WASHINGTON -- As poll after poll indicates that Ross Perot will be a serious factor in the presidential election of 1992, a juicy irony looms on the political horizon: Congress, held in about as low public esteem as ever, could replace the popular will with its own and choose the next president or vice president, or both.
If in a three-way race in November no presidential candidate achieves 270 electoral votes -- a majority of the electoral college -- the 12th Amendment to the Constitution stipulates that the names of the top three finishers will go before the House of Representatives, with each state delegation casting one vote only and 26 votes, a simple majority, required for a decision.
Under this procedure, any of the three expected contenders -- George Bush, Bill Clinton or Perot -- could be named president, regardless of the popular or electoral-college vote. For instance, if Bush ran far ahead in the popular vote and got 269 electoral votes out of 538 cast, Perot 268 and Clinton the remaining one -- which certainly wouldn't happen -- the House could, if it chose to, select Clinton anyway.
At first blush, it would appear that as long as the Democratic Party retains control of a majority of the state delegations in the House -- it now holds 31 to 10 Republican (with 8 even and one independent) -- Clinton would be chosen on a straight party line vote. But the newly elected House will vote and there could be changes, though not likely enough to put the Republicans, and Bush, in the van.
But what if Perot carries a Democratic House member's district or state? Would party discipline hold, or would he or she accede to the popular will and vote for Perot? More than simple party discipline -- the prospect of having the White House and Congress in the hands of the same party and breaking the existing split-party gridlock -- could, however, keep Democrats on the reservation for Clinton.
If no presidential nominee wins an electoral-vote majority, in all likelihood neither will any vice-presidential candidate. If that happens, the names of the top two finishers will go before the Senate, with each of the 100 senators casting a vote and a majority needed to win. Under this scheme, a running mate other than that selected by the president-elect could be chosen.
What if the House fails by Inauguration Day to pick a president? Assuming the Senate has chosen the vice president, he becomes acting president until the House does make a choice. If the Senate hasn't made a choice by Jan. 20, existing law stipulates that the Speaker of the House becomes acting president until the House acts -- if it does before the next presidential election.
The selection of the president has gone to the House twice: after the 1800 election, when Thomas Jefferson and Aaron Burr were tied in electoral votes and the House after 36 ballots chose Jefferson, and after the 1824 election, when the candidate who had finished fourth in electoral votes, Henry Clay, threw his support to the candidate who had finished second, John Quincy Adams, and Adams was chosen over the candidate who had finished first but short of a majority, Andrew Jackson.
In 1876 when Samuel J. Tilden won the popular vote but fell short of a majority in the electoral college, disputes over electors in three states were turned over to a commission of House and Senate members and Supreme Court justices. They were resolved in Hayes' favor and he was declared the winner in the electoral count before a joint session of Congress.
Only once has the Senate been called on to select the vice president, after the 1836 election, when President-elect Martin Van Buren's Democratic running mate, Richard M. Johnson, was deserted by Van Buren electors from Virginia and fell one vote short of a majority. The Democratic Senate easily chose Johnson over Francis Granger, the Whig candidate.
The irony in the present situation is that the Perot phenomenon is building in large part on the perception of gridlock in Washington, with Capitol Hill as well as the White House at fault. Yet it could be that his candidacy will put in the hands of Congress the decision that Perot has so dramatically called on Mr. and Mrs. Average American to make.