Parsing Constitutional Games on 'Veep'

27 Jun, 2016 By: John Latchem

The June 26 episode of HBO’s “Veep” concluded an intriguing fifth season that played on the concept of a tie in a presidential election. The concept is catnip to political scientists and fans of U.S. history, given all the quirks built into the United States Constitution and its subsequent amendments and laws concerning succession of power. Unfortunately, the result of “Veep” might prove a disappointment to such wonks, given how it turns on common misconceptions of electoral procedures.

The situation on “Veep” involved President Selina Meyer (Julia Louis-Dreyfus) seeking to be elected outright after serving for a year when the previous president resigned. Election night ended with a tie in the Electoral College between her and Senator Bill O’Brien. And that’s just the start of this political rollercoaster.

Most voters have probably heard of the Electoral College, but don’t quite understand it in its full context. When the Constitution was originally written in 1787, the Founders envisioned the Electoral College as a council of experts qualified to choose a chief executive, chosen by the individual state governments. The idea was to guard against an uninformed electorate while at the same time preventing larger states from becoming too dominant. Over time, states granted the power over their Electoral delegates to a popular vote. So, when you vote for president, you actually aren’t picking the candidate on the ballot — you are voting for that party’s slate of electors who are pledged to that candidate. Each state gets a number of electors equal to their number of senators (two) plus their number of representatives in the House.

Interestingly, at the end of last season Selina remarked that giving the system an even number of electoral votes (538) to make a 269-269 tie possible was an oversight of the Founders. Actually, with a fixed Congress of 435 and two senators for each state, the number would be odd if not for the 23rd Amendment, passed in 1961, which gives Washington, D.C., a minimum number of electors, which in this case is three, which creates the even number. Also, the issue isn’t the tie per se, it’s that no single candidate received the 270 majority number, which could also happen if more than two candidates were strong enough to win a state, or if there were faithless electors who didn’t end up voting for their pledged delegates.

The Electoral College tallies their votes state-by-state in December, with each elector choosing one presidential candidate and one vice-presidential candidate, and sends the results to Congress. New congressional terms begin Jan. 3, and the Electoral College votes are announced and recorded Jan. 6. If no one has a majority for either president or vice-president, or both, then Congress has further work to do.

The procedure is covered by the 12th Amendment, which states:

“… if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”

That means that each state delegation meets to determine who that state will vote for, which would likely break along party lines. It also means that states with just one representative can have a lot of influence. To win the presidency, a candidate needs to win 26 votes from the state delegations.

At the same time, to determine the vice-presidency, “if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”

After a recount plot failed to resolve the tie, the story on “Veep” ended up in the House and Senate. Now, a reading of the Amendment might imply that the votes are supposed to happen as soon as they read the Electoral College results, and keep voting until someone wins. But that’s not what happens on “Veep,” which may be the first signal of some Constitutional disorder on the part of the show’s writers.

On the show, the House holds a vote, though it’s not clear it’s immediately after the Electoral College results are read. No one gets a majority, so no one wins the presidency on the first ballot.

Here’s where the show starts to mess up its exposition to viewers about the proper procedure. Selina’s advisors on the show say that if the House can’t decide, the vote goes to the Senate, and that the VP chosen by the Senate becomes president.

This isn’t quite the case in real life, though the scenario is covered by Section 3 of the 20th Amendment: “If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If 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; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

In this case, the president needs the House vote to qualify, and if that doesn’t happen by the Jan. 20 beginning of the next term, then the Senate’s choice for vice-president, if they made one, “acts” as president until the House breaks its deadlock.

Yes, this does create the potential for a president and vice-president from different parties. But for the moment, the relevant language is that word “acts.” It means that the vice-president does not actually become president, contrary to the implication on the show. Rather, the VP is merely entrusted with the powers of the presidency on a temporary basis, until the House picks the true president, or the term ends, whichever comes first.

On the show, Selina’s running mate, Sen. Tom James (Hugh Laurie) schemes with the Speaker of the House to ensure the House vote for president doesn't yield a winner, and block further votes. The popular James is confident he can win the Senate vote for VP, and thus would be president given the other vacancy. The show also holds the Senate vote a few days after the House vote, which seems contrary to what the Amendment says. Remember, both the House and Senate are in theory meeting in a joint session to hear the Electoral College results. The Founders probably figured that, if no one wins, then the two houses would break into their constituent groups and call for an immediate roll call.

Given Congressional procedural rules, delaying another House vote might not be out of the realm of possibility. The length of the delay might cause some public outcry, and could send the candidates affected out to lobby for a new vote and to get Representatives to change their vote. And with a long-enough delay, a midterm election to select a new House might decide a presidency as well. But for now, let’s assume the situation on “Veep” so far is possible as presented.

One of the jokes put forth on the show is that, assuming James wins the vice-presidency and then elevates to the presidency, he would pick Selina as his veep, putting her back in the position she was at the start of the show (hence the show’s title). This is covered by Section 2 of the 25th Amendment: “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.”

On the show, James is essentially proposing to nominate Selina to be VP. This wouldn’t be possible, however, because the VP position wouldn’t be vacant. Even as he’s acting as president, James would still be VP.

It’s at this point the show makes its most egregious Constitutional error. James starts getting cocky about his potential to win the Senate vote, and all the scheming for votes in the House and Senate has slighted lame-duck VP Doyle, who begins his own scheme. The Senate vote subsequently ends in a 50-50 tie, and the show cites Article 1, Section 3, Clause 4 of the Constitution: “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

This means that when a Senate vote is 50-50, the VP breaks the tie. This is what happens on the show. Doyle betrays his party and selects O’Brien’s running mate, Laura Montez, to be VP. The show then immediately elevates her to be President-Elect.

But the show’s exposition about the VP breaking ties is overly simplistic. What makes the show wrong about this procedure is the phrasing of the 12th Amendment, which specifies that a majority of the “whole number” of “Senators” is required to select a winner.

A majority in this case is 51 Senators. And since the vice-president isn’t a senator, his vote doesn’t matter. In a 50-50 tie, no one wins and the Senate votes again.

The show either tries to cover for this or is confused by the VP’s role in the Senate, thinking that the title of President of the Senate makes him a member of the Senate, which it does not. The show confounds the error by presenting a C-SPAN graphic identifying VP Doyle as “Senator Doyle,” which is obviously wrong, though might be understandable if the show’s writers thought the VP was a member of the Senate.

Still, that’s a quibble based on a dramatic conceit to give Doyle a chance at revenge. A 51-49 vote would yield a similar result, provided the House vote remained blocked.

However, at this point the show goes off the rails, Constitutionally. Everyone declares Montez the next president, and the population doesn’t seem to have a problem with the legislative maneuvers putting someone who didn’t receive any votes into the White House instead of two people who are still ahead of her in line to get the job. On top of that, Montez is identified as the “First Elected Female President,” as a way for the episode to further slight Selina, who wanted to be the first woman elected.

This statement is just a bizarre leap of logic. On top of Montez not actually being president, and not actually being elected, her maneuver into the presidency is still due to a vacancy, which was the same way Selina became president a year earlier.

The show’s intent seems to dump on the luckless Selina as she leaves office, and implies she has nothing left to do. But with the House vote still technically open, she and O’Brien could continue to lobby for votes. So her resigned attitude at the end seems bizarre.

What’s a shame is that the show could have achieved very similar results with a few twists that were more Constitutionally accurate. The episode is still very funny, but understanding the Constitutional sidestepping involved detracts a bit from the end result.

Parsing Constitutional Games on 'Veep'

About the Author: John Latchem