By Cristina Cornejo
The United States uses an indirect voting process called the Electoral College to elect the president. In this system, which is mandated by the Constitution, each state is assigned a number of “electors” based on the number of representatives the state has in both Houses of Congress; the voters in each state do not actually vote directly for a presidential candidate, but rather for a slate of electors, appointed by the state, who have pledged to vote for that candidate when the Electoral College convenes to select the president. (This odd system is why there have been instances, including in the most recent U.S. presidential election in 2016, when the winner of the popular vote does not become the president.) But suppose an elector who has pledged to support one candidate decides to switch her vote? This is not purely hypothetical: Throughout American history, 157 electors have defected from their pledge. Some states seek to prevent this through laws under which such “faithless electors” can be subject to civil penalties, including replacement. Electors from the 2016 Presidential Election have brought a case in the Supreme Court challenging these “faithless elector” laws as unconstitutional.
This challenge is obviously important for U.S. presidential elections—but (many readers might be wondering) what does it have to do with corruption? It turns out that, as U.S. anticorruption advocates have emphasized, if the Supreme Court rules that states cannot compel electors to vote as they have pledged, this could leave U.S presidential elections vulnerable to corruption. If electors cannot be legally required to vote for the candidate who won the popular vote in their state, then electors can be bribed—or, if not outright bribed, then subject to other forms of improper influence.
Part of the problem is that U.S. campaign finance laws and government ethics rules, as currently written, do not cover electors. Likewise, U.S. anti-bribery laws prohibit bribes to public officials and candidates for public office, but electors don’t clearly fall into either of those categories. The most relevant federal criminal statute is likely the prohibition on vote-buying and vote-selling in elections, codified at 18 U.S.C. §597. That section prohibits “mak[ing] or offer[ing] to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate.” But this statute has been construed narrowly to only apply to instances of a quid pro quo, which leaves the door open for private interests to corruptly influence electors so long as they avoid any explicit bargain. Moreover—and even more troubling—the U.S. President has virtually unlimited pardon powers, so if a candidate’s surrogates bribed enough electors to win the presidency, in blatant violation of §597, the President could simply pardon both the agents who paid the bribes and the electors who took them. These two problems—the difficulty of proving a quid pro quo and the President’s pardon power—also explain why the problem couldn’t be fixed by expanding the scope of other federal campaign finance, government ethics, and anti-bribery rules to cover electors as well as public officials and political candidates.
So, should the Supreme Court decide that electors cannot be penalized by the states for defecting from their pledged votes, the U.S. presidential election might be up for sale. And, for the reasons sketched above, this problem couldn’t be easily fixed simply by expanding existing federal anticorruption laws to apply to electors.
Should the Supreme Court side with the “faithless electors,” what could be done to protect the integrity of U.S. presidential elections (short of abolishing or significantly reforming the electoral college—steps that would require a constitutional amendment and so are not likely any time soon)? There are three possibilities:
- The most direct way to tackle this type of corruption could be to have states expand their own existing laws against vote-buying/vote-selling to explicitly apply to electors in the Electoral College. All 50 states currently outlaw vote-buying in some form, although the language of these statutes typically implies bribing ordinary people to vote in regular elections. Updating these statutes to explicitly include bribing presidential electors could fill the gap in the federal anticorruption laws described above. First of all, the Presidential pardon power only extends to federal crimes. In addition, state laws could be drafted or interpreted more broadly to cover behavior beyond an explicit quid pro quo. Existing sanctions would likely have to be increased in order to offset the large bribes that electors may be offered in the context of a presidential election. But problems of enforcement might still exist as corrupt actors could conceal their bribes by paying electors well after the electors cast their votes. Another possible barrier may arise if the U.S. Supreme Court decides to categorize electors as candidates for public office in their own right; if the Court so concludes, then current U.S. free speech doctrine might impose limits on the ability of states to prohibit certain forms of spending meant to influence electors’ votes.
- Another possibility might be to make changes to the elector appointment process to limit the chances that electors are subject to improper influence. First, states could shorten the length of an elector’s appointment and appoint the electors the day before, or even hours before, the Electoral College vote. Second, states could require that electors keep their identity a secret. Together, these two changes could limit the possibilities for members of presidential campaigns or outside actors to corruptly influence an elector’s vote, because they will not know whom to bribe and will have little time to figure this out. Electors could also be subject to punishments if they reveal their identities without necessarily punishing them for switching their vote. Again, any criminal or civil liability would have to be severe enough to offset any potential gains that an elector may receive from selling their vote.
- An alternative option might be to go in the complete opposite direction and increase transparency and democratic accountability by appointing as electors only incumbent state elected officials who are members of the same political party of the presidential candidate to whom the electors have pledged their vote. This solution is based on the idea that an incumbent state elected official would have more to lose than a private citizen if it were revealed that she refused to vote for her party’s presidential candidate. Such a faithless elector would likely face condemnation by her own party, and could also he held accountable by voters in the next election. That said, this wouldn’t work if an elector is offered a sufficiently large bribe that she’s willing to risk losing her office.
The options described above might make it more logistically difficult and expensive for corrupt actors to influence electors. However, given the stakes of the presidential election, we should prepare for corrupt forces with deep pockets to exploit any and all loopholes. For these reasons, our best hope is that the Supreme Court decides to maintain the status quo, allowing states to sanction and replace electors who disregard the will of the people in their jurisdiction. Should the court make a different decision, anticorruption advocates in the U.S. should demand swift and comprehensive action from their state elected leaders.
This blog was originally published on GAB | The Global Anticorruption Blog Law, Social Science, and Policy and was republished with permission.