Subcommittee Hearing on "Proposals for Electoral College Reform: H.J. Res. 28 and H.J. Res. 43," U.S. House of Representatives Committee on the Judiciary Subcommittee on the Constitution, September 4, 1997.

Excerpt:

In 1981, I began an article The Wall Street Journal by pointing out that “where the Electoral College is concerned, nothing fails to succeed like success.” What was true then is true today. In 1996, as in 1980, the Electoral College produced a clear and immediately known winner; in 1980, and in each ensuing election, including that of 1996, it gave us a constitutionally legitimate President. Yet once again, by succeeding rather than failing, it failed to silence its critics. Why can’t they leave well enough alone? Why must they tamper with the Constitution? Because, they say, the Electoral College is “dangerous,” and not only dangerous but “undemocratic.”

The danger is said to consist in the possibility that a candidate might receive a majority of the electoral votes while receiving fewer popular votes than his or her opponent. That happened in 1888, and it is always possible (although unlikely) that it could happen again. But what if it did? Have we reached the point where the Constitution, alone, is incapable of lending legitimacy to an office? Where the right to hold an office depends solely on the suffrage of a popular majority? (I remind the members of this subcommittee that our greatest president, Abraham Lincoln, won a mere 40 percent of the popular vote in 1860.) Are the sponsors of these proposed amendments willing to say to the people that a candidate elected with a constitutional but not a popular majority is an illegitimate president? The reformers (perhaps including the sponsors of these amendments) speak of this popular-vote-electoral-vote discrepancy as a “time bomb waiting to go off,” but the one time it did go off, in 1888, nothing happened; there was hardly a ripple of popular discontent, no complaints from the losing candidate, Grover Cleveland, that he had been cheated, no spate of editorials claiming that Benjamin Harrison was an illegitimate president. Unfortunately, I fear the public would react differently today, largely because the moral authority of the Electoral College-indeed, of the Constitution itself–has been undermined by these persistent efforts by members of Congress to replace it with a system of direct popular elections.

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