Billionaire and former New York City Mayor Michael Bloomberg is reportedly considering running for President as an independent. In a recent Op-ed, Bruce Ackerman argues that such a third party run could "plunge the country into a constitutional crisis." Ackerman envisions a scenario in which Bloomberg wins enough states that no candidate earns a majority of the nation's 538 electoral votes. Absent such a majority, Ackerman explains, the 12th Amendment requires the newly-elected House of Representatives to select the President, from among those three candidates that earned the most electoral votes. The Amendment also provides that the delegation of each state casts a single vote, and requires a majority vote of 26 states to elect a President. If no candidate receives such a majority, then the individual recently elected Vice President assumes the Presidency as acting President, unless that individual received less than a majority of the electoral votes cast, in which case the Senate elects the Vice President/Acting President. Ackerman opines that such a process with degenerate into a "free-for-all," characterized by "desperate efforts," "melodrama" and political maneuverings pursuant to a process that the People find "utterly mysterious," leading them to "turn away in despair." The original 12th Amendment, Ackerman says, "can't cope with the realities of modern politics." If Mr. Bloomberg is a true patriot, Ackerman says, he will not allow "personal ambition" to "throw the United States into a grave constitutional crisis."
The scenario that Ackerman imagines, while theoretically possible, is highly unlikely. For one thing, a single significant third party candidacy has never prevented a major party candidate from obtaining a majority of electors. Indeed, the 12th Amendment has come into play exactly once, in 1824, when four significant candidates (Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay) received 99, 84, 41 and 37 electoral votes respectively. If history is any guide, a third party run by Mr. Bloomberg will no more result in invocation of the 12th Amendment than did such runs by Theodore Roosevelt, George Wallace, or Robert M. Lafollette, all of whom won electoral votes.
More fundamentally, Ackerman's analysis does not come to grips with one of the "realities of modern politics," namely, the Republican Party's dominance of the House of Representatives. The GOP currently maintains a 247-188 margin in the House, with many Democratic seats concentrated in large single states such as California, New York and Illinois. More importantly, Republicans currently hold majorities among the House delegations of 33 states. Three other delegations are evenly split and thus could conceivably swing Republican in 2016 or, if they remain split, vote for the Republican candidate upon invocation of the 12th Amendment. It seems fanciful to assume that eight or more such states will choose Bloomberg over a Republican nominee for President. To be sure, the 12th Amendment provides that newly-elected House members would elect a President if the provision is invoked. However, given that only a handful of House races are competitive, the chance that Republicans will emerge from the 2016 elections with majorities of less than 26 House delegations seems highly remote. Thus, far from assuring a constitutional crisis, a run by Mr. Bloomberg could increase the chance of a Republican President come 2017. Mr. Bloomberg can run for President with his patriotism intact.
More fundamentally, Ackerman's analysis does not come to grips with one of the "realities of modern politics," namely, the Republican Party's dominance of the House of Representatives. The GOP currently maintains a 247-188 margin in the House, with many Democratic seats concentrated in large single states such as California, New York and Illinois. More importantly, Republicans currently hold majorities among the House delegations of 33 states. Three other delegations are evenly split and thus could conceivably swing Republican in 2016 or, if they remain split, vote for the Republican candidate upon invocation of the 12th Amendment. It seems fanciful to assume that eight or more such states will choose Bloomberg over a Republican nominee for President. To be sure, the 12th Amendment provides that newly-elected House members would elect a President if the provision is invoked. However, given that only a handful of House races are competitive, the chance that Republicans will emerge from the 2016 elections with majorities of less than 26 House delegations seems highly remote. Thus, far from assuring a constitutional crisis, a run by Mr. Bloomberg could increase the chance of a Republican President come 2017. Mr. Bloomberg can run for President with his patriotism intact.
