The Purpose and Powers of the Senate, Part XXXXV: New Deals and Hail Marys, or The Lame Duck Laid to Rest

     Granting that there does not appear to be any evidence explicitly tying the proposal and ratification of the 20^th Amendment to the opening years of the Great Depression and the highly unfortunate administration of President Herbert Hoover, the proximity of the two nevertheless strongly implies some manner of causal connection. Could it have been a simple coincidence that the United States Congress ended up resurrecting George Norris’s lame-duck amendment at around the same time in 1932 that it became clear the increasingly unpopular sitting President was not going to be reelected? Absolutely. The problems inherent in allowing federal terms in office to continue at significant length beyond the most recent election had been relatively clear – albeit, not always top of mind – for the better part of one hundred and fifty years. Congress accordingly did not need to be acting in response to a particularly urgent dilemma for an appropriate reform proposal to have made sense. That being said, it would seem to make slightly more sense for the immanent defeat of an extremely unpopular chief executive – and the prospect of their remaining in office for months following a rejection at the polls – to be the primary trigger for a substantial discussion of modifying the relevant sections of the Constitution. Consider, in support of this position, certain developments within the Republican Party leading up to Hoover’s re-nomination in June of 1932.

    Writing in the St. Paul Dispatch in July of 1931, former White House physician James F. Coupal (1884-1935) publicly declared that Hoover’s predecessor, Calvin Coolidge (1872-1933), would accept his party’s nomination in place of Hoover if it was offered to him in a free and unqualified manner. Several months later in November, California Senator Hiram Johnson (1866-1945) likewise publicly advocated for Hoover’s retirement from politics following the conclusion of his term as President, specifically in the belief that their party would fare better with a different nominee on the ballot the following year. For several months thereafter, Hoover’s opponents within the party accordingly began seeking out a potential replacement in time enough for the forthcoming Republican National Convention. This group’s first choice, New Jersey Senator Dwight Morrow (1873-1931), had unfortunately died a month prior to Johnson’s public plea to the President, while their second choice, former Vice-President Charles G. Dawes (1865-1951), had already accepted Hoover’s offer to head the aforementioned Reconstruction Finance Corporation. But while this still left a raft of Republican officials favored by the party’s progressive wing as potentially viable candidates – including the likes of Nebraska Senator William Borah (1865-1940), Pennsylvania Governor Gifford Pinchot (1865-1946), and the aforementioned Senators Hiram Johnson and George Norris – it soon became clear that Hoover’s hold on the nomination was much stronger than it appeared. He may indeed have been doomed to lead his party to a crushing defeat at the polls, but the contemporary GOP nevertheless appeared incapable of coalescing around a viable alternative.

    Bearing all of this in mind, the fact that Congress ultimately approved Norris’s lame-duck amendment in March of 1932 would arguably stand to reason. Pursuant to the 1930 mid-term elections, the Republicans held a single-seat majority in the Senate and – following a series of deaths and special elections – had been reduced to a similarly narrow minority in the House of Representatives. In consequence – and in keeping with ongoing attempts by certain members of the GOP to maneuver the incumbent president out of winning re-nomination – it would seem a far from unreasonable turn of events for certain distressed members of the Republican Party to have determined that a constitutional amendment capable of removing Herbert Hoover from office sooner rather than later was decidedly worth pursuing. Not only did these dissidents likely have cause to disagree with the President’s approach to public policy – especially if they counted themselves among the GOP’s aforementioned progressive element – but it would surely have occurred to them that their party’s reputation was bound to suffer the longer the man remained in office. Rather than allow Hoover to win re-nomination – which he was bound to – lose re-election – which he was bound to – and then continue to sully the Republican brand during his last four months in office, these men may therefore have instead opted to approve the lame-duck amendment and thus speed their nominal leader’s ill-omened administration to as prompt an end as possible.

    Notwithstanding the length of time which usually elapses between the approval of an amendment by Congress and its final ratification by the states – tending, on average, towards a year or more – and the grace periods which are often built into amendments themselves, it would in fact have been possible for the lame-duck amendment proposed in March of 1932 to have come into force in time to effect the next scheduled presidential inauguration in March of 1933. This was owing to a specific clause in the text of the amendment itself, the copy of which, in full, states that, “Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.” As the cited sections were the ones which asserted explicitly when the terms in office of the President, Vice-President, and the various members of Congress would thereafter end and begin, a successful ratification no later than October 15^th, 1932 would have immediately shortened Hoover’s term in office by a total of forty-three days. That this was the case – that the proposed amendment was specifically intended so that it could be applied to the incumbent administration – would further seem to indicate that Hoover’s swift removal was on the minds of its supporters. If it had not been – if the amendment had simply been intended to address a long-standing institutional problem – then one would accordingly be forced to wonder at the purpose of the cited clause. Why, in short, make its application at all time-sensitive if it was not intended to address a specific, urgent problem?

    Unfortunately, the amendment’s ratification process is somewhat harder to account for. Based on the assumption that the proposal itself was approved by Congress in part due to the support of dissident Republicans who wished to prevent further harm being done to their party’s reputation, one might thereby reasonably conclude that the ratification of the same would rapidly become one of the top priorities of contemporary public officials situated across the political spectrum. As long as the process was concluded by October 15^th at the latest, Hoover would be forced to leave office on January 20^th rather than March 4^th, an outcome which would allow the incoming President over forty extra days to begin implementing the kinds of wide-ranging social assistance, financial relief, and public works programs that the beleaguered country sorely needed. This didn’t leave the supporters of the proposed amendment very much time to bring about its ratification, of course. As of 1932, thirty-six states constituted the three-fourths threshold for ratification. With only slightly more than six months to go between March 2^nd and October 15^th, six state legislatures would accordingly need to approve the proposed amendment every month in order to reach the relevant deadline. And while this certainly would not have been impossible – previous amendments had managed to meet or even best this rate – it was still something of a tall order.

    Initially, the process did seem to proceed apace. In March of 1932 alone, eight state legislatures voted to ratify the proposed amendment, followed by three more in April. As spring turned to summer, however, the tempo began to slow. Only one state, Louisiana, voted to ratify in June, followed by one more in July and two more in August. September saw a further two states, Texas and Alabama, follow suit, bringing the total up to seventeen. With little more than a month to go before the October 15^th cutoff, nineteen ratifications were still required. With the election for president now in full swing, however – the Republicans having re-nominated Hoover after a rather desultory convention in June while the Democrats coalesced around the ascendant Roosevelt at the beginning of July – there no longer seemed to be any room on the political calendar for anything other than the race for the White House. Precisely when the next chief executive could legally take office was still, doubtless, a matter of significant public concern. Under the circumstances, however, with President Hoover travelling the country continually arguing the dangers of depending on the federal government for assistance while Governor Roosevelt built on the promise in his convention acceptance speech to create a “new deal” for the American people, the question of who would take office naturally rose to the forefront. In the end, of course, Roosevelt emerged victorious, garnering four hundred and seventy-two electoral votes to Hoover’s comparatively measly fifty-nine. Hoover carried six states, Roosevelt took forty-two. And while Hoover did only slightly worse than the victorious Republican candidates in 1920 and 1924 in terms of the popular vote, his tally of fifteen million, seven hundred thousand nevertheless paled in comparison to Roosevelt’s nearly twenty-three million.

    Yes, the American people had most definitely spoken, and with an emphasis and a sense of concord not seen since the beginning of the previous decade. But while Roosevelt’s ultimate triumph did augur a more active federal response in the near future to the privation being daily wrought upon the American people by the Great Depression, it was no longer an open question exactly when the man would take office. The October 15^th deadline having long since been blown past, Hoover would accordingly remain in power into March of 1933. In light of the opportunity which the original amendment proposal had offered, this was doubtless a substantially frustrating outcome for many Americans. Though he had been elected in a landslide to bring the kind of expansive public assistance programs he had erected in New York to the nation as a whole, Roosevelt would nevertheless be forced to wait for almost four months to elapse before being permitted to finally take office. Now, while he was doubtless embittered by his loss, Hoover was unlikely to use the intervening period to deliberately make things more difficult for his elected successor. A stubborn man he may have been, but he had never shown himself to be particularly vindictive. And yet, simply by remaining in office while doing very little to offer substantial relief to his countrymen, Herbert Hoover was bound to do his share of harm as the Depression continued to worsen around him. Meanwhile, of course, the proposed amendment remained on the books, half-finished but still a going concern. And so, as was often the case with amendments to the Constitution, January witnessed a kind of revivification. It may have been a done deal that Roosevelt’s tenure in office would not begin until March 4^th, 1933, but in the event that his policies proved no more effective than Hoover’s, it would be to the benefit of the American people not to be forced into the same situation four years later in 1936.

    But while many amendments, as aforementioned, experienced a sudden burst of support at the beginning of the year following their initial approval by Congress, few quite equals that which carried the 20^th Amendment across the finish line. The most obvious reason that this sort of thing often occurs is surely that majority of states tend to hold their annual legislative sessions in January. Sessions can be called at other times of the year, of course, and as the ratification process for most amendments makes clear, such sessions often are called for exactly that purpose. But depending, among other things, on the nature of the amendment, the identity of the majority party in the relevant legislature, and the ability of lawmakers to make an unexpected trip to the state capitol, it doubtless seems much easier in most cases for state assemblies to simply take up proposed amendments during their regularly scheduled session in January. But while this, no doubt, is what happened at the beginning of 1933, convenience would still not entirely explain the sudden fervor for ratification that seemed to overtake the various states. Between January 4^th and January 23^rd, all of the remaining nineteen states necessary to secure the ratification of the proposed amendment submitted their approval of the same. Where this not – frankly – astounding enough, the eight days that followed – the 23^rd to the 31^st – witnessed a further nine states add their names to the final tally as well. This made for a total of twenty-seven states, all of which voted to ratify the proposed amendment over the course of January 1933, averaging out to something like one state every day for one full month.

    To be fair, such a tremendous acceleration in the rate of ratification was not entirely unheard of. Something very much like it had also happened in 1919 during the process which brought about the ratification of the 18^th Amendment. Having been approved by Congress on December 18^th, 1918, the proposed prohibition amendment languished for an entire year until, in January 1919, the pace of approvals suddenly and dramatically increased. From January 2^nd to January 16^th, all twenty-one states necessary to secure its final ratification voted to endorse the amendment in question, followed by eight more between the 16^th and the 29^th. This made for an astounding rate of twenty-nine states in less than twenty-nine days, a record which even the 20^th Amendment was ultimately unable to beat. But while the final success of the 18^th Amendment – and the regime of nationwide prohibition it inaugurated – was inarguably the product of a long and multifaceted pressure campaign on the part of countless grassroots organizers and political operatives, the success of the 20^th Amendment seemed to be the result of a far more disjointed and ad-hoc process. The various social crusaders at work in the American temperance movement had been endeavoring for decades to build lobbying networks, organize voting blocs, and establish sustainable connections within the mainstream political establishment, the end result of which was a tremendous arsenal of resources which could be brought to bear as the situation required. When the constitutional amendment towards which they had worked for so long became stalled in the states as 1918 drew to a close, therefore, temperance activists had it entirely within their means to suddenly accelerate the process. The same could not be said for the supporters of the 20^th Amendment.

    This isn’t to say that the problem the proposed amendment was intended to address was particularly new or novel as of the early 1930s. On the contrary – and as the last several entries in the present series have attempted to make clear – the ability of lame-duck Congresses and lame-duck presidents to interfere in the ability of the American people to make manifest their democratic will had been painfully evident for almost one hundred and fifty years as of 1932. The thing that set this issue apart from the likes of temperance or the female franchise, however, was that it really only made itself known on an intermittent basis. For most of American history up to the early 1930s, the fact that lame-duck officials enjoyed an extra four months in office beyond their potential defeat at the polls had only shown itself to be a source of controversy on a handful of occasions. Outside of these infrequent occurrences – distressing though they may have been in the moment – the American people seemed inclined to forget that the lame-duck problem existed at all, thereby preventing the emergence of a cohesive reform movement and the concomitant accumulation of influence and resources. Bearing all of this in mind, the fact that the 20^th Amendment also received a burst of support at the beginning of the year following its approval by Congress would seem to be especially inexplicable. Not only does it appear a rather strange turn of events for an amendment which had only seemed to become necessary in the spring of 1932 to experience a sudden surge of support in the states in January of the following year, but the fact of the surge itself would seem rather oddly timed. If such passionate support for the proposed amendment existed at all, why was it deployed in January 1933 instead of the summer of 1932? In short, what caused twenty-seven states to suddenly find their enthusiasm that could not have had the same effect six months prior?

    There do not seem to be any obvious answers to these questions. As aforementioned, the contemporary Republican Party was generally split between those conservatives who were willing to continue to support President Hoover and those progressives who felt that his policies were simultaneously damaging to the country and deleterious to the party’s brand. While it accordingly makes a certain amount of sense for the former group to withhold their support for the proposed lame-duck amendment out of a belief that Hoover deserved to see out his term in office to its intended conclusion, it doesn’t necessarily follow that these same Republicans – who presumably wielded a substantial amount of influence within a great many state assemblies – would have then reversed course entirely once the October deadline was passed. It may be that they favored the amendment in principle but did not want it to apply to Hoover. Or perhaps, having witnessed the full extent of the nation’s discontent with Herbert Hoover in particular and the Republican Party in general – the Election of 1932 having flipped the Senate in the Democrat’s favor and increased their House majority from two hundred and twenty seats to three hundred and eleven – certain Republicans sought to shore up their party’s badly tarnished public image by enthusiastically throwing their support behind a measure which had already shown itself to be broadly popular. Or maybe, as aforementioned, it was simply a question of timing.

    Unwilling to convene in special session to ratify an amendment which, even if approved before the deadline noted in its text, might not actually have had all that much effect on the nation’s already troubling economic state, it’s quite possible that most state legislators opted simply to wait until their customary January meeting. And then, having taken the opportunity to study the proposed amendment in some detail, they then universally decided that it was worthy of their approbation. Granted, this would not necessarily explain the intensity of support which the proposed amendment suddenly garnered, but perhaps it doesn’t need to. The 20^th Amendment, even divorced from the circumstances which likely led to its approval by Congress, was a very necessary reform. Several incidents in the early 19^th century had made this fact painfully clear. And while it seemingly took most state legislators until January of 1933 to take account of this fact, their tardiness need not be evidence of anything other than run-of-the-mill political lethargy. Lethargy, granted, that was followed by a frankly astounding burst of activity, but lethargy all the same. And while this apparent sense of malaise did ultimate prevent the 20^th Amendment from applying to Herbert Hoover – thus permitting his term in office to continue until March 4^th, 1933 – it at the very least did not prevent the reform in question from being enacted with uncommon speed. By January 23^rd, 1933, thirty-nine states had voted to ratify, three more than the requisite thirty-six. Less than a month later, following certification, this tally rose to forty-six, with the remaining two states, Maryland and Florida, submitting their belated ratifications in March and April, respectively. Thus it was, a little more than a year following its approval by Congress, that the 20^th Amendment to the United States Constitution had been endorsed by the legislatures of all forty-eight states.

    As to how one would classify the amendment itself – whether, according to the criteria established previously, it could be described as a popular proposal or was more institutional in nature – there likewise does not seem to be an obvious conclusion. On the one hand, the essential nature of the thing would seem to suggest that only public servants and political operatives were likely to be interested in its passage. It only effected, after all, certain specific aspects of the federal timetable for which the average American doubtless rarely spared a thought. Granted, on certain previous occasions, the order of operations by which federal officials were sworn into office had had a tremendous effect on the lives and livelihoods of everyday American citizens. The election of Thomas Jefferson by a lame-duck Federalist Congress in 1801, for example, fundamentally altered the course of the nation’s early political history. Not only did it allow for the first peaceful transfer of power between rival political factions in the history of the America republic, but it ushered in the age of Jeffersonian democracy, a period of administrative decentralization that witnessed the repeated and widespread expansion of the electoral franchise and a concomitant diversification of the nation’s political elite. Had the incoming Congress been given the choice instead – and if that same body had conspired to grant the presidency to Aaron Burr – one cannot help but conclude that the proceeding era would have played out very differently indeed. Laying aside the dubious speculation of many contemporary observers that Burr was a charlatan who was bound to drag the nascent republic in a decidedly aristocratic direction, one can at the very least quite easily envision a split occurring among the Democratic-Republicans between the supporters of Vice-President Jefferson and the devotees of President Burr. What might have come of this split, ultimately, it would not do to speculate here. Suffice it to say, as far as the American people were concerned, their lives would likely have been altered in a most dramatic fashion.    

    Just so, the 1825 election of John Quincy Adams by another lame-duck Congress served to fundamentally fracture the ascendant Democratic-Republican Party and arguably accelerated the rise to power of radical populist Andrew Jackson. Had Jackson been elected in place of Adams by the incoming Congress rather than the outgoing Congress, one fairly struggles to imagine the potential consequences for near-term American history. Without a “corrupt bargain” around which to build a fervent following, would the relatively inexperienced Jackson have been able to sustain his popularity? Would the Democratic-Republican Party have split quite as quickly or as definitively under Jackson’s leadership in 1825? Would the 2^nd Bank have been destroyed sooner? Would there have been a financial panic in 1836? In attempting to answer just about any of these questions, one cannot help remarking upon the incalculable effects that the presence of a lame-duck Congress in February of 1825 ultimately wrought upon the fates and fortunes of millions of Americans. Clearly, then, while 20^th Amendment did constitute a substantially technical kind of reform – of the sort normally of interest only to public officials and political insiders – the issue which it sought to address had often drastically affected the lives of everyday Americans. Granted, the last time this had been obvious before the early 1930s had been several decades prior to the American Civil War. But while the American people may not have had cause to grasp the practical significance of certain aspects of the federal timetable for nearly one hundred and fifty years as of 1932, this did not necessarily preclude them from being made to grasp it again. All that was required was the right kind of crisis.

    Then again, when one re-examines the specific circumstances under which the 20^th Amendment was ultimately approved by Congress and ratified by the states, the role of certain institutional actors would seem to be quite significant. In order to be submitted to the states for ratification, recall, any proposed amendment requires the affirmation of two-thirds of the sitting members of both the Senate and the House. And so, while the Democrats had a majority in the latter and one seat less than the Republicans in the former as of 1932, they could not have approved the lame-duck amendment proposal entirely on their own. They would have if they could have, to be sure. It would have been very much to their benefit to hasten the conclusion of Herbert Hoover’s term in office and usher in their chosen candidate, one Franklin Delano Roosevelt. The sooner Roosevelt was able to begin implementing his promised “new deal,” the sooner the Democrats could begin to rehabilitate their reputation after losing three presidential elections in a row over the course of the 1920s. But as it then stood, according to the terms of the Constitution, they would require the assistance of a certain number of Republicans. Eighty-eight of them, to be exact, bringing their majority of two hundred and nineteen in the House up to the two-thirds threshold of two hundred and ninety and their minority of forty-seven in the Senate up to the requisite sixty-four. The fact that they were ultimately able to accomplish this, as aforementioned, is really very telling. Clearly, no small number of congressional Republicans saw some benefit to shortening Hoover’s term as well.

    Perhaps, as noted previously with the various Republican legislators in the states, these federal members of the GOP simply saw the inherent wisdom in the proposal. They may not have felt it the most urgent thing in the world to usher President Hoover out of office some forty days ahead of schedule, but the utility of shortening the lame-duck session might still have been reasonably evident. And so, presented with the opportunity to secure the passage of an amendment which made good sense regardless of the circumstances of the moment, they opted to vote in its favor. Then again, it may also have been a question of post-disaster damage control. Hoover’s continued presence in the White House, particularly by the end of 1930, had proved itself to be quite corrosive to the reputation of the Republican Party as a whole. The results of the 1930 mid-terms were proof enough of that, with the Democrats picking up fifty-two seats on Election Day and winning enough special elections over the next several months to take control of the House for the first time since 1919. The Senate remained in Republican hands, if only by a single seat, but the balance of governorships – previously weighted thirty to eighteen in favor of the Republicans – also shifted in favor of the Democrats to a ratio of twenty-five to twenty-one. Clearly, between the elections of 1928 and 1930, something had happened to set the American people against the Republican Party in spite of the former’s consistent support of the latter throughout the 1920s. The most obvious culprit, of course, was Herbert Hoover, his leadership, and his response – or lack thereof – to ravages of the Great Depression. And while it may not have been possible to replace Hoover at the top of the ticket going into the Election of 1932 – in large part because there just didn’t seem to be any viable alternative – many Republicans were doubtless concerned about their prospects and eager for some means to separate themselves from their ill-starred leader.

    The 20^th Amendment no doubt appeared to be a suitable lifeline. Granted, its passage would not prevent the Republicans from losing control of the White House, but its application being tied to a specific deadline predating Election Day would conceivably have allowed anxious Republicans to draw a distinction between themselves and their doomed nominee for President. “Yes,” they might tell their constituents while they were campaigning for re-election, “Herbert Hoover has indeed led the country astray. And it was for that exact reason that I voted in favor of the lame-duck amendment. He will surely be defeated when he faces the voters in November, but I think we can all agree he could always leave sooner than next March.” There was no guarantee, of course, that the proposed amendment would be ratified in time to actually apply to the incumbent president. But as long as the otherwise vulnerable Republicans remembered to pawn off any blame for failure on the noted lethargy of state lawmakers, support for the proposed amendment might still have proven itself a useful tactic. And in this sense, the relevant reform might be thought of as being both popular and institutional in nature. On the one hand, its passage was likely aided by a desire on the part of certain vulnerable Republicans to insulate themselves from what they had every reason to believe would be a particularly bruising election cycle in November of 1932. It might thus be fairly described as a means by which a group of political insiders sought to hold on to their accustomed power. On the other hand, however, given precisely what it was that these same Republicans had cause to fear – i.e., the disapprobation of the American public – it might also be perfectly valid to think of the lame-duck amendment as a measure largely propelled to ratification by widespread public discontent. After all, had Hoover not so thoroughly made himself an object of public scorn, would anyone have suddenly thought it necessary to shorten the term in office of the sitting president?

    In either case – again, reaching far, faaaar back to where the current discussion actually began – the impact of the 17^th Amendment on the behavior of the Senate within the specific context of its approval of the 20^th Amendment would seem to be fairly clear. The fact that, per the terms of the 17^th Amendment, the Republican Senators who were up for re-election in 1932 had to make their case to the general population of their states rather than to the legislatures thereof doubtless strongly colored whether they supported the lame-duck amendment or not. Had the legislatures still performed the role of insulating Senators from being directly accountable to the public, fewer of them would surely have had cause to fear being unambiguously associated with President Hoover and his disastrous response to the opening phase of the Great Depression. Indeed, so long as they continued to please their legislative sponsors, one finds it hard to imagine that any Republican Senators in states with Republican-controlled governments would have needed to harbor any anxiety whatsoever. As it stood, however, the fact that Senators at the federal level were elected by popular vote arguably made the re-election bid of every Republican incumbent in 1932 a referendum on the policy record of Herbert Hoover as well as themselves. What else had the President been doing, after all, but giving voice to Republican orthodoxy? And How many Republican Senators had voted in favor of Smoot-Hawley? Some kind of answer was required; the people would surely demand it. And while some progressives in the party might reasonably have claimed that they were opposed to Hoover from the very start, those not possessed of similarly radical bona fides would have had every reason to grab hold of anything that might seem to separate them from their party’s nominee. The 20^th Amendment, as it might have applied to Hoover himself, had the potential to be exactly that. And the reason for this, amusingly enough, was effect of the otherwise unrelated 17^th Amendment.

The Purpose and Powers of the Senate, Part XXXXIV: The Last Straw

    A great deal of time passed between the inconclusive Election of 1824 and the ratification of the 20^th Amendment in 1933, of course. Time, that is, and history. In the intervening century, several wars were waged in which the United States was a participant, not the least of which was the exceptionally bloody conflict that pitted American against American between 1861 and 1865. Railways were built, and roads were paved, and the automobile became commonplace, and the first commercial airlines came into existence. And the telegraph, in a very real way, revolutionized long-distance communication, which the telephone accomplished again, and then the radio did for a third time. And in the midst of all of this, and presidential assassinations, and the rise of the motion picture, not one presidential election was again thrown to a lame duck Congress. At least one more election did come to an inconclusive end, ironically amidst the centennial celebrations of 1876. But while previous impasses had resulted from a failure of any candidate to secure a majority in the Electoral College, the Election of 1876 instead witnessed failures on the parts of several states in the South to agree on which of the two candidates had actually secured their votes for president.

    In Florida, Louisiana, and South Carolina, it seemed, both parties claimed that their slate of electors had been chosen, the result of which was a stalemate leaving Democrat Samuel J. Tilden (1814-1886) with one hundred eighty-four of the required one hundred and eighty-five votes and Republican Rutherford B. Hayes (1822-1893) with one hundred and sixty-five. Neither party wishing to either concede to the other or else simply dismiss the stalemated states and proceed to a vote in the House, the result was a hastily convened bipartisan electoral commission which thereafter awarded all twenty disputed voted to Hayes. The point of this anecdote – if it has not already become clear – is to reaffirm the statement made above that no presidential elections were again decided by a contingent vote in the lame-duck House after 1824 and before 1933. The Election of 1876 came extremely close to this exact outcome but was saved by a last-minute settlement resulting from both public and private negotiation. Resorting to the House in some ways might have been the tidier solution. There was no precedent at all for the electoral commission that Congress ultimately convened, and the election itself – particularly in the three disputed states – had resulted in a distressing amount of fraud, intimidation, and exceptionally deadly political violence. Holding a contingent vote in the House, on the other hand, was a proven mechanism for resolving such disputes, and one which carried with it both the stamp of experience and the implicit imprimatur of the Framers of the Constitution. That both parties sought to avoid such an outcome, however, likely had little to do with which of the options available to them had been proven by experience.

    Circa 1876, the Civil War yet loomed large in the popular memory while two southern states – not coincidentally, South Carolina and Louisiana – remained under federal military occupation. And while certain strides had been made in the field of Black civil rights – between the 13^th, 14^th, and 15^th Amendments and a raft of anti-discrimination laws approved by Congress between 1866 and 1875 – violence, vigilantism, and electoral fraud directed against the Black community were still quite common in certain parts of the country. A contingent vote in the House, particularly if it dragged on through several ballots, would surely have brought all of the ill-feelings resulting from these developments to light, potentially igniting further controversy and making it that much harder for the eventual victor to claim a clear mandate to govern. It was likely for this reason – potentially among several others – that contemporary Democrats and Republicans settled upon the more contained and more expedient solution of an electoral commission. At fifteen total members, it could meet and conduct its business with relative ease and efficiency. And because its conduct was not public – and because both sides had agreed to abide by its conclusions – it’s members could transact their business without fear of excessive scrutiny. The result, as it happened, was what the situation seemed to call for. The commission worked quickly, delivered a decisive answer, and allowed the stalled election to conclude. 

    For the purpose of the present discussion, however, this might be said to have done little more than kick the can down the road. Having avoided another instance in which a lame-duck Congress was permitted to exercise a frankly terrifying degree of authority, the American people were once more given permission to ignore the fact that their system of government occasionally allowed such things to occur. And most Americans did ignore it for most of the next sixty-odd years. Congress continued to be sworn in biennially on March 4^th, the ballots of the Electoral College continued to be counted quadrennially on January 6^th, and while occasionally someone was given to remark upon the inconvenience of the delay, there nevertheless didn’t appear to be any pressing reason to alter this long-standing federal timetable. Woodrow Wilson (1856-1924) came closest to acknowledging the difficulties inherent to the same near the end of his second term in office when he conceived a substantially creative solution to his own potential relegation to lame-duck status. Apparently eager to prevent the American people from being robbed of decisive leadership in the event of his defeat in the Election of 1916 – the substance of which concerned the American position vis-a-vis the ongoing war in Europe – Wilson proposed that he appoint the victorious Republican candidate, former Supreme Court Justice Charles Evans Hughes (1862-1948), as his Secretary of State, at which point both he and his Vice-President, Thomas Marshall (1854-1925), would resign. In keeping with the Presidential Succession Act (1886), Hughes would then ascend to the office of President several months in advance of his scheduled inauguration on March 4^th, 1917, thus obviating the need for a lame-duck chief executive in the midst of a potentially decisive period in American history.

    In all fairness to Wilson – a man whose legacy is complicated at best – he is to be commended on both his conscientiousness and his creativity. That he believed it undesirable for the American people to have to suffer his own lame-duck leadership after having rejected his effort at reelection represents a greater degree of sensitivity to the often-troubling ambiguities of republican government in America than most American statesmen ever seem capable. The plain fact of the matter is, of course, that none of it ever became necessary. Wilson was reelected in 1916, his two hundred and seventy-seven Electoral Votes edging out Hughes’ two hundred and fifty-four. And so, for the better part of the next two decades, the lame-duck issue was once more largely forgotten. Not entirely forgotten, mind you, for there remained, as ever, a few thoughtful fellows about. One of these, as it happened, was a Nebraska Republican named George W. Norris (1861-1944). Elected to the Senate in 1913, Norris served until just slightly over a year before his death and made a name for himself over the intervening three decades as a champion of progressivism, liberalism, and reform. At the start of his career, for example, he came out strongly in favor of the direct election of Senators. During WWI, in the midst of a great deal of debate between isolationists and interventionists, he ultimately arrived at the conclusion that the entire conflict was the product of corporate manipulation. And when Congress was finally requested to grant a declaration of war in 1917, Norris was one of only six Senators to vote against it. In keeping with this record of reformist iconoclasm, Norris also proposed, in the 1920s, two major amendments to the Constitution, neither of which were adopted at the time. One would have eliminated the Electoral College entirely, a reform arguably as necessary as it is impossible to actually achieve. And the other would have shortened the aforementioned lame-duck period.

    At the time, again, nothing came of this latter proposal. In the midst of a period of relative peace and prosperity – compared, at least, to the rather tumultuous 1910s – few members of Congress in the 1920s likely felt the need for a swifter transition of power. But then, at the end of the decade, something catastrophic occurred. Between September and November of 1929, share prices listed on the New York Stock Exchange unexpectedly crashed. There had been warning signs, in fairness, as early as May of that year when a notification from the Federal Reserve on the dangers of excessive speculation led to a rapid sell-off that was only halted by a credit guarantee on the part of banker Charles E. Mitchell (1877-1955). But while this brief slump had the effect of sowing momentary doubt on the part of investors, the market’s seeming recovery by June and July effectively allayed any fear that a much greater crisis was in the offing. When the market began to crumble for a second time in September, therefore, the popular response, rather than damage control, was one of out and out panic. A renewed slump turned into a slide, which turned into an all-out crash as investors responded to the efforts of men like Mitchell to once again shore up the market by dumping all of their assets and recouping as much liquidity as they could. By October 29^th, tens of millions of shares were actively being sold, resulting in the loss of billions of dollars and an even greater increase in panic selling. At month’s end, some stocks were incapable of finding buyers at any price and the efforts of financiers like the Rockefellers and Thomas Durant (1861-1947) to staunch the bleeding proved entirely futile.

    The Great Depression (1929-1939) having thus begun, the American people understandably looked to their political leaders for a way out of the crisis or, barring that, some manner of solace. The office of President, unfortunately, was then held by one Herbert Hoover (1874-1964), a former mining executive and public functionary who’d made a name for himself during WWI as a kind of technocratic polymath. A firm believer, in the traditional Republican mold, in the importance of small government and fiscal conservatism, Hoover first tried to spin the crash as a fundamentally necessary market correction only to then advocate strongly against any manner of federal intervention in the economy. Going “on the dole,” he said, would only cultivate a culture of dependence, and the American people were better than that. In place of direct assistance, Hoover accordingly proposed a raft of private, state-level, and generally passive responses ranging from wage freezes in the railroad industry, the continued funding of farm loans, a general lowering of federal interest rates, and the creation of a federal agriculture tariff. Such policies, Hoover hoped, would create a kind of cushion for the American economy, ameliorating the worst effects of the crash while the private sector and the states worked to repair the damage in the meantime. As events would very soon prove, however, such a hands-off approach vastly misread both the severity of the crisis and the mood of the country. When Hoover requested of Congress the agriculture tariff that he had campaigned on in 1928, they returned to him – at the hands of Oregon Representative Willis Hawley (1864-1941) and Utah Senator Reed Smoot (1862-1941) – a whole host of tariffs targeting both industrial goods and produce. Various members of Congress, it seemed, in exchange for their support of the President’s measure, demanded that industries in their home states also receive federal trade protection. The result – arguably unsurprising in the midst of a nationwide economic crisis – was a bill that raised import prices on several thousand items to record high levels, the likeliest result of which was almost certain to be international retaliation.

    Business leaders and economists in some cases literally begged President Hoover not to sign the relevant bill into law. But while he was sensitive of the effects that the measure was likely to elicit, the pressure from his party, his cabinet, and certain other voices in the business world were evidently too much to bear. On June 17^th, 1930, Hoover accordingly signed off on the Tariff Act, the result of which, over the next several months, was a drastic decline in international trade. Nations like Canada, France, and Britain responded by imposing retaliatory tariffs on American imports, further squeezing the American economy and worsening the ongoing financial recession. By the middle of the following year, the nation was in truly dire straits, with unemployment rising to fifteen percent while banks failed across the country and countless farmers had their properties foreclosed on. In the midst of these unheard-of levels of privation, Hoover’s continued opposition to direct federal intervention – combined with his rather reserved personality – effectively transformed him into the cultural embodiment of the American people’s collective misery. Viewed as aloof, cold, uncaring, and rigid, the President was soon lending his name to numerous features of the indigent experience, with shantytowns increasingly known as “Hoovervilles” and discarded newspapers referred to as “Hoover blankets.” All the while, the economy continued to flounder, a drought was shaping up in the prairie regions of states like Texas and Oklahoma that would go on to obliterate the productive capacity of some sixteen million acres of farmland, and the federal government continued to preach the paramount importance of strictly private and local assistance. The American republic, in short, was in extremely rough shape.  

    As unemployment rose to twenty-three percent at the beginning of 1932, President Hoover finally began to soften his anti-interventionist position, though never to the extent that his millions of constituents cried out for. In January, for example, he persuaded Congress to authorize the creation of the Reconstruction Finance Corporation, a government-owned-enterprise whose purpose was to lend financial assistance to private entities like banks and railroads as well as public entities like state and local governments. In July, he went further still by signing into law the Federal Home Loan Bank Act (1932), the intent of which was to provide federal loans to various sectors of the housing and real estate industries, and the Emergency Relief and Construction Act (1932), an early public works program targeted mainly at shoring up existing federal infrastructure. These were, to be sure, much-needed measures, particularly as they sought to lower housing costs and provide jobs for the unemployed. But ultimately, they did very little to either speed the process of economic recovery or shore up Herbert Hoover’s flagging reputation. The President, in fairness, actively hindered himself as often as not. In defiance of the advice of certain of the era’s leading economists that deficit spending was the surest way to speed the Depression along to its end, Hoover and his traditionalist compatriots in the Republican Party insisted on trying to maintain a balanced federal budget, the product of which was a series of tax increases that did nothing at all to stimulate the economy while also failing to generate the desired financial equilibrium. Furthermore, in response to calls from local authorities to loosen the enforcement of – if not outright repeal – the 18^th Amendment in the hopes that taxes on alcohol sales might provide a much-needed funding source, Hoover likewise remained uncompromising, in large part because he feared losing the support of his party’s prominent “dry” faction.

    The man, in short, seemed almost determined to undermine himself, a quality which all but guaranteed his defeat in the forthcoming Election of 1932. The Democrats, of course, had not held the presidency since the end of Woodrow Wilson’s second term in March of 1920, failing even to capitalize upon the blatant corruption of the administration of Republican Warren G. Harding (1865-1923). But as winter gave way to spring and Hoover remained as rigid as ever, the prospects of the GOP began to look positively dismal. While the incumbent president continued to encourage his fellow Americans to allay their anxieties by remembering that the United States was built upon a foundation of “personal liberty” and “free enterprise,” prominent Democratic officials like New York Governor Franklin D. Roosevelt (1882-1945) were developing and implementing expansive anti-poverty programs like the Temporary Emergency Relief Administration, a public works project on a broad scale that sought to provide employment, vocational training, and material relief to those in the Empire State most effected by the ongoing Depression. By March of 1932, Hoover’s prospects seemed all but non-existent while the Democrats seemed destined to once more claim the White House. If what most observers assumed would take place did in fact occur, however, the result was almost certain to be an unusually awkward period of transition.

    If, as most people seemed inclined to predict, Hoover did lose his reelection bid in November and some manner of Democrat won, the reason for it would almost certainly be a round rejection on the part of the American people of the kinds of policies that the Hoover was determined to implement as president. And if the Democrat in question turned out to be someone like the aforementioned Franklin Roosevelt – or if, indeed, it was Roosevelt himself – the expectation on the part of the voters would surely have been that their new president would provide them with substantial and wide-ranging financial relief. But once the votes were cast, and Hoover declared defeated, a period of four months would elapse before his successor was bound to take office. That would mean four more months of half-hearted attempts to meet the needs of a suffering nation with a mixture of private enterprise and platitudes. Four more months of bank failures, four more months of farm foreclosures, four more months of mounting unemployment, and four more months of ideological rigidity, all at the hands of a stiff-necked, unbending chief executive whom the American people would already have rejected. If even a fraction of that time was instead turned over to the incoming Democratic president, any number of relief measures might be prepared and set in motion as early as the spring of 1933. Within the context of a nationwide economic crisis during which the country’s financial state had seemed to deteriorate on a daily basis for the better part of four years, the sooner the reins of power were turned over to fresh, bold leadership, the better. Unfortunately, Hoover’s term was not set to expire until March 4^th, four years to the day that he first took his oath of office. And so, barring some manner of constitutional reform – the term in office of the President being described explicitly in the Constitution – the sitting president would remain just that until the last second of his tenure had fully and finally elapsed.

The Purpose and Powers of the Senate, Part XXXXIII: The Killing of 2,500 Englishmen

     The one contender who had most definitely anticipated an inconclusive outcome to the Election of 1824 – indeed, counted on it – was Henry Clay, who was then serving as Speaker of the House. With four men in the race and Jackson poised to swallow up an otherwise unforeseen portion of the voting public’s increasingly rapturous support, Clay shrewdly predicted that no one of them could possibly have hoped to secure the necessary votes in the Electoral College to declare victory in the first instance. No, the canny Kentuckian surmised, the race would certainly fall to the House of Representatives to settle, and therein lay the great advantage of Henry Clay. As Speaker, it would be a relatively simple matter for him to maneuver the various delegations into voting as he saw fit. So long as he came in third or better in the initial contest – in keeping with the 12^th Amendment’s provision that the House must choose from among, “The persons having the highest numbers not exceeding three on the list of those voted for as President” – Clay could therefore effectively anoint himself. With Crawford, to his eyes, the least popular of the three – and with the man having suffered a rather sever stroke in 1823 – the Speaker was accordingly assured that the office of President was as good as his. So crushing a disappointment it was, then, when Clay was the one who came in forth. Thus excluded from the contingent election which he had envisioned as his own coronation, Clay was accordingly left in the position of choosing whom among the men he had lately anticipated defeating would instead take his place as the President of the United States.

    While the resulting decision was a fairly bitter one for Clay, it did not prove, ultimately, to be a very hard one. The Speaker would certainly not hand the presidency to Crawford, a man whose politics he disagreed with and whose health had just been exposed as being alarmingly precarious. And for Jackson, Clay had nothing but venom and recrimination. Writing to one of the future founders of the anti-slavery Republican Party, Francis Preston Blair (1791-1876), Clay tellingly called into question the competency of the popular Tennessean on February 29^th, a little less than three weeks after the contingent vote was held. “I cannot believe [,]” he said, “That killing 2,500 Englishmen at New Orleans qualifies for the various, difficult, and complicated duties of the Chief Magistracy.” Jackson, in Clay’s mind, was a demagogue in the making, a kind of folksy Caesar who, if given the chance, would claim the backing of the people as an excuse to violate any law or regulation which he deemed to be burdensome. Such a man, who also displayed an unambiguous desire to tear down the nation’s entire financial system, could not possibly be permitted to wield the powers of Chief Executive. This left Adams, of course, as the only viable choice, a man whose temperament and approach to politics were not at all like those of Clay. And yet, in spite of their differences, Clay and Adams were more aligned in terms of policy than not. Both men believed in the efficacy of high tariffs and central banking, and furthermore regarded the ideal character of the federal government as being regulatory, constructive, and fundamentally activist. Yes, Clay could deal with Adams, perhaps even develop a partnership. And so, on the first ballot on February 9^th, 1825 – truly a testament to Clay’s influence in the chamber – the House voted, by state delegation, to elect John Quincy Adams as President.

    Jackson, of course, was shocked and outraged by the sudden reversal of his fortunes. Going into the contingent election, he had assumed – not unreasonably – that his first-place finish in terms of both the Electoral College vote and the popular vote would incline the assembled Congressmen to vote in his favor. Granted, the percentage of the popular vote he had secured was significantly lower than a majority – coming in at around forty-two percent – but if any one of the three remaining contenders had to be declared the victor, selecting Jackson would assuredly have been the most in keeping with the popular will. There was some warning, it must be said, that this might not have been the final outcome. Shortly before the House assembled, a Philadelphia newspaper called the Columbian Observer published an anonymous statement from a supposed member of Congress who wished his countrymen to know that a clandestine bargain was afoot. Speaker Clay, he said, had already made a deal with Secretary Adams, the substance of which was that the former would anoint the latter in exchange for an appointment as Secretary of State. Nothing came of this claim at the time – no investigation was launched; the author’s identity was never sought – but time would soon enough prove that there was very likely something to it. For indeed, once having convened, the House did determine to elect John Quincy Adams to the office of President. And Adams, a short time later, did offer to make Clay his Secretary of State. Notwithstanding the appearance of corruption, Clay decided to accept the offer.

    Clay might have declined, of course, while protesting his innocence, but this was very unlikely to make the accusations go away. And so, as long as he was going to be accused of corruption no matter what, it seemed to him the only logical choice to accept the most prestigious position in the incoming president’s cabinet. Given the number of recent presidents who had ascended to that position from the State Department – including Madison, Monroe, and now Adams – the offer was also more than a little bit auspicious. Naturally, Jackson was furious. Clearly, the election had been stolen from him. Clearly, Clay and Adams had made a “corrupt bargain” to rob the American people of their preferred candidate for the highest office. Such rank corruption was intolerable, made that much worse by how blatantly it had been committed. It was a question of fear, of course. The elites – the money men, the bankers, the speculators, and the crypto-monarchists – had conspired to defraud the American public because they all feared what Jackson might do once in power. They feared for the 2^nd BUS, which Jackson openly despised, and coveted the power it gave them over the lowly farmers and merchants that were rapidly settling in the West. And they feared his populism and his hatred of corruption and his dedication to Jeffersonian principles. In short, he terrified them in every aspect, and so they put him in his place. Adams was their man – their puppet – and Clay their willing tool. Between them, rest assured, the country was bound for four years of misery.

    Such were doubtless the bitter reflections of a man who just had the presidency seemingly snatched from his hands. In point of fact, neither Clay nor Adams had done anything that could possibly have been construed as either illegal or unconstitutional. The Constitution gives the House of Representatives the right to settle inconclusive presidential elections. And in 1824, Clay was the Speaker of the House. Should he have allowed the various state delegations to vote as their members preferred without interference? Perhaps so. Jackson had secured more popular votes and more electoral votes than any of his fellow candidates. And while this did not entitle him to an automatic elevation to the presidency, it did make for a strange outcome that the single man preferred by more of the voters than any other ultimately came in second to the runner up. But was it really a corrupt bargain that produced this result? As aforementioned, Adams was the only person Clay was particularly inclined to support. Why, then, should he not have attempted to use the legitimate power at his disposal to grant the New Englander a victory? And why, having secured said victory, should Adams not have granted the key position in his cabinet to the most powerful and influential statesmen with whom he had the most principles in common? Who else, in short, but Henry Clay, was John Quincy Adams supposed to choose? The whole exchange was a little less than democratic in the strictest sense of the term, to be sure. But it was also unambiguously the product of the laws and constitution of the United States of America.

    What does bear asking, however – to get back, finally, to the topic of the present discussion – is whether or not the 20^th Amendment would have changed the outcome of the vote in the House. As it stood, the outgoing members – with Henry Clay at the head of them – were the ones tasked with determining which of the three men would ultimately claim the office of President. And this fact, as aforementioned, gave Clay a tremendous advantage. As Speaker of the House – a position to which he had been most recently elected in 1823 – he held tremendous sway over the goings-on in the lower chamber of Congress. In fact, by placing his allies in key committee positions, frequently taking part in floor debates, and deftly controlling the legislative agenda, Clay had actually helped to expand the power of the office itself, making the Speaker something more like an independent and equal rival to the President of the United States than a mere functionary of Congress. What this meant in practice, of course, is that Clay had a great many strings to pull when the House convened to hold a contingent election in February of 1825. Two years into his latest tenure in office, many men doubtless owed him favors or else were eager to cultivate his patronage. Some of them, to be sure, would not have counted themselves among his allies. But then many of those same men were likely beholden to the Speaker anyway. Being, as he was, the most powerful man in the chamber, Clay was almost certainly the recipient of a great deal of information about his fellow members. Who sought re-election and who didn’t; who had mistresses, or illegitimate children; who owed money, and to whom, and how much; all such bits and pieces of gossip were bound to find their way to the Speaker’s office eventually, and in his hands, they surely did not go to any waste. Clay, in short, was ideally situated to decide the outcome of the contingent vote, a state of affairs in no small part made possible by the fact that, at that moment, he was at the end of his latest tenure and at the height of his considerable powers.  

    Consider, however, the potential outcome if it had been the incoming House that was summoned on February 9^th, 1825. In actual fact, this gathering of Congressmen did not meet until December of 1825, some eight months after the inauguration of John Quincy Adams as president. By that time, the results of the contingent election had effectively split the Democratic-Republican Party into two mutually antagonistic factions. There were the “anti-Jackson” men, being those who supported President Adams and favored the kind of economic nationalism espoused by him and his Secretary of State, and there were the Jacksonians, being those who believed that the 2^nd BUS and its attendant financial system were corrupting the nation’s spirit. Over the course of Adams’ four years in office, these two informal groupings would slowly but surely evolve into two distinct and increasingly formalized political parties. The anti-Jacksonians would eventually become known as the National Republican Party, adopting a name which sought to emphasize both their ties to the Jeffersonian Republican Party and their tendency to view most policy questions as having truly national answers. And the Jacksonians, meanwhile, evolved into the Democratic Party, likewise rebranding themselves in an attempt to draw attention to their purported values – in this case, populism and the popular direction of public policy.

    Based solely on this realignment of the political status quo – and bearing in mind that contingent elections are carried by a majority vote of the state delegations – Jackson would likely still have lost. As of December 5^th, 1825 – being the first full session of the 19^th Congress – nine state delegations were controlled by the Jacksonians while thirteen were controlled by the Anti-Jacksonians. But if the incoming House had met in January instead of December – in time enough, that is, to count the votes of the Electoral College – then the spilt in the Democratic-Republican Party would not yet have happened. The newly-elected Congressmen – along with their counterparts in the Senate – would have assembled, been sworn in, and then proceeded to count the relevant ballots. The impasse which would trigger the contingent vote would at this stage become apparent, thereby almost certainly beginning the process by which the various Representatives would begin to sort themselves. But without a Speaker – Clay’s tenure having ended with the previous Congress and another election having yet to be held – and without committees – the principal tool by which Clay engendered loyalty and exerted influence – one wonders just how much power the venerable Kentuckian would have been able to wield. He would still have been Henry Clay, of course, a veteran former Speaker and most likely to hold that same post once again. There would surely have been any number of his fellow Congressmen who still owed him favors or were eager to owe him in the future. But between the turnover resulting from the election in November and the fact that whatever power Clay could claim was essentially theoretical, the elevation of John Quincy Adams would not necessarily have been inevitable.

    Consider, for example, the basic math with which Clay would have been confronted in the event he decided to run for another term as Speaker. According to the factional affiliations of the 19^th Congress, there were one hundred and six Jacksonians and one hundred and seven anti-Jacksonians seated in the House of Representatives. Keeping in mind that these tallies embody the partisan standing of the lower chamber several months into the presidency of John Quincy Adams, it would seem reasonable to characterize the likely balance of power as of February, 1825 as being well within the margin of error. As Speakers are elected by a simple majority vote, this would accordingly call into question the ability of Henry Clay to secure another term in that coveted office. His previous term having ended, therefore, and the viability of another term potentially in doubt, Clay might well have found himself in an unusual position of weakness. If all one hundred and six men who would later declare themselves to be Jacksonians were determined not to elect Clay to the speakership in the event that he ran for another term, and if these one hundred and six men were able to convince a single anti-Jacksonian-to-be to follow suit, Clay would thus have been robbed of his ability to promise future committee assignments to those Representatives who did not already owe him favors. This would presumably leave only the returning Congressmen already in Clay’s orbit securely in his pocket – that being, presumably, a smaller total number than at the end of the previous Congress. Thus deprived of the influence over the House to which he had become accustomed, it would accordingly seem to be something of an open question whether Clay could have produced the victory for Adams with which we are familiar or if the supporters of Jackson could have rallied in order to usher him into the White House four years ahead of schedule.

    Upon reflection, robbing Henry Clay of the power which he had accrued over his previous term as Speaker within the context of a contingent vote for president would rather seem to be the point of the 20^th Amendment to the Constitution. Not specifically, of course, but according to the spirit of the thing. The fundamental purpose of the 20^th Amendment is to prevent lame duck public servants – and specifically those who have recently been defeated at the polls – from exercising undue influence over the public policy decisions of the present moment. The rationale behind this, of course, is that elections represent a survey of the general public opinion. In the aftermath of an election, results dictate causality. If enough incumbents are defeated as to usher a new party into power, the kinds of policies thereafter to be pursued will doubtless undergo a change. And if the party in power manages to hold onto its position, then the policies already being pursued are more than likely to remain unchanged. In either case, the outcome of an election determines what happens immediately thereafter. This, in the modern sense of the term, is the essence of electoral democracy. In keeping with this logic, then, allowing policy decisions to be made according to the results of a previous election rather than the most recent election would seem to be definitionally undemocratic. This becomes particularly apparent in moments of unexpected crisis. If, immediately following an election, a national emergency should occur whose implications for the future are potentially quite severe, it would seem particularly undesirable to vest decision-making authority in a group of statesmen and public servants whom the people may just have roundly rejected at the polls. Elections, of course, don’t always result in massive turnover. Indeed, sometimes they change hardly anything at all. But since at other times they give expression to massive shifts in public opinion and public trust, good election policy must take full account of the possible as well as the practical. That is to say, the laws and regulations surrounding elections must ensure that lame ducks are able to effect significant and lasting policy change as infrequently as is practicable.

    In some ways, to be sure, this is easier said than done. National elections, ironically enough, often tend to be very local affairs, with candidates typically staying physically within the relevant electoral districts until a victor is finally declared. For a particularly large nation like the United States of America, this means – and had always meant – that there must be a kind of latency period between the final certification of an election and the swearing-in of the victors. Quite simply, people need time to get from their constituency offices to the seat of government, necessitating, in the interim, the continuation in office of the outgoing class of elected officials. But while this state of affairs may be functionally unavoidable, steps can be – and have been – taken in order to minimize the likelihood of certain undesirable outcomes. If, for example, national elections are held in November, thus placing them in close proximity to a relatively dense block of public holidays, it might perhaps make more sense to schedule the necessary swearing-in ceremonies as early as possible in January rather than in the first week of March. Some amount of delay is inevitable, as aforementioned, and it simply wouldn’t be reasonable to expect newly elected public officials to report for work in the midst of the Thanksgiving, Christmas, and New Year’s season. But there would seem to be no reason at all to extend the lame duck period almost into the early spring. Just so, if the lower house of the national legislature is going to maintain the responsibility of deciding the outcome of a disputed presidential election – a decision, it would seem fair to say, of potentially monumental significance – the summoning of said house should be so timed as to occur after its members were most recently sworn in.

    At the moment in time in which the House of Representatives was summoned to hold a contingent election in February of 1825, Henry Clay was indisputably its most powerful single member. Having served in the office of Speaker for a cumulative period of ten years – his most recent tenure having commenced in 1823 – he had a great many allies among his fellow Congressmen, wielded tremendous influence over the various committees on which they sat, and could, without much trouble, preemptively determine how any given vote was going to come off. In spite of all of this, however, Clay, like any public official, was still fundamentally beholden to the whims of the electorate. Not just the voters in his home state of Kentucky, of course, but the majority of House members whose support he needed if he was to maintain his position as that chamber’s presiding officer. With every biennial election, the composition of the House was refreshed. And just so, with every refreshment, a new vote for Speaker was required to be held. As the House is intended to represent the priorities and desires of the American people as accurately as possible, so the Speaker is supposed to embody the kind of leadership the House desires for itself as accurately as possible. Allowing Henry Clay, as Speaker, to preside over the 1825 contingent election for president accordingly represented a break with this otherwise very durable rationale.

    As of February 9^th, 1825, the most recent national election had been held only two months previously. There existed, therefore, effectively two parallel Congresses. The first, the sitting Congress, had been elected in November of 1822 and had chosen Henry Clay as its Speaker upon being sworn in on March 4^th, 1823. The second, of course, was the incoming Congress, whose members had been elected in November of 1824 and who had yet to sworn in or to choose a presiding officer. Presumably, the incoming Congress more accurately represented the intentions and desires of the American people as of February, 1825 than the body of legislators chosen some two years previously. And while it was entirely possible – in not, indeed, quite likely – that the newly sworn-in Congressmen would have opted to select Henry Clay once again as their presiding officer, this was not necessarily a guaranteed outcome. If, in keeping with the dictates of electoral democracy, the American people had just recently been polled so as to determine, as accurately as possible, their desired occupant of the office of President, why shouldn’t the incoming House – also recently elected – have been granted the attendant responsibility of settling an electoral impasse? Why, in essence, did the power of selection in the event of an inconclusive vote devolve upon a body whose credentials had arguably just expired? Henry Clay was indeed the choice of the representatives of the American people as of 1823, but why should this have entitled him to continue wielding as much power as he did several months after the election of a body of men who might have declined to elect him once given the choice? The plain fact of the 20^th Amendment would seem to answer all of these questions, albeit somewhat belatedly. Lame duck public officials should not be able to make such tremendously important decisions. And while crises cannot always be satisfactorily predicted, their worst effects can be mitigated with a little thoughtful planning.

The Purpose and Powers of the Senate, Part XXXXII: Every Man a Contender

    Notwithstanding the fact that, as a result of the Missouri Compromise (1820) a civil conflict between the Northern and Southern sections of the American republic had narrowly been avoided, its aftermath was not necessarily characterized by feelings of renewed conviviality. On the contrary, the events of the Missouri Crisis, the McCulloch v. Maryland (1819) ruling, and the Panic of 1819 had all conspired to permanently shatter the sense of national reconciliation that followed the successful conclusion of the War of 1812, leaving in their wake a nation increasingly and bitterly divided along sectional, socio-economic, and ideological lines. The Panic arguably prepared the ground for what followed by seeming to validate the suspicions of those Democratic-Republicans who had always doubted the wisdom of the Madison Administration in chartering a second national bank in 1816 while at the same time forcing that same institution’s backers into a kind of defensive crouch. Chief Justice Marshall’s opinion in McCulloch v. Maryland served to widen this initial cleavage further by drawing attention to the seeming divergence between the stated principles of Jeffersonian republicanism and the policies pursued by successive Democratic-Republican administrations. And then along came the Missouri Crisis, the events of which focused the concerns of those advocates of state sovereignty who felt that their party was drifting inexorably and disagreeably towards advocating the complete centralization of political power in the hands of the federal government on that most sensitive of topics for the Southern political classes, slavery. Having been primed to distrust certain of their Republican co-partisans by the latter’s avowed support for central banking their seeming abandonment of strict constructionism, that same group’s willingness to drag slavery into the spotlight of the national political sphere arguably destroyed what little trust remained among the various wings of the nation’s dominant political party. From 1820 onwards, therefore, while the Democratic-Republicans would remain an integral political organization and the only party on the national stage with any real power or influence, they steadily began to fragment into mutually antagonistic ideological sects.

    The Election of 1824, of course, finally exploded any remaining illusion of unity by pitting four members of the Democratic-Republican Party against one another in a bitter contest that was as much about personality and sectional identity as it was about public policy. The outset of the race was relatively calm, to be sure. President Monroe, though still quite popular, declined to run for a third term. This decision shocked no one, for it was entirely in keeping with the precedent set in 1796 by a retiring George Washington. But while Vice-President Daniel Tompkins (1774-1825) might otherwise have been the natural choice of successor, shaky personal finances and poor health exacerbated by alcoholism quickly ruled him out as a viable candidate. In accordance with contemporary custom, the choice then fell to the Republican caucus in Congress. This was, and had long been, a simple matter of expediency, the congressional caucus of a party being the only nationwide gathering of its members who could be depended on to meet regularly. Not every member of the Democratic-Republican Party particularly favored the caucus as an instrument of nomination, however. The 1808 meeting had been a particularly fractious one, with a contest between several party luminaries resulting in Madison’s formal nomination amid bitter whispers from runners-up George Clinton (1739-1812) and James Monroe that the system itself was illegitimate. 1816 witnessed another contested caucus, this time between Secretary of State James Monroe and Secretary of War William Crawford. Monroe emerged victorious, of course, and went on to win the Election of 1816. But rather than gripe, as his predecessors had done, about the illegitimacy of the method, runner-up Crawford opted to bide his time, shore up his connections within the party, and wait for another chance to make his play for the nomination.

    The caucus meeting in 1820 was clearly not the moment. Soon after meeting, its members opted to adjourn, none of them being in a position to challenge the exceptionally popular Monroe. But when the next meeting occurred in 1824, the patient, calculating Georgian finally sprang into action. Having served in the Senate, as an ambassador, and in two cabinet posts in two different administrations, Crawford undeniably had the qualifications and the public profile to run for president. Monroe had stepped down without endorsing a preferred successor; Tompkins had effectively disqualified himself; the game, to all appearances, was Crawford’s to lose. But while he did accordingly secure his party’s nomination for president – and while, under slightly different circumstances, this would have all but guaranteed his election – Crawford’s path to the heights of power very soon became littered with obstacles. The 1824 caucus meeting, as it happened, was more sparsely attended than had previously been the case, Evidently, the criticisms of men like George Clinton and James Monroe that the practice was inherently undemocratic had coalesced with the sectional and ideological suspicions raised by the repeated controversies of 1819 to produce a climate within the Democratic-Republican Party of intense mutual distrust. In consequence, while those relatively few Republicans who attended the 1824 nominating caucus did indeed select Crawford as their party’s official nominee, various state legislatures at the same time opted to nominate candidates of their own.

    John Quincy Adams, in many ways, had always been Crawford’s principal rival for the Democratic-Republican nomination. As a legislator and a diplomat of long standing and experience, he was similarly qualified as was the ambitious Georgian. And as Monroe’s Secretary of State – an office from which Madison and Monroe had both run for and won the presidency – he was in perhaps the best possible position to declare himself the outgoing executive’s natural successor. It was quite understandable, then, given both his credentials and the fact that he was easily the most popular and well-known Republican statesman from the North, that the New England state legislatures would opt to nominate him for President. Much the same could have been said of the Kentuckian Henry Clay, a man of lengthy service in Congress – including three stints as Speaker of the House – who was as popular in the West as Adams was in the North. Not only that, but as the longtime leader of the Democratic-Republican caucus in the House, Clay had a record of policy achievements to point to and an independent powerbase from which to draw, both of which augured well for his performance in the event of his nomination. Bearing all of this in mind, it accordingly came as no surprise that his native Kentucky put Clay’s name forward as its preferred nominee and that Clay happily embraced the prospect of running for president.

    The candidate that hardly anyone took seriously, of course, was the one who ultimately proved to be the most formidable. Though Andrew Jackson had previously served in both houses of Congress and was, in a very real way, one of the founders of the state of Tennessee, his public profile was mainly centered upon his long and illustrious military service. During the early stages of the War of 1812, he had led American militia forces and their indigenous allies in the Mississippi Territory against a confederation of Creeks known as the Red Sticks, the result of which, the Treaty of Fort Jackson (1814), ceded over twenty million acres of land in what is now Alabama and Georgia to the United States of America. Shortly thereafter, having been granted a commission in the U.S. Army and made aware of British plans to invade Louisiana at New Orleans, Jackson proceeded to the city and organized an ad hoc but formidable defense – consisting, among other things, of unseasoned troops, local militia volunteers, Native Americans, slaves, and a group of pardoned privateers led by French smuggler Jean Lafitte (1780-1823) – whereupon he successfully fought off a numerically superior British force. Though the battle in question was strategically meaningless – the War of 1812 having ended, via treaty, some two weeks prior – the unexpected victory in the wake of a humiliating British attack on the city of Washington greatly lifted the nation’s spirits and made Jackson a household name. Then, several years later in the midst of a simmering conflict between communities in far southern Georgia and a confederation of native tribes and formerly enslaved peoples known as the Seminole, Jackson proceeded on an invasion of his own into British-controlled Florida. Though not specifically authorized to pursue his enemies into Florida itself – and having accordingly given rise to something of an international incident – Jackson nevertheless received the backing of President Monroe, whose Secretary of State was thereafter able to use the incident as a pretext to demand the sale of Florida by the British to the United States.

    Bearing all of these events in mind, Jackson could reasonably have been described – circa 1824 – as the single most well-known and publicly revered military officer of his generation. Not only that, but he was also arguably among the most popular public figures in the whole of the United States, having proven himself on numerous occasions to be the equal – if not, indeed, the superior – of the two great spiritual nemeses of the 19^th century United States: the British Empire and the continent’s native inhabitants. And while he was not, in terms of character or inclination, a statesman by nature, his public profile easily rivalled those of the era’s most successful politicians. When he determined, therefore, after a lengthy convalescence following a physical collapse in 1822, to once more enter the realm of politics, it was really only a matter of time before his presence began to warp some of the nation’s otherwise stable political assumptions. Initially, Jackson’s motivations were more vindictive than anything. An ardent critic of the 2^nd Bank of the United States, he viewed its public supporters as beneficiaries of corruption and sought to stymie their political careers if he could. William H. Crawford was first among his targets, both because, as the Secretary of the Treasury, he was foremost among the defenders of the utility of the 2^nd BUS, and also because he had been among Jackson’s most vocal critics in the Monroe cabinet during the former’s aforementioned escapades in Florida. In consequence – and again, mainly out of a sense of vitriol – Jackson sought to deny Crawford the support of the former’s home state by allowing the Tennessee General Assembly to nominate him for president and then grant him their electoral votes. Jackson’s fellow Tennesseans were evidently as eager as he was to punish Crawford and were willing to sacrifice their electoral votes in the process. But then, as word of the candidacy of the Hero of New Orleans spread, something strange began to happen. Legislatures in other states began to come out for Jackson as well.                     

    Without necessarily meaning to, Jackson had managed to leverage his military reputation and his public criticisms of the 2^nd BUS into an eminently viable pathway to the office of president. Though having previously served in both the House and the Senate, his prior political career was brief and unspectacular, easily overshadowed by subsequent military achievements. This fact – that he could convincingly be branded as an outsider with few connections to the contemporary American political class – along with his aforementioned public stance against corruption and central banking, combined to make Andrew Jackson the “man of the people” candidate which the ongoing race for president was otherwise lacking. As a testament to his resultant popularity, the legislature of Pennsylvania – then the most populous state in the union – notably chose to respond to the naming of Crawford as the Republican caucus’s choice for the nomination by branding the gathering “undemocratic” and naming Jackson as its preferred contender. Thus possessed of the support of states in both the North and the South, Jackson immediately became the single candidate to beat. No one could come anywhere close to being as nationally beloved, and no one could claim the backing of several regions of the country at once. The race was not over, of course. With many states splitting their electoral votes among the primary vote-getters via pre-drawn districts, there was still a chance that virtually any of the primary contenders could scrape up enough support to claim a win. With four men in the game, however, and each of them particularly popular in different regions of the country, the margin of victory was bound to be slim no matter who came out on top.

    Jackson, in the end, did receive the most votes. Both in terms of the Electoral College – which determines the winner of the race – and the real number of ballots cast – which does not – the Hero of New Orleans enjoyed more support than any of his contemporaries. And in a contest defined primarily by popularity – questions of policy taking a distinct backseat in 1824 to campaign biographies, popular songs, slanderous political cartoons, and editorials in the partisan newspapers – this was not particularly shocking. Jackson, as noted previously, was both a military hero and a self-appointed crusader for the common man, both of which personas appealed to the era’s increasingly aggressive egalitarian impulses. What did come as a surprise, however – to all but the savviest political operators – was that in spite of his first-place finish, Jackson still hadn’t actually won. He did, as aforementioned, win more electoral votes than his three opponents, amassing ninety-nine in total. John Quincy Adams came in a relatively close second with eighty-four votes, Crawford a somewhat more distant third with forty-one votes, and Clay in a disappointing fourth with only thirty-seven votes. Jackson, plainly, was more popular than any of his opponents. Indeed, the whole number of ballots cast in his name was nearly the equivalent of the those won by Adams and Crawford combined. But as of 1824, one hundred and thirty-one electoral votes were required to claim victory in the race for president. The result, therefore, was an impasse. As in 1800, the final choice would fall to the House.