Stephen L. Carter: It's time to change the way we elect the president

For those who’ve been unable to shake the post-election funk, I’d like to resurrect an idea that’s been kicking around for years: Instead of all the agonized stories about what Kamala Harris will do next, let her spend the next four years in her current job as vice president of the United States.

Wait, what?

Seriously. I’m suggesting, not for the first time, that we repeal the 12th Amendment and replace it with something better. And that “something better” would be a modified version of what the Framers laid down. This isn’t a partisan proposal — more on that momentarily — but is, rather, a feasible way to temper the damaging polarization of our era. After the Electoral College votes, why not send the winner to the White House and let the second-place finisher move into the curiously ugly Victorian mansion formerly known as “Quarters A”?(1)

We’re all accustomed to the system we’ve grown up with, where each party runs a ticket — a presidential and a vice presidential candidate who work together to win the election. The vice president gets an office somewhere near the president’s and is sent off to solve insoluble problems (say, the border) and attend the funerals of world leaders not worth the boss’ time. Sometimes, the Veep is required to abandon long-held views to publicly defend the administration’s decisions. (Cue The West Wing, season 3, episode 5.)

But aside from familiarity, the system has little to recommend it. Nobody thought at the time the Constitution was drafted that the vice president worked for the president or even was part of the executive branch. By creating a role within the administration, we’ve weakened the office.

Under the original constitutional plan, members of the Electoral College cast two ballots each. The person receiving the most votes became president; the runner-up became vice president. But the old system was clunky, and change became inevitable after the 1800 Electoral College tie between Thomas Jefferson and his running mate, Aaron Burr, threw the election into the House of Representatives, where chaos reigned. The answer was the 12th Amendment, ratified in 1804, under which the electors vote separately for president and vice president.

It probably seemed like a good idea at the time — and for the first century and a half or so, when all the vice president did was preside over the Senate, perhaps it was.

For most of the nation’s history, the vice president’s only physical office was on Capitol Hill, a fact of political geography signifying the widely accepted view that the occupant’s principal role was legislative. Harry Truman, who under President Franklin D. Roosevelt had been excluded from knowledge of the Manhattan Project, insisted that the vice president be a statutory member of the National Security Council. However, it was not until Lyndon Johnson came aboard in 1961 that the vice president gained quarters near (still not in) the White House. Since then, we’ve seen the president and vice president knit ever closer to the point where vice presidents are basically executive branch dogsbodies.

OK, that’s an oversimplified history. But even the more complex version of events follows from the proposition that the president and vice president are a team. What I’m suggesting is that we sunder them.

Suppose the vice president wasn’t elected as part of a ticket but finished second in a national election. Thus, she has her own independent power base and wouldn’t be part of the president’s staff. The Veep would likely have an office and underlings only on Capitol Hill. After all, her only constitutional duty is to break ties in the Senate. Moving to the legislative end of Pennsylvania Avenue might be liberating. The vice president could map out her own positions. She would be free to speak up when she thought the president was wrong. During the campaign, Harris argued that doing so would be contrary to tradition. Even if she was right, it’s a bad tradition.

You’re thinking the president could just ignore the Veep. Maybe. But the president who did so would be a fool. Presiding over the Senate might seem like a small thing. However, the importance is potentially huge in a nation as closely divided as this one. The vice president breaks ties. If the administration can’t count on that 51st vote automatically but must work to win it every time there’s likely to be a 50-50 split, policy gets pushed closer to the middle.

This isn’t a partisan thing. I argued for repealing the 12th Amendment when Barack Obama was in the Oval Office. And even if, contrary to my lede, you’re delighted about the election's outcome, you might wonder how sensible it is in so sharply divided a country to continue indefinitely with a system where whoever wins 51% of the electors gets 100% of the power. In a 50-50 country, an arrangement that forces the party in possession of the White House to take the other seriously is all to the good..

(1) Fun fact: Although the Veep of the moment has occupied the house on the grounds of the United States Naval Observatory for half a century now, it remains, officially, a temporary residence.

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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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