The United States uses an indirect voting process called the Electoral College to elect the president. In this system, which is mandated by the Constitution, each state is assigned a number of “electors” based on the number of representatives the state has in both Houses of Congress; the voters in each state do not actually vote directly for a presidential candidate, but rather for a slate of electors, appointed by the state, who have pledged to vote for that candidate when the Electoral College convenes to select the president. (This odd system is why there have been instances, including in the most recent U.S. presidential election in 2016, when the winner of the popular vote does not become the president.) But suppose an elector who has pledged to support one candidate decides to switch her vote? This is not purely hypothetical: Throughout American history, 157 electors have defected from their pledge. Some states seek to prevent this through laws under which such “faithless electors” can be subject to civil penalties, including replacement. Electors from the 2016 Presidential Election have brought a case in the Supreme Court challenging these “faithless elector” laws as unconstitutional.
This challenge is obviously important for U.S. presidential elections—but (many readers might be wondering) what does it have to do with corruption? It turns out that, as U.S. anticorruption advocates have emphasized, if the Supreme Court rules that states cannot compel electors to vote as they have pledged, this could leave U.S presidential elections vulnerable to corruption. If electors cannot be legally required to vote for the candidate who won the popular vote in their state, then electors can be bribed—or, if not outright bribed, then subject to other forms of improper influence.
Part of the problem is that U.S. campaign finance laws and government ethics rules, as currently written, do not cover electors. Likewise, U.S. anti-bribery laws prohibit bribes to public officials and candidates for public office, but electors don’t clearly fall into either of those categories. The most relevant federal criminal statute is likely the prohibition on vote-buying and vote-selling in elections, codified at 18 U.S.C. §597. That section prohibits “mak[ing] or offer[ing] to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate.” But this statute has been construed narrowly to only apply to instances of a quid pro quo, which leaves the door open for private interests to corruptly influence electors so long as they avoid any explicit bargain. Moreover—and even more troubling—the U.S. President has virtually unlimited pardon powers, so if a candidate’s surrogates bribed enough electors to win the presidency, in blatant violation of §597, the President could simply pardon both the agents who paid the bribes and the electors who took them. These two problems—the difficulty of proving a quid pro quo and the President’s pardon power—also explain why the problem couldn’t be fixed by expanding the scope of other federal campaign finance, government ethics, and anti-bribery rules to cover electors as well as public officials and political candidates.
So, should the Supreme Court decide that electors cannot be penalized by the states for defecting from their pledged votes, the U.S. presidential election might be up for sale. And, for the reasons sketched above, this problem couldn’t be easily fixed simply by expanding existing federal anticorruption laws to apply to electors.
Should the Supreme Court side with the “faithless electors,” what could be done to protect the integrity of U.S. presidential elections (short of abolishing or significantly reforming the electoral college—steps that would require a constitutional amendment and so are not likely any time soon)? There are three possibilities: Continue reading