Is Ross Perot Really Just a Stalking Horse for James Baker? : Election: Under terms laid out in the Constitution, if the election goes to the House, the secretary of state could end up in the White House?

Jack N. Rakove , who teaches American history at Stanford, recently edited "Interpreting the Constitution: The Debate Over Original Intent" (Northeastern)

It is the silly season of American politics, the spring of our discontent. The primaries have again yielded apparent presidential nominees who inspire grave doubts--not only in an alienated electorate, but even among supporters. Public-opinion polls inconceivable a year ago have inspired pundits, politicos, pollsters and professors to speculate feverishly about the possibility that Ross Perot's wild-card candidacy will either:

(a) sweep the country like a Populist prairie fire, electing a non-party President for the first time since George Washington;

(b) deny any candidate the 270 electoral votes required for election, throwing the decision into the House of Representatives for the first time since John Quincy Adams struck his notorious bargain with Henry Clay in 1825;

or (c) fizzle the closer we get to the election, relegating Perot to the same list of historical footnotes reserved for John B. Anderson in 1980, George C. Wallace in 1968 and Strom Thurmond in 1948.

At a moment like this, any scenario is worth considering--so it is possible that a wealthy, politically ambitious Texan with a distinguished private career, who has never been elected to national office, will move into the White House on or after Jan. 20, 1993.

His name is James A. Baker III, and he is secretary of state. Making him President won't be easy, but there is an outside chance he can pull it off. Here's how.

First, all three presumed candidates--George Bush, Bill Clinton and Perot--have to remain competitive until the November election, and then deadlock the Electoral College.

Second, Bush would have to finish a narrow first in the popular vote, Perot a strong second and Clinton a laggardly third. This would create a strong presumption that the House of Representatives, though it has a majority of Democratic delegations, would not elect Clinton in defiance of the will of the people.

Third, a narrow plurality for Bush would have to be interpreted as an effective vote of no confidence, promising four more years of divided government under a President lacking a coherent program for national problems.

Fourth, Dan Quayle would have to confirm the prevailing impression that he missed his true calling when he gave up golf for politics, giving the Senate a pretext for balking at making him vice president-elect.

Before detailing how these political considerations could conspire to give Baker the White House, let us review the quaint institution of the Electoral College.

Contrary to common notion, the Electoral College was not invented out of a fear of democracy. The framers of the Constitution rejected popular election not because they worried that the people would cast their votes for demagogues, but because they thought voters would lack the information needed to make an informed choice.

But the framers also worried that Congress would know too much to be entrusted with the election. Congress would choose someone who would prove all too pliable, lacking the independence that the framers agreed the President should possess.

So the framers devised an ingenious device--the Electoral College. The electors would meet in their separate states on the same day, thereby reducing the danger that any "cabal" would shape their choice; they would then disband, and so never gain any influence over the President selected. True, many framers believed the Electoral College would rarely produce a majority; they therefore provided that the House, voting by states, would make the final choice from the five leading candidates (reduced to three by the 12th Amendment of 1804). In a sense, the framers regarded the Electoral College as a de facto primary, and the subsequent decision of the House as an open runoff.

One aspect of this "original understanding" of the Electoral College is relevant to the Baker scenario. The framers' doubts about the ability of either voters or electorates to make an effective choice would presumably evaporate whenever an incumbent President was running. After all, who would have a greater national reputation than a sitting President? Voters and electors could be forgiven for failing to give a majority to obscure candidates (governors of small states, retired senators, hack journalists) seeking the presidency for the first time. But for an incumbent President to fail to win either a popular or electoral majority means he did not merit a second term.

On this basis, a Democratic House of Representatives could legitimately deny Bush reelection--even if he held a modest plurality of the electoral vote. To whom would the House turn? By 18th-Century standards, it would be free to elect either Clinton or Perot. By modern norms, however, it would be hard for House Democrats--hardly great risk-takers--to elevate either also-ran above the leading vote-getter. Too many Americans would believe that the House was perpetrating a gross injustice--even if it was based on antiquated provisions of the Constitution.

In case of electoral deadlock, then, there would be good reason for the House to conclude that the nation would be better served if "none of the above" was elected President by Jan. 20, 1993. In that case, the Constitution provides that the vice president-elect would act as President. But is the Senate likely to elect a vice president before the House has acted? Would you risk asking, say, Quayle to be chief factotum for Perot? An impasse in the House could have the same result in the Senate.

We can thus imagine that neither a President-elect nor a vice president-elect would be available come high noon Jan. 20. Under the 20th Amendment of 1933 and the Presidential Succession Act of 1948, the line of succession for an acting President to serve until a President is constitutionally elected then devolves, in turn, on the Speaker of the House--currently Thomas S. Foley (D-Wash.)--and the President Pro Tempore of the Senate--currently Robert C. Byrd (D-W.Va.). To act as President, however, one of these men would have to resign from Congress. From everything we know about congressional incumbency, this might be too much to ask.

At long last we have reached Baker, who, as secretary of state, stands next in the line of succession. Here are three reasons that warrant allowing him to act as a caretaker President until a new House is elected, two years later.

First, recalling that, in this scenario, Bush has a slight plurality of the electoral and popular vote--just enough to discredit his own reelection without enabling his competitors to claim any stronger mandate--Baker's close association with the President would provide the veneer of continuity the government would need.

Second, Baker's record of service in the executive branch since 1981 would make him a suitable caretaker President, alarming the public far less than the alternative specter of government by Quayle.

Third, and most important: Because the House can resume balloting at any time over the next four years, the 1994 congressional elections could become the equivalent of a quasi-parliamentary election, in which control of both the House and the presidency would be linked. The choice of the new House would still be limited to Bush, Clinton and Perot. But the three candidates, and the political ideologies they represent, would have strong incentive to organize cohesive congressional slates. Voters, in turn, would finally see that there may actually be a connection between the choice of a local congressman and the direction they wish the national government to take.

Before dismissing this zany scenario, ask yourself whether the degraded condition of the U.S. political system will produce a more satisfactory result in November. Will four more years of divided government under Bush or the election of a small-state governor or an independent lacking any political ties get the federal government out of its current deadlock? Is it time for President Baker?

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