In a post last month I referenced this column in the Wall Street Journal by John Yoo. The gist of it is to criticize the Democratic Party's nominating procedure as undemocratic.

I have three problems with this column. The first is that throughout it all Yoo fails to distinguish between a party's nominating procedure and the actual election. Since all of his arguments apply only to the latter and the object of his criticism is the former, his conclusion is worthless. That was the topic of my previous post.

My second complaint is that Yoo insinuates that Clinton and Obama will be tempted to make unseemly quid pro quo bargains with members of Congress in order to gain their superdelegate votes. No, that's too kind. He does more than insinuate; he states it outright: "Members of Congress no doubt will cut deals for themselves and their constituents. A water project here, some pet legislation there -- surely such details are worth the nomination." He offers no evidence that this has actually happened, and in the final paragraph of the column he backs off of the accusation, admitting it is "unlikely" such a thing would happen today, maintaining only that it "ought to serve as a caution about what may happen". I see this as a typical partisan jab, to be taken in stride during the election season.

My third complaint is that when he tries to cite the election of 1824 as a case in point for his argument, he completely misrepresents it, culminating in one extraordinary paragraph that's wrong in so many ways that in order to correct it one has to take it apart and examine it bit by bit.

Before I do that, I should point out that I'm not accusing Yoo of being ignorant of history. I know he's a well-educated man, and his words in this column strongly suggest he knows exactly what he's talking about. In spite of that, he somehow manages to turn history upside-down so that it seems to mean exactly the opposite. How one does that, other than out of ignorance, I don't know. Outright deceit? A lawyerly disregard for anything but advocacy? I'm definitely accusing him of something, I'm just not sure what.

For those who haven't read the column, here's the context: The nomination contest between Clinton and Obama is so close that the result will be determined in part by the votes of the superdelegates. These are the Democratic members of Congress, governors, and various other party officials. Yoo focuses on the members of Congress and argues that having the president chosen by Congress, rather than directly elected by the people, is a bad idea. He backs this up with lots of nice quotes from the framers of the Constitution.

So far, so good. I agree that having Congress choose the president is a bad idea and he makes the case well. Yoo continues:

I have no major quarrel with this paragraph. I would just point out that only two presidents in our history were nominated by congressional caucus. When Yoo says "mediocrity", he is talking about presidents James Madison and James Monroe. Is Yoo suggesting that these two were mediocre presidents? It sounds like he is. Now I happen to think one could make a pretty good argument to that effect. If Yoo wants to make that argument I would enjoy reading it, but it's not at all the conventional wisdom. Madison in particular enjoys a high reputation. (Indeed, Yoo quotes Madison approvingly earlier in the column.)

Unless you're going to explain why you think the conventional wisdom is wrong and Madison and Monroe were lousy presidents, you can't use their elections as evidence against the system that produced them. That would be like me arguing that women's suffrage was a good thing because it led to the election of Warren Harding. (I do, in fact, believe that, but I wouldn't expect to make the argument to the general public unless I was prepared to also explain why I think Harding was a good president.)

But it's the next paragraph where Yoo really goes astray:

I assume that most readers of the Wall Street Journal are reasonably well-educated in American history but not familiar with the 1824 election in particular. That probably describes most of Benzene's readers as well, so I can ask you to help me out here. I actually do know the 1824 election pretty well, so I can only guess how someone who doesn't would read this paragraph.

For starters, let's consider "King Caucus". That's a familiar term to anyone who has studied this period in history. Since Yoo offers no explanation, those who haven't are left to guess. The word "caucus" sounds undemocratic. Given that the entire column has been about how the president should be chosen by the people and not by Congress, you might guess that "King Caucus" refers to the period when it was done the undemocratic way. And you'd be right. Since Yoo is obviously opposed to the undemocratic way, and he clearly is offering 1824 as an example of an election gone bad, you would probably assume that 1824 was the worst of King Caucus. And since Yoo helpfully tells you that King Caucus finally broke down in failure, you might guess that 1824 was the failure that broke the system. That's where you'd be wrong.

What Yoo cleverly elides -- and I say "cleverly" because he manages to write sentences which are factually accurate, even while they lead deliberately to a false conclusion -- is that King Caucus broke down before the 1824 election. In fact, 1824 is the year in which all the opponents of King Caucus, the ones who made all the same arguments that Yoo has repeated in his column, got their way. The 1824 election is the one election in our history that was held exactly as Yoo is arguing for. And he has the intellectual chutzpah to declare it a failure and make that an argument for his case anyway.

I need to back up. Another thing Yoo neglects to tell us is that all those quotes he offers from the framers of the Constitution were made without any presumption of a two-party system. The founders were generally opposed to political parties, and their system for electing the president was devised with the assumption there would be none.

In actual fact, presidential politics very quickly fell into a two-party pattern, pretty much right after George Washington. After that there was only one period in our history where there weren't at least two competitive political parties, and that period is exactly the one we're discussing. This goes a long way toward explaining how Yoo manages to get the party nomination procedure confused with the actual election: If there's only one party, then that party's nominee becomes the only candidate in the general election and wins by default.

The political party formed by Jefferson and Madison, in opposition to the Federalist Party of Adams and Hamilton, was called the "Democratic-Republican Party". At the time, in most places they were commonly called "Republicans" for short, but in some other places they were called "Democrats". To avoid confusion, most historians now use the full name. As a historical matter, Yoo is correct in calling them the "progenitors of today's Democrats", but there have been so many twists and turns since then it's silly to imagine any ideological continuity.

After Jefferson's second term, the party was so strong that it dominated government. The Federalist Party still existed, but it was fading. When Jefferson chose not to run for a third term, the party's nominee was chosen by the party's congressional caucus. That is, all the members of Congress belonging to the Democratic-Republican Party (which was most of them) got together and voted on a nominee. This was "King Caucus". Because at the time one party was dominant and that party's nominee was a commanding favorite to win the election, the result looked a lot like Congress choosing the president, exactly what Yoo (and the founders he quotes) warns against.

It's important to note that the caucus did not actually choose the president. The caucus chose the Democratic-Republican Party's nominee. That nominee then became a candidate in the general election, which was held according to the standard constitutional procedure. As it happened, that nominee won handily, but there was nothing about the nominating procedure that prevented any other qualified candidate from running in the election, nor to prevent electors from voting for whomever they preferred. Indeed, King Caucus did not even prevent other Democratic-Republicans from running even without the party nomination. In 1808, George Clinton, whom the caucus chose as Madison's running-mate, also put himself forward as a presidential candidate and won his home state of New York. The Federalist Party, in decline but not dead yet, also had a candidate that year (Charles Pinckney), the last time the Federalists officially nominated a candidate.

In 1812, the caucus again chose Madison as the party's candidate, but there was significant dissent. Madison's opponents supported DeWitt Clinton (George's popular nephew), who also ran. The Federalist Party, chastened by its failure in 1808, declined to nominate one of its own. Although the Federalist Party did not officially endorse Clinton, many local Federalist branches actively supported him. (As a result, DeWitt Clinton is often mistakenly labeled the Federalist candidate, but he was not; he remained a Democratic-Republican.)

In 1816, the Democratic-Republican caucus nominated James Monroe. The Federalist Party again did not choose a nominee, but Federalist Rufus King ran as a candidate and won a few states. In 1820, Monroe was the only candidate, the only presidential candidate other than George Washington to run unopposed.

That brings us to 1824, the year in which King Caucus collapsed. America was essentially a one-party state. The Federalist Party had faded into non-existence and only the Democratic-Republicans remained. If the party could unite behind a candidate, that candidate would run unopposed, as Monroe had.

But the party could not unite. Going into the election year, there were six leading candidates. Primary elections had not been invented yet. The only means for choosing a nominee was the national caucus. All six of them knew whom the congressional caucus would choose, and thus the other five agitated against the caucus. The proffered rationale was that the caucus was unrepresentative and contrary to the spirit of the Constitution, rather like what Yoo argues. That may be true, but the real motive for ending the reign of King Caucus was purely political.

When it came time for the congressional caucus to meet, about three-fourths of the members boycotted it. The remainder nominated their favorite, William Crawford, in spite of the fact that he had recently suffered a stroke and was in poor health. (Crawford was a former senator from Georgia. He had served in several cabinet positions during the Madison and Monroe presidencies and was endorsed by former presidents Jefferson and Madison.)

The caucus nomination was ignored by the other candidates. Of the six, DeWitt Clinton declined to run again, while John C Calhoun made a tactical retreat and declared his candidacy for the vice-presidency instead (which he won easily, being unopposed for that office). The other three defied the caucus nomination and ran anyway, resulting in the famous four-way race between Crawford, John Quincy Adams, Andrew Jackson, and Henry Clay.

This election, more than any other, was as the U.S. Constitution envisioned: There were no political parties; there were no primary elections (which have no basis in the constitution, by the way) -- just the four leading politicians each running as an individual, competing for the support of electors in the electoral college. The result was a deadlock. None of the four won a majority, and thus the choice fell upon the House of Representatives, as specified in the constitution.

This brings us to Yoo's most glaring factual error. He says that Clay "threw his electors behind John Quincy Adams". This makes no sense whatsoever. Once again, Yoo is confusing the general election with a party's nominating procedure. Obviously he is thinking of a brokered convention. If the four candidates were candidates in a party primary, they would each bring their share of delegates to the convention. If none had a clear majority, a deal could be made whereby one candidate instructs his delegates to vote for another candidate. This sort of thing happened frequently in elections from about 1868 to 1932. Every four years, pundits fantasize about one part or the other having a brokered convention, but it rarely happens any more. The most famous "brokered convention", the Republican convention in 1920 gave us the phrase "smoke-filled room". That Yoo uses that phrase earlier in the column is a hint of his confusion.

How Yoo manages to make this mistake is hard for me to imagine. In the sentence that immediately precedes, he just got finished saying that the choice went to the House of Representatives. If that's true, then how the heck do Henry Clay's electors make a bit of difference? The answer is they don't. The 12th amendment is clear on this point. When no candidate wins a majority of the electoral college, the House of Representatives is called upon to choose from among the top three candidates. However, this vote is done by state: that is, the majority of each state's congressional delegation determines how that state votes, and the candidate who wins a majority of states becomes election.

Of the four candidates, Clay had the least electoral votes (though he had more popular vote than Crawford), so Congress was asked to choose from among the other three. Naturally, there was interest is whom Clay would endorse, but his share of electors in the electoral college was of no relevance to the House of Representatives. As a member of the House, Clay controlled one of 14 votes for his home state of Kentucky. Beyond that, his only power was his persuasion as a leading politician.

Clay's choice of whom to endorse was not in much doubt. Adams' political positions were closer to Clay's than were the other candidates', and besides that Clay personally despised Jackson. It is only because Clay was initially coy that questions were aroused at all. Perhaps because he hoped for concessions or perhaps because he wished to appear open-minded, he declined endorse Adams right away. Instead, he took time to listen to overtures from Jackson and Crawford ... and then he gave his support to Adams. This did not mean "releasing his votes" or "throwing his electors" to Adams as is suggested by Yoo (as well as several other careless sources); it simply meant Clay's endorsement was considered by House members in their decision (which probably did swing a couple of states in the West).

This brings us to Yoo's last misstatement, about the "corrupt bargain". It is true that Clay was later appointed secretary of state by President Adams. It's also true that many suggested there was a quid pro quo whereby the appointment was promised by Adams in exchange for his support; this was widely reported and believed by Jackson's partisans leading up to the 1828 election, but there's no proof of it. Clay vehemently denied it. When it was first suggested (prior to the election) by another Congressman, Clay challenged him to a duel. Clay also demanded an investigation, which the House dismissed on grounds that there was nothing to investigate.

I'm not denying that there was a quid pro quo. We have no way of knowing. I'm just saying that given that there's no evidence for it and it was categorically denied by the person in question, it's irresponsible for Yoo to state it as if it's established fact. (Some historians have suggested that the opposite was true: Jackson offered the appointment of secretary of state to Clay, and Clay declined the offer.)

Even Clay's support was not enough to secure the election for Adams. There were 24 states in the union at the time. After Clay's endorsement, Adams had the vote of 12 of them, one short of a majority. Seven states supported Jackson, and four supported Crawford. The remaining state was New York, whose delegation of 34 was evenly split; 17 supported Adams, 15 supported Crawford, and 2 supported Jackson. Adams' supporters identified Crawford supporter Stephen Rensselaer as the most persuadable. Pressure was exerted upon him and he gave in. On the first ballot Rensselaer voted for Adams, giving Adams 13 states and the presidency.

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