What if Congress Is the Kingmaker?

By , Charles O. Jones is a professor of political science, University of Wisconsin-Madison.

TAKING Ross Perot seriously means that we have to pull out our dog-eared copies of the Constitution and reread the 12th Amendment. For we need to contemplate the possible effects if none of the presidential tickets receives a majority in the Electoral College.

In that event, Congress will choose a president and vice president. The 12th Amendment provides that the top three vote-getters for president (presumably George Bush, Bill Clinton, and Mr. Perot) would be voted on by the newly-elected House of Representatives. However, the vote is taken by states, "the representatives from each state having one vote." Vermont, with one representative, has one vote and California, with 52 representatives, has one vote. A majority of states (26) is required for election.

Meanwhile, the newly-elected Senate is charged with the responsibility of choosing a vice president. But the rules are different. Only the top two vote-getters are eligible for election. Each senator has a vote and a majority of all the senators (51) is required to elect a vice president. The sitting vice president, Dan Quayle, would preside but would not have a tie-breaking vote in this instance since he is not a senator.

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What if no presidential candidate receives a majority of states in the House before Jan. 20, 1993? Then under the 20th Amendment, the vice president-elect would assume the office until a president has been chosen. Should neither a president nor a vice president be chosen or qualify, the presidential-succession statutory provisions apply in determining who then acts as president - beginning with the Speaker of the House.

We do not have a lot of practice with this process. It was used last in 1836, when Richard M. Johnson failed to get a majority of Electoral College votes as Martin Van Buren's vice presidential candidate. The Senate voted in favor of Johnson, 33-16. However, the most famous instance was in 1824, when John Quincy Adams won in the House over Andrew Jackson. Though he ran second in the Electoral College vote, Adams won a bare majority of states (13 of 24) on the first ballot.

What can we expect to happen this year should the outcome not be resolved by the Electoral College? No one can really know for certain. But let's begin with what is known and what may happen.

* It is the new Congress, not the present Congress, that will make the crucial choices. And the new Congress promises to have record turnover - possibly as many as 125 new House members and 10 to 15 new senators.

* Perot does not have a political party and therefore may receive no votes in the House even if he were to be the top vote-getter in the popular election or the Electoral College.

* Since voting is by states in the House, delegations evenly split between the two parties may lose their vote unless one member crosses party lines. There will be 23 even-numbered delegations in the new Congress - some of which could be split down the middle. And should a member of an odd-numbered delegation favor Perot, the pool of possible split delegations increases.

* Should Mr. Clinton run third in the Electoral College, yet be elected in the House due to the fact that a majority of state delegations are expected to be Democratic, his vice presidential candidate would not be eligible for election by the Senate (because, remember, the Senate chooses between only the top two veep candidates). Either Mr. Quayle or Perot's vice-presidential candidate would be elected to serve in the Clinton administration!

* Should no candidate receive a majority in the House and should the Republicans recapture control of the Senate, Quayle would be chosen to serve as vice president (presuming Mr. Bush did not run third in the Electoral College) and he would then become acting president on Jan. 20.

* And if no candidate received a majority in the House, and if the Senate were split 50-50 between the parties, Speaker Thomas S. Foley or his successor would become acting president on Jan. 20.

There are many other conceivable variations depending on the Electoral College outcome and the partisan makeup of the new House and Senate. Perot promised he would withdraw rather than send the election to Congress. How and when that might happen, however, is by no means clear since he would not know the outcome of the November election in advance.

Fierce bargaining may be expected in the House should the decision have to be made there. We can only hope that some kind of deal is struck that produces a clear result. All we know for certain is that the United States will be selecting its president by a method untested in modern times. It is unclear what the policy effects will be of having Congress select the president. Much depends on how beholden a president is to those in the House who made up his majority.

Of one thing we can be assured: American voters need to be alert to the possible consequences of the choice to be made in November. Many may feel strongly that the choice between Bush and Clinton is not a good one. But they should consider very carefully before they vote for Perot just for the novelty of it or believing that it is a good way to send a message. For the result may be to cancel everyone's vote and activate an ill-understood and potentially hazardous process - one that may produce a presiden cy of questionable legitimacy.

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