LITTLE ROCK — W ith Mitt Romney, the presumptive Republican presidential nominee, well into the process of selecting a running mate, and pundits breathlessly speculating on how this or that candidate might help or hurt the ticket, it’s a good moment to pause and ask: Why do we have a vice president in the first place?
The office, after all, is fairly useless, and historians and law professors have long made strong cases for getting rid of it. But consider the prospect of reforming it instead. Perhaps we can change the constitutional status of the vice president in ways that could improve our politics.
The vice president presides over the Senate and can cast a vote to break a tie. Other than that, it’s hard to explain exactly what the vice presidency is for, except for the unseemly death watch implicit in the rules of presidential succession. John Adams, the first to hold the post, called it “the most insignificant office that ever the invention of man contrived or his imagination conceived.” John Nance Garner, who gave up his role as speaker of the House to become Franklin Roosevelt’s first vice president, famously observed that the office “isn’t worth a bucket of warm spit”—although “spit” is probably not what he actually said.
As legal scholars have pointed out,
the vice presidency is an office so
poorly thought out that should a
vice president ever be impeached, the presiding officer at the trial will be . . . the vice president! Yet this glaring error may not even be the biggest problem with the original design for the office. The vice president also presides over the counting of the electoral votes—a role Thomas Jefferson seems to have exploited to his own benefit.
We have come a long way. Our modern, activist vision of the vice presidency is ascribed variously to President Harry Truman (who insisted that the National Security Act of 1947 make the vice president a member of the National Security Council) and President Jimmy Carter, who relied heavily on Vice President Walter Mondale and, for the first time, gave the vice president an office in the West Wing. As Joel K. Goldstein has pointed out, this modern vice presidency is attractive to the politically ambitious because of the ways it enhances the reputation of its occupant. (About one in three U.S. presidents were formerly vice presidents.)
Of course, if one accepts the Framers’ vision, in which the vice president’s principal duties involve the Senate, then he is an official of the legislative not the executive branch, a possibility that has led to the mischievous but not entirely unpersuasive suggestion that it is a violation of the separation of powers for the vice president to perform executive duties delegated by the president. (Dick Cheney, while serving as George W. Bush’s vice president, created a furor by trying to avoid certain national security regulations by asserting that he was indeed a member of the legislative branch.)
All of this matters only because we have a vice president. It isn’t clear that we need one. After all, Congress is empowered under the Constitution to provide for presidential succession, meaning that in the absence of a vice president, the House and Senate would specify who takes over should the president die. (Indeed, such statutes already exist, explaining what happens should both the president die or resign and the vice president be unavailable to succeed him.)
On the other hand, should we decide that we like having a vice president who is deeply involved in policy, let’s at least improve the manner of his selection.
Several legal scholars have proposed over the years that we elect the vice president separately—that is, that voters be able to cast a ballot for a president and a separate ballot for a vice president. This is an intriguing proposition that certainly would enhance the attention we pay to the office, even though it might have led to such anomalies as a Barack Obama-Sarah Palin or a Bush-Joseph Lieberman administration.
Another possibility, one I happen to like, is that we repeal, in pertinent part, the 12th Amendment, adopted in response to the contested election of 1800. Before the amendment, to oversimplify a bit, each member of the Electoral College cast two votes, and the person who finished second became vice president. Thus in 1796, Adams received the most votes and became president. His opponent, Thomas Jefferson, finished second in the balloting, because the Federalist electors couldn’t agree on a vice president. Thus Jefferson became vice president.
The crisis arose four years later when Jefferson and his running mate, Aaron Burr, tied in the Electoral College, and Burr then refused to yield, throwing the decision into the House of Representatives. Alarmed by this result, Congress swiftly proposed, and the states immediately adopted, the 12th Amendment, providing that the electors would vote separately for president and vice president. This system is still in use today.
A better idea is to dump the model that has led to all the confusion. Let’s give each elector one vote, not two, and return to the rule that the person who receives the second-highest number of votes becomes vice president. Nobody would run for vice president; parties would nominate only a presidential candidate. Under this system, Obama would still be president, but John McCain would be vice president.
The advantages would be considerable. The losing party from the general election would have representation of a sort in the executive branch. It would not be wise for the president simply to shunt his vice president aside, because the vice president would retain the power to break ties in the Senate. In our closely divided era, this power is considerable, and the president would doubtless want to keep his vice president happy.
Similarly, it would be in the interest of the vice president to avoid partisanship and obstruction, lest he lose all possibility of influence. This commonality of interests might mean that each party gains a built-in emissary to the other, someone able to carry messages and negotiate in a climate so polarized that communication between the parties is enormously difficult. A wise president would include his vice president in his councils of policy (if not of politics), and, by statute, the vice president would remain a member of the National Security Council.
Thus the administration might be able to avoid the problem that too often plagues the party in the White House: deliberating in a bubble, in which every voice is an echo of what everyone in the room already believes.
In Washington these days, partisan rigidity and the resulting gridlock make our politics embarrassingly bad and our governance painful to watch. Transforming the vice presidency into an office whose institutionalized function is to bring the opposition inside might help to break the logjam.
Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of The Violence of Peace: America’s Wars in the Age of Obama.
Perspective, Pages 75 on 07/29/2012