|Remember John Dean, Nixon's lawyer during the Watergate scandal (who then
was to become Nixon's scapegoat)? Here are his comments about Tom DeLay
and the latest scandal.
Tom DeLay's Doomsday Strategy Undone
John Dean on MSNBC, November 25, 2000
Rep. Tom DeLay of Texas has thrown down a gauntlet in his opposition to
a Gore presidency. DeLay, known to his colleagues as "The Hammer," has
circulated a memo to his Republican colleagues threatening to challenge
"tainted" Gore elector votes, and the House Republicans are preparing to
block a Gore Electoral College victory. However, to pull off such a
blatantly partisan stunt the House Republicans will have to ignore the
law, congressional precedent and political prudence. And should they do
so, we'd have a genuine constitutional crisis, or worse.
No one doubts that Tom DeLay is a formidable force in the House of
Representatives. Recent press clippings describe him as a "snarling
rottweiler," a man who "never saw an arm he couldn't twist, a Democrat
he couldn't genially flay and a scrap he didn't want to be part of."
DeLay is reported to be preparing his troops for a scorched earth fight
that could outdo the partisan ugliness of the Clinton impeachment
proceeding, again driving his Republican colleagues like lemmings over
the cliffs of civility and propriety to kill a Gore presidential
DeLay's plan to have Congress block a possible Gore victory in the
Electoral College ignores the law. It appears to be a pure power
DeLay's plans surfaced as his House colleagues whelped that the Florida
recount was threatening Bush's prospects. The New York Times reported
DeLay was circulating an obscurely titled memorandum, "Electoral College
Process in the Congress, " claiming that "the House and Senate can
reject a state's electoral votes if they decide that the votes are
tainted." Later reports note that DeLay's plan "has been discussed at a
high level in the Republican party and is referred to as the "doomsday
Statements of Republican congressional officials and operatives, and the
Bush campaign, outline the emerging and evolving plan. The Washington
players will let the Bush campaign people fight Gore in the U.S. Supreme
Court and, as necessary, the Florida courts. If the courts fail to
deliver a Bush victory, they will turn to the Florida State Legislature,
which can call a special session to appoint Bush electors and ignore a
Gore recount victory. If that fails, and a majority of Gore electoral
votes arrive in Washington, the House Republicans leaders are preparing
for a worst-case situation.
The Doomsday Scenario, at this time, appears to be mostly tough talk,
hot air, and the blustering of bullies. That is not to say it is
impotent, because this is a will with a way. While there is no
constitutional or congressional authority for disqualifying Gore's
electoral votes, a fact confirmed by the DeLay memo, and the material
the House leaders are making available from the Congressional Research
Service (a branch of the Library of Congress), this has not stopped the
Republican leaders from talking as if there were. For example, House
Majority Leader Dick Armey says that the Congress has a "duty to accept
or reject" the electoral vote. In fact, the only way that the House
could reject a Gore win, should Florida ultimately certify him the
winner, would be to ignore the law. So it appears the Doomsday Scenario
would be a pure power politics play ó the law be damned.
A few essentials. The new Congress, the 107th, will convene Jan. 3,
2001. The House (at present, there is still one race in New Jersey
undecided) will consist of 211 Democrats, 221 Republicans, and 2
Independents. Thus, the House is clearly controlled by the Republicans.
The Senate (although the Washington tally is not final) looks like it
will consist of 50 Republicans and 50 Democrats ó including Joe
Lieberman, who will not have yet resigned, and Maria Cantwell of
Washington. Cantwell is the apparent winner over Republican incumbent
Slade Gorton in a tight race now undergoing a recount.) Vice President
Gore will be president of the Senate until noon on Jan. 20, 2001, so he
can cast his vote to break any tie in the new Senate. Thus, for the
first 17 days of the new year, the Senate will be controlled by the
Democrats, given Gore's tie-breaking vote.
By law, the House and Senate meet in a joint session in the House
Chamber, to count the Electoral College votes, and announce the winner.
The Senate has passed a law to move the date of this session from
Saturday, Jan. 6 to Friday, Jan. 5, but the legislation has not been
approved by the House, nor signed by the president.
It appears that Republicans are one vote short of the power to impose
their will, since Al Gore has a vote as president of the Senate.
Gore, as president of the Senate, is the designated presiding officer of
the electoral vote counting session. In 1960, Vice President Richard
Nixon presided at such a session, and declared John F. Kennedy the new
president. In 1968, Vice President Hubert Humphrey declined to preside
and announce Nixon the winner. But in 1988, Vice President George Bush
presided and announced himself the next president of the United States.
There is every reason to believe Al Gore will preside. He would be
foolish not to do so for he may control not only his fate but the
Typically, these sessions are uneventful. History records 45 of these
joint sessions, beginning, in 1789, when the New York electors failed to
get their act together to vote for George Washington to the last
session, in 1996, which took 24 minutes to tally the votes and announce
that Bill Clinton had been reelected. Detailed rules for these sessions
are spelled out by law. The electoral results are opened and announced
state by state, proceeding in alphabetical order.
After the vice president announces the electoral vote of a state, he
must ask if there are any objections. If none, he will proceed to the
next state. But if at least one senator and one representative object in
writing, the joint session is halted, the Senate retires to its own
chamber, so each body can consider the objection in separate session. To
sustain an objection both houses must agree. And the vote tallying
cannot proceed until a pending objection is resolved.
Congress' right to object to electoral votes is very limited, according
to the law.
Following an electoral dispute, the Congress enacted the Electoral Count
Act of 1877, a law that still governs. It would be difficult to find a
more obtuse, densely worded, and difficult to understand statute. Let me
translate the key provisions of the law, which are now found in Title 3
of the United States Code.
Electoral counting by the Congress defers to the states to determine
their electors. The law says a state's determination before the cutoff
date for selecting electors on Dec. 12 "shall be conclusive." If
electors are not determined by the cutoff, as happened to New York in
the nation's first election, that state is simply not counted. In
requiring that each state determine its electors, the law prevents a
Congress from usurping states' authority by imposing its judgment, which
effectively could give Congress the power to disenfranchise any state.
While the Congress must defer to the states, clearly the electoral
vote-counting process is more than a mere ministerial act. But the right
to object to electoral votes is very limited, and applies only to votes
that have not "been lawfully certified" or "regularly given by electors
... so certified."
Certification of electors, set forth in great detail in the law,
essentially comes down to the governor (the executive of the state)
authenticating the names of the electors and sending them to Washington.
For example, if Gov. Jeb Bush, based on the popular vote of Florida,
certifies the Gore electors, or is directed to do so by a Florida court,
there is nothing to which the Congress can object.
While the language "regularly given" is not defined by the law, it
becomes clear from the legislative history. The debate on the 1877
statute in the Senate and House indicate that the references to
regularly given elector votes related to their being given in accordance
with the provisions of the Constitution. Examples used in the debate
related to states casting their votes on the prescribed day, that the
electors are citizens, that the number of votes does not exceed the
number of electors to which a state is entitled, that the electors have
voted by ballot, which has been signed, certified, sealed, and properly
transmitted to Washington. These are regularly given electoral votes.
A recent scholarly study of this law, after reviewing the legislative
history and the congressional precedents, concludes that "the two Houses
cannot reject the [electoral vote] return on account of fraud or defect
in the election of the electors or in the determination of a controversy
Thus, to employ their Doomsday Scenario and reject lawfully certified
and regularly given Gore electors, the Republicans would have to ignore
the law and the precedents. It appears, however, that the Republicans
are one vote short of the power to impose their will , since Al Gore has
a vote as president of the Senate.
While The Hammer might be able to get his Republican colleagues in the
House to ignore the rule of law, Gore can prevent Republicans in the
Senate from following. Without the concurrence of both the House and
Senate no objection to an electoral vote can prevail. However, should
Maria Cantwell lose her Senate seat in a recount, the Republicans would
then have the power to upset a Gore election victory. Would they do so?
Before considering it, I would hope they might think about warning from
Alexis de Tocqueville. Both Republican and Democrats, conservatives and
liberal, have long turned to the wisdom of his 19th century classic,
Democracy In America, with its concern that the greatest threat to
America was a tyranny of the majority. Tocqueville's words remain
"The truth is that once war has broken out between the [political]
parties, government influence over society ceases."
"If ever freedom is lost in America, that will be due to the omnipotence
of the majority driving the minorities to desperation and forcing them
to appeal to physical force. We may then see anarchy, but it will have
come as the result of despotism."
"Thomas Jefferson said: 'The tyranny of the legislature is the most
formidable dread at present and will be for many years.'"
*****John Dean served as White House counsel to President Richard Nixon
and is at work on a book about Watergate revisionism. He is a regular
contributor to MSNBC.com, focusing on government and the law.