councilor.org
| Source | Dave Anderson |
| Date | 00/12/03/01:09 |
| 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. Dave --------------------------------------------------------------------------- Tom DeLay's Doomsday Strategy Undone John Dean on MSNBC, November 25, 2000 http://www.msnbc.com/news/494405.asp?0nm=O1BP&cp1=1#BODY 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 victory. 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 politics play. 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 scenario." 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 nation's. 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 thereover." 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 timely: "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. |
Copyright (c) 1998, Joongpil Cho