interviews
After the Polls Close
by John Fortier
October 19, 2020
This interview with John Fortier, Director of Bipartisan Policy Center’s Democracy Project, was conducted and condensed by franknews.
Why do we have an Electoral College?
Our election system is really much more of a states’ issue than people realize. We vote differently in different states, and the Electoral College really is the mechanism by which we vote through the states.
Who makes up the Electoral College? Who are our electors?
Sometimes people think of the Electoral College as a point system — if you win a state, you get some amount of points — but, really, when you vote, you are electing a slate of electors.
Slates of electors — one Republican, one Democrat — are nominated or elected by the parties in each state. On election day, the public votes for one of those slates.
The vote on November 3rd typically results in an Electoral College majority. There is a second election in December amongst electors, but it is not widely discussed or covered, mostly, because it doesn’t matter. Electors are loyal to their parties and typically vote as expected. The new Congress then votes to validate the Electoral College votes on January 6th, and by January 20th we reach inauguration. Usually, there are not any great hiccups in the process.
Does that change if it is a close election?
Even in a close election, we don’t think too much about the Electoral College. However, there are a few things that have happened in the past that could happen again.
First, there can be “faithless electors” — electors who vote against the popular vote of their state. Electors, for the most part, have the ability to act freely, and some people worry that they could tip a very close election if a few electors were to change their votes at the last minute — they could move the total for a candidate from 270 to 268, for example. However, in the past, faithless votes tend to be protest votes that do not really amount to anything.
Recently, a number of states have passed strict laws that bind their electors to the popular vote of their state. Previously, laws asked that electors be bound and, in some cases, imposed small fines on faithless electors, but there were no severe constraints. In the 15 States that now have this power, electors will be replaced if they vote the wrong way.
I wasn't sure if that was going to pass constitutional muster, but The Supreme Court upheld it this summer. The Supreme Court actually, in their footnote, hinted at the idea that the only case where this would cause additional hiccups is in the scenario that a candidate unexpectedly drops out, dies, or, for one reason or another, is not on the ticket. Which, of course, is something that has been in the conversation over the last couple of weeks with the president having Covid.
Another thing that can happen is the bargaining amongst the electors. In the 1968 election, George Wallace, a third-party candidate, won states and won electoral votes. Amongst the Nixon and the Humphrey electors, there was some discussion about coming together to exclude the Wallace electors. They didn’t want the election thrown into the House of Representatives, which is what happens if the Electoral College is tied.
But these are sort of odd situations, and these aren't the issues that keep me up at night.
What would you consider to be the more pressing concerns with the Electoral College during this election cycle?
I think the more realistic scenario that we could see is something like what started to happen in 2000 or what happened in 1876. In both cases, because the state race was so tight, there was a real question as to which slate of electors, the Republican slate or the Democratic slate, should be appointed.
In Florida 2000, if Al Gore were to pull ahead in the recount, would a second slate of electors need to be appointed? Eventually the Supreme Court stepped in and halted the recount in Florida, and the Republican slate of electors was appointed. But, imagine a scenario where the dispute is not resolved.
There are cases where two slates of electors may be appointed, and there is no set way to resolve that conflict.
Eventually, the dispute will end up in Congress’ hands, but it is not clear in The Constitution how Congress is supposed to decide. After 1876, when multiple slates of electors were actually sent in, Congress passed the Electoral Count Act to try to address how to approach that sort of scenario, but, I would say, it still is ambiguous.
It is also important to note that though we do have popular elections in every state, popular elections are not guaranteed by The Constitution.
Early on in our democracy, many state legislatures would directly appoint state electors. If you had a Republican legislature, you would appoint a Republican slate of electors. While this faded out after the Civil War, an argument — a controversial argument — was made by the Florida legislature in 2000. The Republican legislature felt that Democratic attorney generals were unfairly favoring the recount for Gore, so they wanted to step in and send the slate of electors to Washington themselves.
If I wanted to think of disaster scenarios — this is the sort of case that would be the disaster scenario. This is where there is the least amount of clarity in the election mechanisms after November 3rd. This is where parties could really seriously disagree, and this is where we have no third arbitrator to decide between the two of them. The parties would have to work it out on their own.
Are there deadlines that are important to know in the electoral process?
The president’s term ends on January 20th at noon.
Despite conversations about postponing the election, it would be incredibly hard to do. The deadline is in The Constitution.
If the election is not resolved by the inauguration, if it is still with the House of Representatives, then perhaps we have to go to the line of succession. But January the 20th at noon is when a new president has to take office.
There are two other dates that might matter. They're both in law, not in The Constitution, so theoretically they could be moved. There is the meeting of the electors, which is on December 14th this year. There is also the “safe harbor” deadline which is 6 days before the meeting of the electors, which is set by law to try and aid in the counting by ensuring no interference from Congress if the counting is complete by the set deadline. This date was highlighted by The Supreme Court in Bush v. Gore, and was one of the reasons they stopped the recount.
Recently, it seems there have been a lot of claims that the electoral process is undemocratic, and a push to move us towards a national popular vote. Do you think the Electoral College is still a democratic system?
The Electoral College has never been particularly popular in the modern era. Many people think that we should have a national popular vote — it is a more natural line of thought. And if we were to start from scratch now, maybe we would instill a national popular vote.
But is the Electoral College system undemocratic? I guess that I am not fully convinced of that.
We are a country of states. And though a few times there has been a difference between who wins the Electoral College and who wins the popular vote, it still is very unlikely to happen.
The proposal for a national vote, as it stands, is a halfway house, because it is really hard to amend The Constitution. States can appoint electors directly based on whatever criterion they want, and so the idea would be to appoint electors based on national popular, rather than the states' vote. But, there are some issues with that. What happens if the election is really close? You can’t really recount a national election, you can only recount the states. You would also have to make sure that all the states are uniform in their elections. And maybe that's a good thing, maybe people would like that. But maybe when we get down to the nitty-gritty and people will say, "Well, we really liked the way we vote in Alaska, it's good for us, or we like the way we vote in Oregon."
It is hard for a party to be on the losing end of this system twice within 16 years, and perhaps once more again, but I think there are reasons to be cautious about changing the system.
interviews
A Failed Lending System
by Alan Collinge
September 30, 2020
Alan Collinge, founder of StudentLoanJustice.org, was conducted and condensed by franknews.
Alan | I have a bachelor's, a master's, and an engineer's degree. I began looking deeply at the student loan problem because of my own student loan issues, and in 2006 I decided to dedicate myself to this work full time. The debt crisis, unfortunately, has only become worse since those days.
frank | And how do you articulate what the problem is?
The problem is that student loans have been exempt from the most fundamental consumer protections — some of which are called for in the constitution. Unlike every other loan in this country, student loans do not have bankruptcy protection. Student loans do not have a statute of limitations. Fair Debt Collection Practice laws, Truth in Lending laws. Even state usury laws have been restricted or eliminated for most student loans.
The founding fathers themselves were savaged under the predatory British banks and merchants. They understood the importance of bankruptcy protections. And indeed, if you look at Article I, Section 8 of The Constitution, the founders call for uniform bankruptcy laws ahead of the power to raise an army, declare war, and even coin currency. But student loans have been essentially stripped of this protection.
Within that failure, what do you seek to do as an organization?
Well, for the first 15 years of our existence, we were fighting only for the same bankruptcy protections as every other type of loan. It hasn't worked, unfortunately. Congress failed us.
When I started this, student loan debt stood at $400 billion. There is now $2 trillion in outstanding student loan debt. Some of the official numbers are lower than that, but those numbers do not include a lot of the interest charges or private loans — home equity loans, for example —that families take out to pay for college. With these taken into account, we are well over $2 trillion of college debt. Now, in addition to the return of standard bankruptcy rights, we are advocating for all federal student loans to be canceled.
The student debt crisis is a national threat. We now know that the default rate for the class of 2004 was around 40%, and students in 2004 were borrowing only a third of what students today borrow. By our best estimates, before the pandemic, 80% of borrowers were never going to be able to pay back their student loans. Today, when 50 million people are losing their jobs, many of which will not return, it seems like it is time for all federally owned student loans to be canceled.
Does the increase in college accessibility and the inability to declare bankruptcy go hand in hand?
That is a good point. College accessibility has increased dramatically since the 1970s, when some of these consumer protections were rolled back. Around 30% of the population was going to college then, and now around 60% of the population is attending college.
There are better ways to make it more accessible. We should fund community and state colleges to a point where people can take on little to no debt.
So how did these consumer protections get stripped away?
My theory might be slightly controversial. There's something called the Powell Memo that Lewis Powell authored as a special advisor to President Nixon. He wrote it as a result of watching the cultural revolution of the 1960s. Mr. Powell outlined a series of steps that conservatives should take to prevent what happened in the 60s from ever happening again. He advocated for the changing of the guard across the country. He says that monied and conservative interests should infiltrate colleges, media, NGOs, and think tanks in order to sow the seeds of their ideology.
Sallie Mae was established months after the Powell memo was published, and in the 1970s we began removing bankruptcy protections.
In 1998, federal student loans became forever impossible to discharge in bankruptcy, and, astonishingly, this exception to discharge was extended to private student loans in 2005. This gave the lenders carte blanche to hound borrowers for the rest of their lives. This led to a huge boom in lending for colleges. This is also when the colleges began to really raise their prices.
While Sallie Mae began as a government-sponsored entity, they decided to go private around the mid to late 1990s — this around the same time they acquired the largest loan collection companies and largest guaranty agency in the country. This government-sponsored entity essentially morphed into a fully for-profit, privately held monopoly over the student loan market.
And what are the consequences of stripping these consumer protections away?
It’s an incredibly predatory system. People can have their wages garnished for defaulting on loans. Senior citizens and the disabled can lose their benefits. People can be fired from public employment. They can lose their professional licenses, and in some cases, they can even lose their driver's licenses if they default on federal student loans. It is a sort of one, two punch. There are no consumer protections, and on top of that, there is also a draconian, mafia-like collection regime.
After 15 years of working on this, you have a bill in the House and a bill in the Senate that aims to restore protections.
At long last, we have good legislation. We have two bills right now: S.1414 in the Senate, and HR 2648 in the House. Dick Durbin is the sponsor in the senate, and Jerry Nadler and Republican John Katko are the sponsors in the House.
There is no good reason that this bill shouldn’t pass. The sticking point is the Republicans in Congress, to be quite frank. Right now our number one goal as a group is to get a Republican senator to co-sponsor this legislation.
Outside of Congress, we have conservative support from places like the Cato Institute, The National Review, David Brooks, the conservative commentator at the New York Times, AND conservative scholars at George Mason University. These places agree that bankruptcy protections must be returned to student loans, but because of the way the industry has courted Republicans, as well as Democrats for that matter, we are stuck.
Politically, do you feel like either party has a good grasp and effective communication plan to tackle this issue?
Again, 80 percent of people, according to the Department of Education, will likely never be able to pay their loans. That is 44 million people in the country walking around, losing sleep over their student loans. And these people vote far more than average. 44 million votes can turn a loss into a landslide; even a third of that can turn a loss into a landslide. This is an electoral bonanza, the likes of which we have never seen before. In any other issue in this election — healthcare, defense, civil rights, etc — the battle lines are drawn and it is hard to move many people from one side to the other. It is the wild west with the student loan issue. Neither party has gotten their arms around this thing, and frankly, no sitting member of congress wants to touch it because it is such a big problem that has continuously been kicked down the road.
We started a petition calling on the president to cancel student loans through an executive order.
In Congress, if you pass legislation that costs the taxpayer anything, you have to come up with funding to support the legislation. So in order to cancel $1.7 Trillion in student loans through congressional legislation, you have to find that money. That requires cutting an equal amount from other areas, raising taxes, or adding to the national debt. That is just never going to happen. Congress will never pass legislation that cancels student debt fully. If they pass legislation it will be limited; there will be many strings attached, and ultimately, very few borrowers will actually see their loans canceled.
However, the president has the executive authority to demand the Department of Education to cancel all the student loans that it owns, which is about 85 percent of all student debt. The president can do that without needing one dime of tax appropriation or any congressional approval, and, I might add, without adding one penny to the national debt. The taxpayers already paid for these loans. There is no good reason that they need to pay twice! That is the solution we are pushing for, and we have over 700,000 signatures from people who span the political spectrum. I estimate that 40% of student loan borrowers are politically independent, and about 20% identify as Republicans. This really is a huge voter bonanza for whichever candidate steps up to solve it by executive order.
Are you hopeful that politicians will acknowledge that and act on it?
I am very happy to report that last week, Elizabeth Warren and Chuck Schumer have adopted our strategy and are now championing it. They introduced a Senate resolution calling on President Trump to cancel "up to $50,000" in federally owned student loans by executive order. While their plan is frankly vague, and a bit suspicious this close to the election, it is very encouraging to see that the concept of federal loan cancellation by executive order proposed. I believe we have really started something good here.
I can only hope that both parties will converge on this solution. There is no better opportunity than this pandemic to reset this failed lending system, massively stimulate the economy, free the 44 million Americans from the jaws of this nationally threatening lending system, and replace it with a more rational and just funding model for higher education in this country.