Power Grab

by Jason Chaffetz

  To the contrary, I think adherence to the principles in the Constitution remains the only formula that will hold us together. We need to recommit to those principles, not abandon them.

  The future is and always has been a choice between freedom and force. Either we can recommit to the principles of freedom that made us great or we can double down on the move toward a socialist system that can only succeed through force. Those are the choices. There is no “Democratic socialism” that magically combines freedom and force. Socialism relies on greater and greater degrees of force to sustain itself. Ultimately, trading our proven structural foundations for ideologies with a long record of failure is a bad deal for America.

  We already have the structural institutions to ensure diverse voices are represented, but we need to protect them. We have a framework of checks and balances across the federal government to withstand abuses of power, but that framework needs reinforcement. We have the ability to utilize a robust system of federalism—shared power between federal, state, and local governments—to sustain diverse communities. We must renew our trust in that system. Our Bill of Rights provides durable protection of individual liberties without which our system becomes incompatible with freedom. These principles came to be in our Constitution because the framers were looking to solve the very problems we now face. They are not new. But we as a nation have allowed our politics to damage our institutions. We don’t need new institutions. We need to recommit to the ones that already form the foundation of the most successful government ever known.

  Returning to the Constitution

  Arguably, both sides in the 2016 election operated from a sincere belief that the future of the country was at stake and that the opposing candidate represented an existential threat to all we hold dear. However, this is hardly the first time a presidential election has been waged between two sides who firmly believe a victory by the other would ruin the nation. Polarized times like these sparked the ideas for government under which we now operate.

  We can look all the way back to the election of 1800, between Democratic-Republican candidate Thomas Jefferson and Federalist candidate John Adams, to see similar polarization. The 1800 election was the first peaceful transition of power in American history and would dictate the course of the young nation’s future. For them, it truly was the most important election of their lifetimes. Emotions ran high and campaigning got ugly.

  The issues really weren’t that different from today’s, notwithstanding the different partisan divisions. The Federalists sought a strong central authority. The Democratic-Republicans wanted instead to disperse more power among the states. We’re still fighting that battle today. Federalist incumbent Adams was attacked over his deficit spending. He also had to defend his position on the Alien and Sedition Acts. These four laws restricted immigration, naturalization, and speech critical of the federal government, as well as empowering the president to deport what we now call criminal aliens. Jefferson, on the other hand, was attacked for his close alliance (collusion, if you will) with an unstable France.

  Even more so than our 2016 race, the presidential election of 1800 was characterized by mudslinging and personal attacks. The Federalists called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” But that was only in response to the Democratic-Republicans calling Adams a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.” One newspaper predicted a Jefferson victory would mean that “[m]urder, robbery, rape, adultery, and incest will be openly taught and practiced, the air will be rent with the cries of the distressed, the soil will be soaked with blood, and the nation black with crimes.”

  We can all imagine how disturbing Jefferson’s subsequent victory must have been to anyone subscribing to such views. Our hyperbole may be slightly more sophisticated today, but our modern media was no less inclined to tar President Trump as someone too extreme to be normalized.

  In the intervening years since 1800, we’ve had a lot of dramatic elections. Sometimes voters chose the wrong man, although we might disagree about which times those were. Sometimes our presidents overreached. Other times our judges or our lawmakers did so. More often than not, the constitutional checks and balances put in place by our founders have done the job they were designed to do. They continue to do so today. Many of those crazy predictions we heard about a Donald Trump presidency were far off the mark. Nevertheless, even when this president or this Congress or the courts have tried to overstep, checks and balances have done their job.

  A positive path forward lies in the very constitutional mandates bequeathed to us generations ago. The answers that worked for the founding generation continue to work in our generation. They are founded on truths that have not changed. Human nature has not changed. The economic impact of freedom has not changed. Indeed, the formula for prosperity has not changed. We must protect the balance of power between large and small states, maintain a robust system of checks and balances, rely on federalism to address our most divisive policy differences, and preserve the freedoms granted through the Bill of Rights. This is our best hope in the face of Democrats’ assault on election security, polarizing focus on politics over policy, and attempt to dismantle the guardrails protecting our republic.

  More Freedom, Not Less

  The temptation to restrict freedom as a means to solve problems always has been and always will be hard to resist. But freedom has been the secret of America’s success for more than two hundred years.

  The easy option for solving problems with the nonprofit sector, for example, is to pass legislation forcing every nonprofit to disclose donors. That’s the approach taken in H.R. 1, but in my view it isn’t compatible with freedom. Given the rampant targeting of political donors for expressing opinions some find unacceptable, expansion of disclosure laws will only chill free speech. We would also risk chilling contributions to charities that have not been politicized. A vibrant, healthy nonprofit sector is important in a free society and must not be jeopardized.

  We could require government funding of political campaigns, as Democrats have proposed, to combat the corrosive influence of fund-raising. But policies that compel Americans to fund campaigns they do not support, and restrict them from funding campaigns they do support, are also not compatible with freedom.

  Instead of taking action that curtails donations, we need more eyeballs scrutinizing what’s really going on. Nonprofits receiving tax-exempt status should be required to make more information available to the public—particularly information regarding their political activities. Charities must be held accountable for using their resources to pursue the missions for which their nonprofit status was granted. This might involve greater scrutiny from the IRS or enable the rise of independent watchdogs to help hold entities accountable. Or some combination of both. Instead of focusing attention and resources on small charities with “tea party” in their names, for example, the IRS needs to be doing more to scrutinize the largest charities. If taxpayers are going to indirectly subsidize charities with tax-exempt status, they need some assurance that the charities are actually doing the charitable work they promised to do.

  Admittedly, this is a problem that needs much more analysis. The pieces I have learned about are the tip of the proverbial iceberg when it comes to America’s nonprofit sector. This is a problem that needs far more attention.

  Preserving Our Electoral System

  Our path forward must also include defensive efforts to protect what is already working in America’s electoral system. Local control of elections and mechanisms that give voice to minority communities are critical. And by minority, I do not just mean protected classes. Diversity is more than just variations in skin color, gender, or sexual orientation. The founders understood that the geographic variation of individual states created very different political priorities and that those differences threatened to undermine the coh
esion that held the United States of America together. The Constitution was written specifically to ensure that a diversity of voices could be heard, and not just urban city dwellers concentrated in heavily populated areas, but farmers and ranchers, miners, oil workers, and truckers living in America’s heartland, fishermen on her shores, loggers in her forests, police, nurses, and teachers in her suburban neighborhoods, and first-generation immigrants along her borders. The two most prominent foundational structures supporting those voices have come under fire from those who perceive short-term political gains from the removal of long-standing foundational structures.

  The Electoral College and the representation in the Senate by state were important compromises that ensured smaller communities would not be subjugated to the priorities and demands of more populated urban areas. Since those populated urban areas today tend to be dominated by one party and the rural areas by another, the topic of small-state representation has become part of the partisan divide. In the current cycle, Democrats believe they can win national elections more easily without the Electoral College. Instead of winning the battle of ideas by appealing to a more diverse audience, some in the Democratic Party prefer to simply jettison the institutions they see standing in the way of their access to power. Make no mistake. The effort to “reform” the Electoral College and the Senate is nothing more than a partisan power grab.

  Over the past two hundred years, proposals to abolish the Electoral College have been put forth more than 700 times. After Hillary Clinton won the popular vote in the 2016 presidential election and still lost the presidency, calls to abolish the institution have been deafening. Democratic senator Barbara Boxer of California introduced legislation shortly after the 2016 election to do away with the two-century-old tradition, perhaps recognizing that doing so would enable her heavily populated state to more or less call the shots for everyone else in America.

  Democratic presidential hopeful Senator Elizabeth Warren has been outspoken on the issue, arguing that “every vote matters. And the way we make that happen is that we can have national voting and that means getting rid of the electoral college.” Fellow candidates Beto O’Rourke, Senator Kamala Harris, and Mayor Pete Buttigieg soon followed. Predictably, the Democrats’ nonprofit and media allies soon amplified the calls.

  But not every vote matters when you get rid of the Electoral College. Only urban centers matter, because just two or three heavily populated states can run up the vote tally and overwhelm every other state.

  The process for electing a president was laid out by the framers and subsequently defended by Alexander Hamilton in Federalist 68. Then, as now, a majority of the population resided in a few urban centers. Recognizing the universal truth that the priorities of urban centers differ from those of other sectors of the country, the framers devised the Electoral College and the representation in the Senate by state as two ingenious ways to ensure that rural populations did not become perpetually subjugated to the priorities of the urban ones. The election of 1800 between Adams and Jefferson exposed some minor flaws in the process after a tie vote in the Electoral College resulted in the House choosing the president. The House quickly figured out how to game the system, necessitating thirty-six separate votes to determine a president and vice president in that election. That debacle resulted in modifications to the process that subsequently became the Twelfth Amendment to the Constitution.

  Warren’s argument that every vote should count in electing president is not wrong. But her conclusion that some kind of national popular vote achieves that end is simply incorrect. The 2016 election perfectly illustrates the problem. When Hillary Clinton won the national vote by a sizable 2.86 million votes, that sounded like a national consensus. But she won a single state—California—by a margin of 4.27 million votes. Remove that one state and you have a convincing popular vote win in the other direction.

  In a memorable analysis for National Review, Dan McLaughlin pointed out that Clinton’s support was geographically narrow. She won the popular vote in just 13 of the 50 states. Trump, on the other hand, won a majority in 23 states, including 7 of the 10 largest states. Clinton’s support was heavily concentrated in a few geographically similar locations—primarily major coastal cities. This is exactly the result the framers were concerned about.

  A popular meme on social media following the election was two maps depicting Trump Land and the Clinton Archipelago. The Trump map showed the United States as a landmass with the Clinton-supporting areas underwater. That map largely resembled the current United States, minus some strips of coastline, with enlarged Great Lakes, and what appeared to be smaller lakes in New Mexico, Colorado, Illinois, and Mississippi. By contrast, the Clinton Archipelago map depicted three islands along the California, Texas, and New York coasts, connected by a string of smaller islands along the coastlines with isolated outposts in inland urban centers. Because those small islands contain large population numbers, the framers knew their interests would always overwhelm the interests of less populated areas. That’s why we have an Electoral College and why each state, large or small, has two senators—another institution the Democratic base is itching to jettison.

  As a representative from a less populous state, I have no difficulty imagining what a popularly elected president and Senate would do to minority communities. I belonged to a delegation of three (later four, following redistricting in 2012) in the House. When we would sit alphabetically by delegation, our three Utah members were next to the Texas delegation of 32 (later 36). California’s delegation was even bigger, with 53. This was a huge advantage for these states. But we made up for it by having access to two senators, just like every other state.

  Meanwhile, back in Utah, I represented a district composed of seven counties. Two of those were urban counties and five were rural counties containing large swaths of federally owned land. It quickly became apparent that those five counties with the lowest population were the places requiring the most intervention to address invasive federal policies. Several of those counties had a larger area than some states.

  San Juan County, with an area nearly as large as New Jersey, was the home of iconic rock formations, a famous national park, precious natural resources, and dangerously isolated landscapes. Yet its population of just over fifteen thousand, including many in the Navajo Nation, gave it little clout in national politics. The county was 92 percent owned by the federal government. It drew thousands of tourists every year, requiring infrastructure, public safety services, search and rescue, and other costs. Yet only 8 percent of the county’s landmass generated property tax to pay for those services. The county was fully dependent on a federal landlord that paid no property taxes and had little incentive to listen to the voices of a mere fifteen thousand people.

  Each year, Congress would have to vote on an appropriation to provide PILT money (payment in lieu of taxes) to such communities. In my state, that averaged $1.20 for each acre of federal land—a small fraction of what a property tax would have generated. Yet getting support in the House for that minuscule appropriation was like pulling teeth. Many western communities shared the same problem, but none of them were heavily populated. There just weren’t enough representatives with a stake in that problem. None of the states east of the Mississippi River faced that problem, as none of them bear the burden of hosting large tracts of public land. But in my state, almost 70 percent of our total area is federally owned and managed. Decisions about that land were heavily influenced by deep-pocketed environmental nonprofit groups who could appeal to hundreds of representatives from the Clinton Archipelago regions of the country.

  Meanwhile, the federal government was far more deeply involved in people’s day-to-day lives in those rural counties than in the urban centers. In such counties, the federal government got to decide where and when livestock could graze, how water could be accessed, and whether Native Americans could use ATVs to hunt and gather or perform religious ceremonies on traditional lands. It provided health care through
Indian Health Services and duplicative law enforcement services through an alphabet soup of federal agencies. It dictated whether restroom facilities could be built to accommodate the hordes of tourists being drawn to the area by environmental groups intent on “saving” previously unknown monuments. The government decided how rivers could be accessed, whether local outfitters could drive their boats to the river or would be required to carry them overhead, and where locals could ride their bikes. With so little private land, communities had difficulty even getting internet access as broadband infrastructure could not reach isolated communities without crossing restricted federal land. In a time of drought, they were denied access to needed water because federal officials were worried about the habitat of a bird not seen in that county for twenty-five years. Every time these people turned around, there was a federal agency telling them what they could not do.

  While these areas have a huge federal footprint and a heavy presence of federal bureaucrats in their counties, what they don’t have is influence. Their livelihoods literally depend on federal policies that impact only states with small populations. Yet we have people clamoring to create an electoral system that would completely shut these people out. Eliminating the Electoral College doesn’t elevate the little guy; it silences him. With the Electoral College, some public land states actually are swing states. Nevada, which is 85 percent federal land, gets a lot of attention from presidential candidates because of its status as a swing state. Even that small degree of influence would come to a screeching halt if not for the Electoral College.

  Fortunately, abolishing the Electoral College is not a matter of simply passing legislation. It requires a constitutional amendment. That process can only be successful if two-thirds of the states ratify it. Given the long odds of getting broad support to narrow the electorate, changing the Constitution is unlikely.