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The first was President Obama's attempt to get the National Labor Relations Board up and running again by making three so-called recess appointments to the board a year ago. The other day a panel of three federal appellate judges in Washington, DC, put the kibosh on that one, ruling that the appointments were "constitutionally invalid."
The other was an ingenious attempt by Republicans to refine the process by which presidents are elected. The electoral college system, with its state-by-state winner-take-all way of allocating electoral votes, has come in for plenty of criticism. The Republican idea is to make the electoral college vote better reflect the national vote—by allocating electoral votes according to who wins each congressional district. Of course there's no way the GOP can impose this new system across the nation, but it proposes to make a gallant start by introducing the reform in blue states that at the moment enjoy Republican-controlled legislatures. States like Florida, Virginia, Pennsylvania, Ohio, and Wisconsin.
"There are politicians who, having failed to get all they want by following the established rules, endeavor to change the rules for their own benefit," the Tribune sniffed, in a lazy exercise in one-size-fits-all scorn. Huntley did no better, accusing both the president and the Republicans of "exercises of over-reach in conflict with the founding principles of our democratic republic."
But when we look more closely at the two matters, we see they have almost nothing in common.
The Senate wasn't even in recess. It was in "pro-forma session," meaning a senator or two would show up every few days and clear his throat. And the Republicans had a perfectly good reason for not allowing a recess: they had a hunch Obama would pull a fast one and appoint Richard Cordray to head the new Consumer Financial Protection Bureau. Cordray wasn't their kind of guy. But President Obama appointed Cordray anyway, along with the three new members of the NLRB, which wasn't doing anything because it didn't have a quorum.
Enough is enough. The only reason recess appointments were allowed in the first place is that transportation was grueling back in the time of the founding fathers, and there were times when a presidential appointment couldn't wait for the Senate to convene. As so often happens, the process got abused. Ronald Reagan made 243 recess appointments. George W. Bush made 171, and during the George W. era, Senate Democrats came up with the concept of the pro forma session in order to keep Bush in check. After only one term, Obama is already up to 32 recess appointments! To make sure he got his own way, he decided to challenge the pro forma concept—his argument being that since we've got these federal agencies he has a right to appoint someone to them so they function. But those Washington judges didn't let him get away with it.
Compare his cynical ploy with the Republicans' bid to bring the electoral college into the 21st century. The Republican idea is not without its flaws. Had it been put into practice in time for last year's election, Mitt Romney might have won it. Had it been in practice across the nation, Romney would certainly have won, as the Republicans, thanks to gerrymandering, retained control of the House despite trailing the Democrats in the overall congressional vote. As nationally, Obama received about 3.5 million more votes than Romney, a Romney victory would inevitably have led to some carping about the will of the majority being disrespected.
Yet an election in which all the red state electoral votes go to the Republican and the blue state electoral votes are divvied up between the Republican and the Democrat will relieve both candidates of the burden of trying to patch together a winning coalition—the Republican because it's unnecessary, the Democrat because it's impossible. Out from under that burden, each candidate will be free to speak his conscience, and the Republican will be lofted into office on a tide of high-minded dialogue. What's more, the Republican reform will remind voters that we live in a Republic, not a direct democracy, and that the Founding Founders created the Electoral College in the first place because the public is an unruly mob whose passions are too volatile and manipulable to be trusted. That is to say, one secondary consequence of the Republican reform is that liberal pacifist voters will look on their Second Amendment guarantees with more favor, and their attempts at insurrection will be promptly and brutally put down.
A lesson in first principles is never to be regretted. Yet in the view of Huntley and the Tribune, the Republicans' promising if imperfect initiative is no better than Obama's power grab. The failure to make distinctions disappoints.