Electoral College Defender Ready for 2004 Nail-Biter

Posted November 1, 2004 at 4:35pm

The octogenarian American Enterprise Institute scholar Walter Berns still bristles when he remembers the confusion created by the third-party candidacy of John Anderson in 1980.

Anderson’s bid “triggered a lot of press comment as to what would happen to the Electoral College,” he recalled. “Every single press comment that came to my attention was mistaken in some respect.”

So Berns set out to correct the record, editing a guide to the Electoral College — “After the People Vote” — that was first published in 1983. (A third edition of the book, which Berns contributed to, came out this fall.)

Since then, Berns, who one expert recently dubbed “the dean of the Electoral College,” has emerged as one of the nation’s most eloquent defenders of a system that has been viewed with increased skepticism ever since George W. Bush ascended to the presidency after winning the most electoral votes in 2000 but losing the popular count by more than 500,000 votes.

Despite the strong possibility of a repeat “misfire” of the Electoral College, Berns remains an unapologetic believer that the nation’s well-being depends on its continued reliance on the 538-member slate of electors who constitutionally decide the nation’s commander in chief.

“I’m still very much in favor of it because there is no good alternative,” said Berns, during a recent interview. In 2000, “everything went well as far as the Electoral College, even in Florida. … Without the Electoral College we’re likely to have Floridas all over the place, where every vote counts everywhere.”

‘Holding the Banner’

University of Louisville political science professor Gary Gregg has never met Berns, but he still credits him with “holding the banner for the rest of us.”

“For years, he was about the only … serious constitutional thinker seriously discussing the Electoral College from the point of view of supporting it,” said Gregg, editor of “Securing Democracy: Why We Have an Electoral College,” to which Berns contributed. Gregg believes Berns’ work is in part responsible for the absence of any “serious project to abolish” the Electoral College today.

That hasn’t stopped the Electoral College’s relevance from being continually questioned, however — a development which, in Berns’ view, indicates “a kind of loss of prestige and attachment to the Constitution.”

In 1888, the last time prior to 2000 that the clear popular vote victor lost the presidential election, the loser, Grover Cleveland, chalked up his defeat to the fact that “the other party got more votes.”

“This is the way the Constitution provides it. What’s wrong with that?” asked Berns, who called the Cleveland remark “a marvelous statement.”

Among the more troubling effects of switching to a system of direct popular election Berns counts the likely “abolition of the two-party system.”

“Direct popular vote … would have the effect of leading to a proliferation of candidacies, and the consequence of this is … nobody would win a majority of the vote on the first ballot,” said Berns. “Then you would have a runoff, and that opens up the possibility of all sorts of wheeling and dealing, which various third-party candidates understood very well, indeed giving them an opportunity in a sense to sell their support.

“I prefer that we don’t have a president chosen that way,” he said.

The Electoral College’s abolishment, Berns has argued, could also have a potentially detrimental impact on a variety of minority subgroups in the broader population.

“The issue is, will you have not merely majority rule but majority tyranny?” said Hudson Institute Senior Fellow Hillel Fradkin, Berns’ son-in-law. “He believes [the Electoral College] is a buffer against it.”

“It’s important … not to give the choice of the president to, today, New York, Florida, Texas, and California,” the four most populous states, Berns said.

“Buffalo and cattle don’t vote,” Berns dryly observed, referring to the plight of sparsely inhabited states such as Montana and Wyoming.

Personal Journey

Berns, who has frequently testified before Congress on the Electoral College’s behalf, has spent his career exploring the constitutional underpinnings of everything from the First Amendment to capital punishment. He has decried modernity’s predilection to emphasize the right to individual expression over time-tested principles and governance structures. More recently, he’s turned his attention to examining the philosophical components of American patriotism, as he did in his May 2001 book, “Making Patriots.”

“Walter understands that democracy has some simple tenets, but nothing about democracy is simple,” said political commentator George Will.

Berns’ path was by no means predestined. The conservative political scientist started out life on a more bohemian track.

In 1946, after service in World War II, Berns headed to the artistic mecca of Taos, N.M., to try his luck at a literary career. In Taos, he befriended D.H. Lawrence’s widow, Frieda, who was then living on a ranch outside of town. He became acquainted with the poet Stephen Spender and mingled with Leonard Bernstein. (Berns vividly recalls an evening at Lawrence’s when Bernstein played and sang the score to Mozart’s “Don Giovanni.”) Berns penned a novel, among other literary efforts, but he later burned it. Then, a few years after arriving in the Land of Enchantment, he ran out of money and moved to California to teach.

Berns eventually headed back to school, studying at Reed College in Oregon and the London School of Economics, followed by further graduate work at the University of Chicago. He earned his Ph.D. in political science there in 1953.

“My life was made at Chicago,” said Berns. He met his wife, Irene, formed life-long intellectual bonds and studied under the political philosopher Leo Strauss. Strauss’ writings are today credited with profoundly influencing a network of neoconservative policymakers in the Bush administration.

“In 1952, [Strauss] asked me to take him to the local precinct because he had never registered to vote in Chicago, and he wanted to vote for Adlai Stevenson,” Berns said.

At the time, Berns was a Democrat, having previously been a member of the Socialist Party and a campaign volunteer for its presidential candidate, Norman Thomas, in 1948. But Berns switched his party membership in the 1970s — “because of McGovern.”

“Foreign policy … is the principal thing. I don’t care about taxes and all that stuff,” he said.

What he does care about is the Constitution, its origins and influences — specifically, the thinking of the men who shaped it.

If Berns’ arguments in favor of the Electoral College are more nuanced than some, the seriousness with which he takes the founding of the republic has a lot to do with it.

Berns’ study of political philosophy “broadened his view of the way to approach the Constitution and constitutional issues,” said his longtime friend and AEI colleague Bob Goldwin.

It’s no surprise, then, that when you ask Berns to explain why the Electoral College is still the best of the worst, he starts at the beginning — the 1787 Constitutional Convention. He systematically ticks off the reasons behind the Founders’ rejection of alternative means of electing the president.

“It’s not sufficient to make an argument about democracy — one man, one vote,” said Berns. “It’s also necessary to think about, as the Founders did, what system is more likely to produce a … president who’s qualified.”

That was a question rarely posed in the broader national debate over the Electoral College — until Berns brought it to the fore, said Gregg. (Berns himself credits the late political scientist and fellow Straussian Herbert Storing with first raising the idea.)

Yale Law School Professor Akhil Amar, a critic of the Electoral College, said: “For Walter, the [the idea of one person, one vote] is just one of many things.” He focuses more on “some of [the Founders’] concerns which may be a little different than modern sensibilities.”

To put it more bluntly, said William Galston, interim dean of the University of Maryland School of Public Policy and a former Clinton administration official: “He doesn’t think there have been great advances in political understanding since the time of the Philadelphia Convention.”

Influencing Minds

Over the course of a roughly 40-year teaching career, Berns has helped shape the minds of many of the nation’s top officials.

In the 1960s at Cornell, Berns became friendly with both Paul Wolfowitz, now the deputy Defense secretary, and Alan Keyes, the GOP nominee for Senate in Illinois. His former students include Deputy National Security Adviser Stephen Hadley and Abe Shulsky, who ran the Pentagon’s Iraq war-planning unit, the Office of Special Plans, as well as ex-National Security Adviser Sandy Berger and former Attorney General Janet Reno.

“I never knew Janet Reno was a student until she went back to Cornell and gave a lecture and thanked Cornell, and especially me, she said, for inciting her to go into law. You’d think a six-foot, one-inch woman would come to my attention,” he joked, pulling out an old class record book to prove Reno’s former status.

Berns — along with other prominent intellectuals such as the late Allan Bloom and the historian Donald Kagan — left Cornell in 1969 due to his “utter disgust with the university, with the administration and the majority of the faculty” for capitulating to the demands of armed black students who had taken over the student center that year. During the incident, Berns’ life was threatened and he and his family briefly checked into a local motel under an assumed name.

After a decade at the University of Toronto in the 1970s — where Berns led a migration of Straussians — he settled at Georgetown University (where he is now professor emeritus) and AEI.

At 85, colleagues say Berns, who received a lifetime achievement award from the American Political Science Association in 2002, shows no sign of slowing down. He rides the Red Line to work five (and sometimes six) days a week, putting in a full day in his modest office, which is decorated with prints of Abraham Lincoln (“The greatest man that ever lived”), James Madison and a Giovanni Piranesi rendering of the Coliseum. Last month, his famously hush-hush poker group, whose members include Chief Justice William Rehnquist and Justice Antonin Scalia, marked its 200th game.

The bespectacled Berns, who speaks in the gruff timbre of a Hollywood leading actor of half a century ago, projects an understated refinement. He devours Trollope and Wodehouse and has been known for his skills on the dance floor. Underneath the legendarily brusque exterior — “His demeanor is, shall we say, sober,” Will said — lies what friends and associates call a gentle soul.

“I don’t have a colleague I like better,” said AEI scholar and Roll Call columnist Norman Ornstein.

Despite the potential for today’s election to result in a draw, Berns said he remains untroubled by the prospect of a 269-269 split Electoral College vote, which would throw the election of the president to the House of Representatives, where each state’s delegation would then have one vote. “The federalism aspect,” he said, more than justifies what critics countercharge would dramatically skew the will of the people.

As to whether there are any reforms he would advocate for the Electoral College system, Berns said he “would like to hear arguments” about the implications of abolishing the electors due to concerns over “faithless electors,” but stopped short of advocating any outright modification of the current system.

Of more immediate concern to Berns is the scenario posed by a recent Wall Street Journal editorial which examined the “cloud” that could be cast over the election’s legitimacy by a combination of provisional balloting and politically motivated litigation.

“That’s enough to chill anybody,” he said. “I’m very apprehensive about all these thousands of lawyers who are poised to leap and are paid to leap and are inspired to leap and will leap almost surely.”