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What if the Twelfth Amendment were the same as OTL's *except* that it would provide that if nobody got a majority in the Electoral College, the House (with each state delegation having one vote) would choose the President from among the top *five* vote-getters (as with the original Constitution) rather than from among the top three?

In fact, there was considerable debate on this subject when the proposed Amendment came before Congress. The House favored a five-candidate choice:

"On 26 October, [1803] the House resumed debate on the amendment and formed the Committee of the Whole. Even though [John] Clopton [R-VA] again argued that the designation amendment [i.e, designation of which vote was for President and which was for Vice-President], with three, would best ensure that elections represent the public will, a critical number of Republicans preferred five, rather than three, as the number of candidates to be selected in the House. Perhaps some of these were more loyal to their institutional affiliation than to their party; with each option that was made available to the House, that chamber's importance would necessarily grow. On 27 October, [James] Elliott [F-VT] urged Republicans such as Clopton to compromise with the many representatives who were tenacious of five, in order to ensure that designation itself would receive enough votes. The argument for accommodation won the day, and the House voted 59:47 to replace three with five...

"In spite of [South Carolina Federalist Benjamin] Huger's argument against designation, the House voted 88:31 for the amendment and sent the amendment to the Senate, where debate on designation had already begun. It is important to note that House Republicans succeeded in passing the amendment proposal only by holding the number of candidates in the contingency election to five. Either loyalty to House prerogatives or fidelity to their own small states was enough to keep some Republicans from conferring a brighter majority halo on future presidents." Jeremy D. Bailey, *Thomas Jefferson and Executive Power* (Cambridge University Press, 2007), pp. 203-205.
http://books.google.com/books?id=mWu7GGgkDJUC&pg=PA203

In the Senate, Jonathan Dayton (F-NJ) tried to kill the Amendment by proposing that the vice-presidency be abolished altogether--an idea with which some Republicans agreed on the merits, but which the Republican leadership opposed as a distraction. Anyway, Dayton's proposal was rejected, and the Senate went on to debate the five-versus-three question:

"After William Cocke (R-TN) proposed to make the number 5 on 24 November with Dayton seconding the motion, John Taylor (R-VA) granted that the question between three or five now had put the discussion of the amendment in 'a more serious air than it at first assumed.' Taylor defended the amendment on the grounds that original intent required that presidential election be kept out of the hands of the legislature: 'By filling up the blank with five, you carry the election into the House of Representatives; and why do we wish to keep the election out of the House of Representatives? Because experience teaches us to beware the danger of diets, which are always exposed to intrigue and corruption...' Taylor added Clopton's argument that the presidential selection could unite public opinion: 'Limit the number to three, and you reduce the danger, and by condensing public sentiment, you will then have the watchfulness of ambition on one side and of virtue on the other, directed without distraction to the limited number.' Taylor's argument was important in that it connected the argument for independence from the legislature to popular selection...[T]he amendment had by then come to be seen as a reform aimed at popularizing the presidency. For Federalists, 'condensing' the popular vote around a designated candidate would weaken constitutional checks, including federative checks held by small states, on presidential power. For Republicans, the result would more tightly connect the results of the election to the eventual president.

"Taylor's confession that the discussion had become more serious confirms that the question of the relative influence of large and small states had directed debate toward the real object of the amendment. As John Quincy Adams noted, the Republican argument had changed from preventing an intended vice president from becoming president to an argument for popular selection as opposed to a selection by Congress..." Bailey, *Thomas Jefferson and Executive Power,* p. 208. http://books.google.com/books?id=mWu7GGgkDJUC&pg=PA208

The Senate accepted Taylor's argument, and voted for a choice among the top three rather than top five candidates, with three Republicans--Pierce Butler of South Carolina, John Condit of New Jersey, and Theodorus Bailey of New York--joining the Federalist minority in holding out for five. Condit and Bailey, however, joined the majority in voting for the final passage of the Amendment which passed with the bare two-thirds majority (22-10).

"For the amendment to be proposed to the states, Republicans in the House had to move to the Senate version rather than the other way around simply because some members of the Senate had left town. Consequently, House Republicans had to cobble together enough votes to accept the Senate's requirement that the eventual election be chosen from the three, rather than the five, highest vote getters. Despite a late attempt by one Massachusetts Republican (William Eustis) to break party ranks and insist on the provisions of the original House amendment, Republicans managed to convince a two-thirds majority that the small and large state question would not be the crucial political divide in the country. This time, House Republicans succeeded *without a vote to spare* (84:42)." Bailey, *Thomas Jefferson and Executive Power,* p. 211. [Emphasis added.] http://books.google.com/books?id=mWu7GGgkDJUC&pg=PA211

So let us take as our POD that the Senate Republican leadership, while preferring a choice of three, concludes that the important thing is to get *some* Twelfth Amendment passed and sent to the states in time for the 1804 election. It therefore acquiesces in the House version in the fear that a top-three-candidates amendment could not get the necessary two-thirds vote in the House (where indeed it would just barely pass with 84-42 as opposed to the 88-31 victory for the top-five-candidates version) or perhaps in the Senate itself (if Condit and Bailey would have threatened not to vote for final passage except of a top-five-candidates amendment).

What would be the consequences of this alternate Twelfth Amendment?

The obvious danger (from the Republicans' viewpoint) is that the Republican Party would (once Jefferson left office) have broken up into factions, each faction hoping that its presidential candidate, even if he had the support of only a small minority of the electorate, could prevail in the House after bargaining there (with Federalists gaining renewed influence by their power to choose which Republican they wanted). To some extent of course this would be a danger even with a top-three system, as the Monroe and Clinton candidacies of 1808 would show. But a system in which many regions or even states might run "favorite sons" in the hope of getting into the top five would increase the risk of an election going into the House. As in OTL, there would be an attempt to combat the danger by having the Republican caucus in Congress designate the party's candidate, but as in OTL there would be many objectors, and eventually the system would break down as it did in OTL in 1824.

Even if one assumes that the caucus system would work well enough to keep things as they were in OTL until 1824, in that year the revised version of the amendment would make a difference--Henry Clay would be eligible for the presidency in the House, and given his influence there and the fact that Adams men would likely see him as a lesser evil than Jackson, he might well be elected. But come to think of it, there might be even more presidential candidates in this alt-1824 than in ours--Calhoun might decide to run for president as well (in OTL he decided it was hopeless and settled for a vice-presidential candidacy instead)...

Any thoughts?
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