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Tuesday, June 16, 2015

Veep does the Constitution

Veep is a hilarious show, described by one former Obama adviser as the most accurate depiction of Washington and definitely the most hilariously profane (reflecting the sensibilities of creator, and departing showrunner, Armando Iannucci). The season finale, which aired on Sunday, takes place on Election Night and ends on a constitutional cliffhanger related to presidential elections and presidential succession, a common theme for political TV shows.

More (with spoilers) after the jump.

The election ends in a 269-269 Electoral College tie,* sending everyone scrambling to figure out, and discuss in expository dialogue, what happens; it became a  mini Con Law lecture, although there did not seem to be a practicing lawyer in the room. The show explains that the House selects the President, voting by state delegation, and the Senate selects the Vice President, voting as a body of the whole; they get that part right. But then the narrative reveals uncertainty over numerous close House races** and over what the make-up of the House will be, with everyone raising the possibility of a tie in the House. What happens then? The show posits that the Vice President becomes President. This sets-up the dramatic twist that Meyer's running mate, Tom James (who is seemingly more popular and more competent than Meyer***), will "backdoor" his way into the top spot; one of the last beats in the episode has James asking Meyer to serve as his VP.

[*] This allows for a nice riff about the stupidity of having an even number of electors--blame the Twenty-third Amendment. The tie also results from a bizarre electoral map for current politics. Selina Meyer, whose party is unnamed but who seems to be a Democrat, wins Virginia, Pennsylvania, Florida, and Wisconsin, but loses Minnesota and Ohio. 

[**] Also unlikely in current politics, given gerrymandering practices creating vast numbers of "safe" seats.

[***] And ambitious. Earlier in the episode, James insists that, in addition to serving as VP, he wants to be Secretary of the Treasury. I do not believe there is a constitutional bar to the VP holding a cabinet position, although I cannot see the Senate going for it.

That last part seems both constitutionally wrong and factually unlikely, at least as presented. So the mini Con Law lecture did not quite get it right.

First, whatever the uncertainty of the makeup of the next House,the possibility that twenty-five state delegations will be controlled by one party and twenty-five controlled by the other seems like an implausible logical leap. It would be a fun narrative twist to actually show happening; it just seemed a strange place for Meyer's aides to go in predicting right then. Second, and related, why does nobody consider the possibility of a tie in the Senate (historically, a more likely occurrence) or even of James losing in the Senate (if the opposing party has a majority). It is not discussed, even to explain away that the Senate make-up is not unknown and that the Meyer/James party will control the Senate.

Third, under the Twelfth Amendment, if the House has not yet chosen a President by the appointed date (as further amended, January 20), "the Vice President shall act as President, as in the case of the death or other constitutional disability of the President." The Twentieth Amendment further provides that "[i]f a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified." In other words, contrary to what the show says, James would be Acting President, not President; he would not enjoy an inauguration, he would not be listed in the line of Presidents, and he certainly would not be able to appoint a Vice President.

He also would act as President only until "a President shall have qualified," that is, until the House is finally able to resolve any stalemate and pick the President. This presents the fourth problem with the show's constitutional narrative--the assumption that there would be one House vote, it would end in a tie, and that would be the end of the discussion. But the House may (and will) take multiple votes and engage in a lot of politics to resolve the question--it took 36 ballots and political pressure from Alexander Hamilton for the House to elect Jefferson over Burr in 1801. So even if the initial vote were tied (again, unlikely), the House likely would not stop at a tie and leave an elected VP to serve four years as acting President; the House would feel public and political pressure to continue negotiating and holding votes until someone is elected President from between the two**** top-of-the-ticket candidates for whom the public had just cast millions of votes.

[****] The Twelfth Amendment provides that the House may consider up to the top three Electoral College vote-getters, unnecessary here, since no third-party candidate received College votes. The show might have tried to really go all the way on E/C confusion by throwing in a third candidate who won two three-elector states (one from each candidate), producing a tie without a possible majority.

None of which is to dampen my enthusiasm for the show. But if the writers are deliberately showing a constitutional possibility, I just want them to get the small details right (especially when those details involve legal issues I am interested in).

Posted by Howard Wasserman on June 16, 2015 at 09:31 AM in Constitutional thoughts, Culture, Howard Wasserman, Law and Politics | Permalink


I think the faithless elector scenario is a good one and might have got us mostly the same place (Jonah's role is complicated as various later entries suggest). The idea that an "acting" (which the show elides past too much) President can himself (ha! psych!) can pick a vice president is a problematic plot point. One that in the end really didn't matter. it could have been removed from the plot without too much difference really. It would have been one less indignity for Selina Meyer, but could have found something else.

Posted by: Joe | Jun 27, 2016 9:29:24 AM

I'm wondering how many people who have commented here watched the Season 5 finale and saw that one of the VP candidates was elected president by the Senate after no one reached a majority in the House vote. I love Veep a lot, but was a little frustrated that they seem to have gotten some of the constitutional details wrong. Reading through these comments, II actually think Josh's scenario about a faithless elector would have been FAR superior to what they actually ended up doing.

I also emailed Dr. Wasserman about this earlier. I'm probably thinking waaaaay too much about a TV show but I sure wish they'd have gotten this more accurate.

Posted by: Jason | Jun 27, 2016 12:53:51 AM

Josh sets up a quite nifty scenario.

The show actually missed an opportunity -- especially given Meyer left something to be desired so it would have been pretty realistic -- by not having a third party candidate who might get a few electoral votes. One in theory might still pop up.

One pushback I'd have is why in the heck would she accept the nomination? She had a hope last time to eventually win. Would she want to wait four to eight years (since unlike the other guy she lost to, Tom James is prime stuff) again?! She would look a big loser. It would make more sense for her to try to become a senator again, having the cash for it. Also, Tom James is a crafty sort. Having Selena Meyer as his VP would just be an accident waiting to happen.

But, who knows & rule of funny.

Posted by: Joe | Aug 20, 2015 2:25:16 PM

I think this is all a bit of a red-herring. Here's the scenario I see happening in season 5: The electoral college is evenly divided coming out of election day. There are no third party candidates (I don't see how there could be from the S4 finale) but a faithless elector votes for Tom Jones for president instead of one of the two actual presidential nominees. At that point he's in the top three, with a single electoral vote. The House elects him as a popular "compromise" candidate. At that point the Senate would still have to select a Vice-President, but they only get to choose from the top 2 candidates, not 3. That would be Jones again, and whoever the other running mate would be. There's really no way to get Meyer into the Senate voting, BUT if the Senate were to also vote for Jones (perhaps before the House compromises on him for President) then he could decline the Vice-Presidency, accept the presidency, nominate Meyer to the now vacant vice-presidency, and all is right in VEEP world with Meyer once again subjected to hilarious irrelevance in the OEOB.

Posted by: Josh | Aug 20, 2015 1:56:53 PM

Regarding the post about Cheney claiming that the Vice President is a member of Congress, technically it's true. The VP is also the President Pro Temp of the Senate and called on to break tied votes.

Posted by: Shaun Reen | Aug 19, 2015 10:56:51 PM

Dear Howard,

Thank you for the prompt response. Since I originally posted my eyes have opened-- my hang-up was not absorbing that due to the Electoral College tie the Senate would be choosing the Vice President -separately-, and thus James could win that vote independently of Meier and serve as Acting President until the House got its act together and choose a President.

As you say, a diverting scenario which seems extremely unlikely, and temporary in any case.

Tangentially, it seems that in the current political climate an electoral college tie would be a de facto loss for Democrats!

Posted by: Camilo Fontecilla | Jul 20, 2015 3:15:24 PM

Doyle can be VP only until 11:59 a.m. on January 20. Then the office is formally vacant until someone new, duly selected, is sworn in.

Posted by: Howard Wasserman | Jul 13, 2015 10:35:36 PM

I may be missing something here, but isn't Doyle still the VP? I don't see any scenario where James, the VP nominee, could wind up being POTUS. Help, we've been scratching our heads in my house all evening!

Posted by: Camilo Fontecilla | Jul 13, 2015 10:16:26 PM

It's more plausible than you think that the House would be unable to elect a President. This result is possible without the House being deadlocked 25-25 because, as the Twelfth Amendment states, a "majority of all the states" must agree to a President.

A deadlock is possible if some state delegations are tied. Right now, the delegations of Maine, New Hampshire, and New Jersey are evenly split, and this has been true in recent memory of Hawaii, Idaho, Kansas, Minnesota, and Mississippi as well (and perhaps some others). The more states have a small and even number of representatives, the easier a deadlock becomes.

There's historical precedent for this. In the 1800 election (before the Twelfth Amendment, but the original Constitution used the same "majority of all the states" language to govern contingent elections), 2 of the 16 state delegations were tied for the first 35 ballots. Thus, Jefferson could not become President, even though he led Burr 8 to 6 on every ballot.

Posted by: BMS | Jun 16, 2015 8:21:49 PM

The Constitution speaks of the "Vice President elect" and additionally gives Congress the power to figure out what to do if even s/he isn't available. I guess in theory they might let the lame duck VP serve. The President and Vice President otherwise have fixed terms.

The 12A says "from the persons having the highest numbers not exceeding three on the list" ... in that scenario, Congress would seem to have a choice to pick one over the other by whatever route it chooses.

Posted by: Joe | Jun 16, 2015 6:46:40 PM

You post a possibility that the election could come out this way:
Republican: 266 EC votes
Democrat: 266 EC votes
Minor Party: 6 EC votes

The Twelfth Amendment provides that the House selects from the top three candidates. However, what if those 6 EC votes are divided between two minor candidates:
Republican: 266 EC votes
Democrat: 266 EC votes
Minor Party 1: 3 EC votes
Minor Party 2: 3 EC votes

How would we select which of those two minor party candidates the House would get to select from? Popular vote in those 3-vote states?

Posted by: Ben Porter | Jun 16, 2015 6:34:17 PM

Under these Amendments, is it referring to the previous Vice President? In that case, isn't the guy Selena pushed off of her ticket to make room for James still the VP, and would he be the one who was Acting President?

Posted by: Rob | Jun 16, 2015 5:48:57 PM

It has been noted that the CNN graphics during its Election Night coverage suggest President Meyer is Democrat (blue) as are some of her politics (she's pro-choice and her signal legislation, before you know, was a family care bill).

Tom James' request to be Treasury Secretary reminds me of Cheney's claim that he was actually was somehow part of Congress, which might make that tricky. But, don't recall anyone taking Cheney seriously anyhow.

I agree with the overall analysis though (except for James, who seems like he would know better) believe those numskulls would be confused. Also, you'd think they focus more on the fact that other guy (yes, the booster from Friday Nights Lights) might actually win if the wrong party controlled 26 state delegations.

Finally, prime material -- Bush v. Gore type challenges or concern about some faithless elector. Or, even some attempt to convince one to be faithless. If you are going to kill your own bill, why not?

Posted by: Joe | Jun 16, 2015 10:06:04 AM

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