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Monday, June 20, 2016

Veep, S5E9

We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.

For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.

The show went with Ericsson's plan, hinted at the end of last season--the final House vote is O'Brien 25, Meyer 22, 3 abstentions (Missouri, Vermont, and a third state we never saw). The Speaker adjourns the House. And the implication is that the Senate will elect James as VP and he will become President next week, because "a President shall not have been chosen."

Selina made one Hail Mary, trying to get Jonah to switch New Hampshire's vote to O'Brien. If O'Brien won, she could run against him in four years, but if James won, she would have to wait eight years, at which point she would be too old. Unfortunately, Jonah did not get the word in time (he was late for the vote because he spent the night with a high school senior/congressional groupie, then could not find the House chamber). After the session ends, he tries to change his vote, announcing "The Gentleman from New Hampshire puts forth on the floor a do-over."

So how did the show do on the Constitution and the electoral process? Not well--yes, I know it is a TV show and a great one; it just does not pass the Con Law exam).

• They got the dates wrong. The House election is taking place on January 3d and we see a flashback to Jonah's swearing in the day before (right before hooking up with the groupie). But under § 2 of the Twentieth Amendment, the new House convenes on January 3. And under 3 U.S.C. § 15, the House does not open and count the Electoral College votes until 1 p.m. on January 6. And the House cannot hold an election until it actually counts the electoral votes and determines that there is, in fact, a tie (what if there had been that faithless elector?).

• I am trying to figure out why three was the magic number of abstentions for denying a majority. There does not seem anything significant about that number. Also, no states had evenly divided delegations, which seems unlikely as a practical matter, given the number of states with even-numbered House caucuses (including New Hampshire, more on that below).

• On that point: I cannot find the answer to this question and do not feel like researching it at midnight: Are abstentions treated the same as divided caucuses? Or is divided caucus a vote for neither candidate, while an abstention is a non-vote? And does the Twelfth Amendment require a majority of all states or all states that case votes, with abstentions being non-votes that reduce the denominator? History is ambiguous. In 1800, all the representatives in Delaware (1) and South Carolina (4) abstained on the 36th ballot. Jefferson already had won 10 states, so he had the election anyway. But it is not clear whether his majority was out of 16 (total states) or 14 (states casting votes, since Delaware and South Carolina abstained because each of their members abstained)? Were the abstentions from those two states the same as, say, Maryland's earlier non-committal vote when the caucus split between Burr and Jefferson?

In the Veep-iverse, this matters for two reasons. If they are the same, James did not have to necessarily plot to get states to abstain, he could have just counted the votes and seen that there were a sufficient number of evenly divided even-numbered caucuses. If they are different, then O'Brien won the election, because the three abstention reduce the denominator to 47 (states voting), so O'Brien's 25 votes constituted a majority of that.

[Update: A participant in the Con Law Prof listserv offers the right way of looking at this: If every member of the caucus abstains, then the vote from the state is 0-0-X; this is an evenly divided caucus, just as much as a 1-1-1 caucus would be. So there are no non-votes, which means the denominator must be 50. But then we go back to James not needing states to abstain, but simply be divided, whether through true division or through strategic abstentions by individual members in a state that create a tie (we thought that is what he was doing two weeks ago in getting the seventh member of Colorado's caucus to abstain, producing a 3-3-1 division). So the show seems to err again, confusing abstentions by states with abstention by individual members that tilt the balance one way or another.]

• The House adjourns with no announcement or plans for another vote. Of course, in 1801 the House immediately dove into additional votes over the course of that day and the following days and weeks. Catherine's movie catches a snippet of a conversation in which Selina and one of her staffers mention that James likely got the Speaker to agree not to hold additional votes once the first produced no winner. But would the members of the House, especially those who support O'Brien (and thus are politically opposed to James), tolerate that? Would the public? Yes, James is popular and competent. But it seems too pat.

• Jonah, of course, makes a fool of himself. But the problem of placing him in New Hampshire arose again. New Hampshire has two representatives, so Jonah does not exclusively control the caucus vote. New Hampshire only voted for Meyer because the other New Hampshire representative also voted for Meyer.  So, again, Jonah was not necessary. More importantly, Jonah could not unilaterally switch the state's vote; switching his vote, assuming his colleague did not switch (and Jonah never had a chance to talk to him), would only render New Hampshire a split caucus going for no one, denying both candidates the possibility of a majority (unless abstentions do not count as votes).

• The show got its numbers wrong, at least for purposes of season-long consistency. The idea was that Jonah would cast the vote that would give Selina New Hampshire and the presidency. Put aside that NH could not play that role. It only works if NH would be the 26th state for Meyer. But the final vote with NH going for Selina, was 25-22-3. Even if all three abstentions would have been Meyer states, that still would not produce a victory for her.

• The show is setting up a Tom James presidency, continuing to ignore that James is not becoming President, he is only becoming acting President. Put differently, he does not hold the office of President, he only exercises those powers. The 22d Amendment expressly draws that distinction, as does the presidential succession statute. Even if it lasts four years, he still only acts as president during a period in which no President has been chosen. Neither the Constitution nor § 19 places a limit on the period in which someone can act as president or a limit on how long the period of non-qualification can last.

What the Speaker is allowing to happen is inconsistent with the purpose of the Twelfth Amendment. The amendment was motivated, in part, by the risk of "inversion," in which a party's preferred candidate for Vice President would win the House election and become President, against the preferences of the party and perhaps the public. The Federalists who voted for Burr did so because they hated Jefferson, but also because they knew it would mess with the Democratic-Republican plans to have Jefferson as President and Burr as VP. The Speaker is allowing the very inversion the amendment was designed to prohibit. Again, because James is so popular and so competent, the public in the Veep-iverse is okay with it, as he will get things done. Thinking about it, however, it starts to sound like a coup--the VP is conspiring with the Speaker to prevent a vote for the presidency, allowing him to exercise those powers for an entire four-year term. I think there would be strong opposition. And I also would expect both Meyer and O'Brien to lobby House members from their respective parties to force a vote--perhaps on bipartisan threat of removing the Speaker if he does not continue holding elections. Again, too pat.

Since the show is coming back for another season, it must be setting up what it hinted at in last season's finale--James nominating Meyer as his vice president, so next season she will be back where she started--doing nothing and waiting for the President to call.  Too bad that is a constitutional impossibility.

• And now for the big mistake (ed: Maybe). Selina explains to Amy her plan to have Jonah switch so she could run against O'Brien in four years, whereas if James is made (acting) President, he would serve for eight years. Amy corrects her--"Twelve, ma'am. Tom's first term won't count because technically he'll be an elevated Vice President." My initial reaction was this is unforgivably wrong and I cannot believe they missed that badly, even if only as a piece of exposition. The Twenty-second Amendment makes clear that someone who has acted as president for more than two years of someone else's term can only be elected President once. Since James will act as president  for four years (we presume, because the Speaker is blocking a vote), he could be elected once for four more years, but not a second time.

But then someone pointed out that the 22d Amendment says "held the office of President, or acted as President, for more than two years of a term to which some other person was elected President." (emphasis mine). The argument is that James is not acting in a term to which someone else was elected; he is acting because no one was elected. Textually that seems right. And it cannot be excused as drafting for an unforeseen situation, since the 12th and 20th Amendments both contemplated a VP acting as president for some period of time if the House failed to elect a President. So if they intended to include that in the 10-year limit, the drafters of the 22d should have accounted for that. Amy's exposition ("he'll be an elevated Vice President") is still wrong, but the substance is right.

But this reading is so inconsistent with the purpose of all three amendments related to a House election and presidential succession that it cannot be right. The 22d was intended to limit the number of years anyone can exercise executive power. And it would incentivize the very manipulations we see here, both in the Electoral College and in any House contingency election. And those incentives would not be limited to the VP-elect. If the House cannot pick a President and the Senate cannot pick a VP, the Speaker would act as president under § 19(a). So imagine the plots that could be hatched.

• The process the show followed for the House election is interesting. One member from each state, in alphabetical order, cast the entire state's vote publicly, presumably with individual votes having been taken in secret and within each caucus. In both 1800 and 1824, however, individual votes were recorded and each state's ballot was written and sealed. The procedures for the House vote are left to the House and changeable for each election, so nothing is set in stone. Lawrence Tribe wrote a nice essay on the process prior to the 1980 election, when it seemed possible that independent John Anderson might win some electoral votes, perhaps enough to deprive Reagan or Carter of a majority and throw the election into the House (spoiler: He didn't).

Posted by Howard Wasserman on June 20, 2016 at 08:19 AM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink


"I am trying to figure out why three was the magic number of abstentions for denying a majority. There does not seem anything significant about that number"

My conclusion would be that they needed 26 to get a majority and the final vote was 25-22-3. Now, they seemed to have got the dynamics wrong, but if NH went the other way, O'Brien would have received 26. And, in the end, that is what Meyer wants. It didn't need to be three, it could have been more, except that this Jonah the difference. Plus, maybe that "oh so close" pain for Meyer. OTOH, hard to see how Selina Meyer ever thought beforehand how she would win unless she was hoping for another vote somehow.

I was ready to jump on the 12 years bit and agree it violated the spirit but then someone flagged for me an apparent loophole. Like the V.P. potentially (I think the old rule of not judging your own case could be implied here but still) preside over his/her own impeachment, however, it's possible it was a mistake in wording. There was a whole book on that sort of thing after all.

One question -- can an "acting" President (who is still veep, right?) appoint a veep under the 25A? Also, since there is a new season, I can see various dynamics happening, someone to get James out of the way eventually.

Posted by: Joe | Jun 20, 2016 9:29:05 AM

The general consensus is that an acting president cannot appoint a VP. If the acting president is the VP, there would be no vacancy to fill, since he does not surrender the vice presidency while he acts as president. As a constitutional matter, James stands in the same position as Papa Bush when Reagan had surgery to remove polyps. It will last longer, but is no different in kind. That is why I jumped at the end of last season when James asked Meyer if she wanted to be his veep.

But if the three abstentions would have gone for Meyer, we would have had a tie, even with NH going for Meyer. The narrative that set up for the last four episodes never played out.

Posted by: Howard Wasserman | Jun 20, 2016 9:39:55 AM

Thinking it over, without more, yes, don't see why three was the magic number.

Posted by: Joe | Jun 20, 2016 9:55:18 AM

1. The Jonah issue is easy. Just assume that, in the Veep universe, New Hampshire has an odd number of electors.

Several scenes in the show are consistent with a theory that, in its world, N.H. has only one at-large congressman (e.g., the geographic array of towns mentioned, the fact that no one refers to another N.H. congressman, the fact that Jonah & Co. consistently refer to "New Hampshire" as opposed to the "New Hampshire First").

2. I think three abstentions was a storytelling device. Otherwise, the number would change as different states voted, and it would be too confusing for the audience to follow.

Posted by: PL | Oct 13, 2016 2:09:59 PM

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