that are needed to, to elect a President. When that happens this comes into effect and at the next election … our electors … we will choose the electors who … ah, the candidate who wins the most votes.

HEFFNER: And interstate compact such as this … are they worth … you know …

HERTZBERG: The paper they’re written on?

HEFFNER: Yeah. Yeah.

HERTZBERG: Yeah. There are hundreds and hundreds of them. A lot of them are a kind of technocratic things. The Port of Authority of New York is an example of an interstate compact.

There, there … there’s, there’s a long, there’s a long legislative and judicial history behind them. They’re kind of like treaties among the states. They can’t impinge on Federal power. But, apart from that, there’s a lot of things you can do with, with an interest compact.

HEFFNER: Do you think this one, so fundamental … is among the things you can do?

HERTZBERG: I think it is, yeah, and there’s … because … mainly because the, the case law about, about the provision of the Constitution that says the legislature … that, that the states will choose their electors according to how … that that legislature says they’ll be chosen.

HEFFNER: Right.

HERTZBERG: Even in, in Gore v Bush, the majority said, “Well they can do anything … they can choose him anyway they like.” You know if the … and in fact the Republican Florida legislature, when it was unclear which way it was going to turn out … was, was steeling itself to just give the electors to Bush no matter how the …

HEFFNER: Right.

HERTZBERG: … how it turned out. So, I’m sure there’d be a court test of this … but, but I don’t think it would succeed … and by the way, one of the things that people say is “Well, if some state doesn’t like it, you know, once, once the results are in … and you know, New York, New York has signed on and it turns out that, that the Republican wins and New York wanted the Democrat … New York will say, okay, forget about that, we’re casting our votes for our candidate …

HEFFNER: And?

HERTZBERG: … won New York.

HEFFNER: And what about?

HERTZBERG: Well, part of the compact is you can’t get out of it … you can’t get out of it from … I can’t remember the exact interval … but for a period of months so that, that … you can’t, you can’t pull a switcheroo after the election.

HEFFNER: How many times in your lifetime have you dealt with things that you can’t do … but are done?

That’s what I mean … my uneasiness about this notion of these interstate compacts.

HERTZBERG: MmmHmm.

HEFFNER: And how easy they would be to undo … under the pressure that you just described where a state’s real candidate doesn’t win, thanks to this cockamikee scheme.

HERTZBERG: MmmHmm (Laugh) Well, this is, this is a very … this is a very remote and unlikely danger compared to all the dangers of the status quo … exemplified … under, under which the state can just do whatever the hell it pleases.

The, the idea of, of … (laugh) the idea of electing a President, the way we elect everybody else and doing it in this particular way where we can … in a sense we could try it and see if we like it. We don’t … we wouldn’t have to amend the Constitution, which is really hard to un-amend once you’ve, once you’ve amended it.

We could, we could do this and the, the, the fear that, that some state would change its mind at the last moment, even though it’s legally obliged not to and that that …

HEFFNER: Sue us.

HERTZBERG: … would go to a court … and, and that’s exactly what would happen … and, and, and the Supreme Court given its previous case law would be likely to say, “No, you signed the compact, you keep the compact.”.

HEFFNER: Unless …

HERTZBERG: And you would …

HEFFNER: … there were five Supreme Justices of one persuasion and four of the other and the five would do what I think you and I think they did in 2001.

HERTZBERG: It would be a lot harder for them to do it. And what you’re … what the, the worry you’re expressing is one that has already come true under the status quo.

And is surpassingly unlikely to come true under this. Because they … the notion of a disputed election where, where it’s too close to call nationally, that has never actually happened. There’s never been one of those. We’ve had … the smaller the electorate, the more likely you are to have that problem. The problem we had in Florida about 536 votes out of 90 million.

The closest we’ve come in the popular vote is around … is a little over 100,000 in 1960. That’s still a clear … that’s still a clear win. The, the idea that somehow a Florida type or a 2000-type situation is more likely under, under this than it is under … than it is under the status quo … it’s ridiculous.

HEFFNER: I …

HERTZBERG: The smaller … .you know you get a lot more disputed elections for a City Council seat than for a Governor-ship.

HEFFNER: But can you imagine, or have you imaged and rejected the idea that there would be many, many, many troubles arising out of a sufficient number of states signing this interstate compact …

HERTZBERG: MmmHmm.

HEFFNER: … and moving ahead as you, as you want. You don’t see this as even more fraught?

HERTZBERG: No. And, and, Dick, you’re going to have to tell me how it’s fraught because I, I, I don’t … I don’t see the problem.

HEFFNER: Because …

HERTZBERG: I don’t see the problem.

HEFFNER: … I, I guess the fraught comes in (laugh) with the manipulation, with the changing … you make it perfectly clear that the Founders left it up to the states to do this as they pleased … to determine how you pick your Presidential electors.

But, ahh, this is a change of a system that has been in effect for such a long time … that has lived through all these precarious victories where we could see that a victory didn’t belong to this person, it really belonged to that. I just think that the troubles would be just enormous.

HERTZBERG: But you haven’t told me what they are.

HEFFNER: What they are would be the challenges … you described it well enough … once they realized that even though it had signed on, it didn’t get what it wanted …

HERTZBERG: You’d have to, you’d have to have a situation where, where a state that has signed on … where, where an election was, was so close and a, a state legislature, a whole state government … both Houses of the state legislature and a Governor were so determined to overturn a popular will of the American people that they would, that they would … that they would try to repeal their agreement to the national popular vote plan. And it would have to be a situation in which that state was the decisive one. In other words where it wasn’t just … where the compact had been signed by enough states … more than … with more than 270 so that their withdrawal wouldn’t make any difference anyway.

And then you’d have to believe that having dared to do that, bringing on the outrage of the entire American population and the world, probably, that the courts would back them up.

Now that’s the worst, worst, worst case scenario. We’ve already had it.

HEFFNER: You’re right, we have had it.

HERTZBERG: And we’ve had it … and, and …

HEFFNER: And if continued along the same paths … we’ve had it, we swallowed it … and moved along.

HERTZBERG: We swallowed it because the, the alternative to swallowing it was too awful to contemplate. And that alternative was that we had undergone a kind of judicial coup de tat …

HEFFNER: MmmHmm

HERTZBERG: And that’s something that nobody wanted to face. It would have been a blessing in a way if, if, if … if, if …

HEFFNER: Gore had held out … fought?

HERTZBERG: No, no, if in the next election … if in the next election Kerry had been elected despite losing the popular vote. Then it would be clear that this is a problem for the whole country. And it … nobody knows who’s going to do better under this, under this plan. But what we do know is that, that the system of electing … the idea of electing who gets the most votes has worked very nicely in every other election in this country. And no why it should work very nicely for President.

HEFFNER: Rick, what we really do know is I’ve just gotten the signal that our time is up …

HERTZBERG: (Laugh)

HEFFNER: … so we’re going to have to fight this out …

HERTZBERG: (Laugh)

HEFFNER: … at another point. Thank you so much for joining me today on The Open Mind.

HERTZBERG: Ands thanks for hearing me out, Dick.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as another old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.