THE ELECTORAL COLLEGE AND DIRECT ELECTION

WEDNESDAY, JULY 20, 1977

U.S. SENATE,

SUBCOMMITTEE ON THE CONSTITUTION

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 8:45 a.m., in room 1202, Dirksen Senate Office Building, Hon. Birch Bayh (chairman of the subcommittee) presiding.

Present: Senators Bayh, Scott, and Hatch.

Staff present: Nels Ackerson, chief counsel and executive director; Marcia Atcheson, counsel; Kevin O. Faley, general counsel, Kenneth L. Foran, minority counsel; and Linda Rogers-Kingsbury, chief clerk.

[The following statement was submitted by Senator Bayh rather than being read in order to conserve time for hearing witnesses.]

OPENING STATEMENT OF HON. BIRCH BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

Senator BAYH. The subcommittee will come to order. I am pleased to convene these supplemental hearings on direct popular election of the President as part of the final consideration of this matter by the Subcommittee on the Constitution and the Committee on the Judiciary. The Committee on the Judiciary has agreed by unanimous consent to vote on reporting Senate Joint Resolution 1 to the Senate on or before September 16. As we prepare for final consideration by the Committee on the Judiciary, I am happy to honor the request of my distinguished colleague from Virginia, the ranking minority member of this subcommittee, Senator William Scott, to have these supplemental hearings. Other members of the Judiciary Committee have joined in the request for these supplemental hearings, and I have invited all members of the committee to suggest witnesses. Senator Scott has agreed to work with all of the members of the Judiciary Committee who oppose Senate. Joint Resolution 1 and agree with them on the witnesses who should appear at these hearings to testify in opposition to the amendment. In addition, there will be witnesses appearing to testify in support of the amendment.

Senator Scott and I have agreed that as much as 8 hours of additional testimony will be taken during these hearings and that the hearings will be balanced between witnesses favoring Senate Joint

Resolution 1 and witnesses opposing Senate Joint Resolution 1. The hearings will be concluded next week. Following the hearings and before the August recess, the Subcommittee on the Constitution will proceed to consider Senate Joint Resoution 1 and all proposed amendments to it which subcommittee members wish to raise Senator Scott and I have agreed that deliberation by the subcommittee will be concluded before the August recess and that the draft committee report and draft minority views will be completed during the August recess for submission to the full committee upon our return in September. This time table will allow the full committee sufficient time to consider Senate Joint Resolution 1 and proceed to its final vote on the proposal on or before September 16, 1977, as agreed. Since the time of our last hearings on direct election, which were held before the Judiciary Committee in January and February of this year, there have been a number of substantial developments. President Carter has endorsed the direct election amendment, and he and the Vice President have included direct election as a part of the administration's election reform package. If there is no objection, I would like to enclose that part of the President's statement on his election reform package which deals with the proposed direct election amendment.

[President Carter's statement in support of direct election, released March 22, 1977, was marked "Exhibit No 1" and is as follows:]

[EXHIBIT No. 1]

DIRECT POPULAR ELECTION OF THE PRESIDENT

My fourth recommendation is that the Congress adopt a Constitutional amendment to provide for direct popular election of the President.

Such an amendment, which would abolish the Electoral College, will ensure that the candidate chosen by the voters actually becomes President. Under the Electoral College, it is always possible that the winner of the popular vote will not be elected. This has already happened in three elections, 1824, 1876, and 1888. In the last election, the result could have been changed by a small shift of votes in Ohio and Hawaii, despite a popular vote difference of 1.7 million.

I do not recommend a Constitutional amendment lightly. I think the amendment process must be reserved for an issue of overriding governmental significance. But the method by which we elect our President is such an issue.

I will not be proposing a specific direct election amendment. I prefer to allow the Congress to proceed with its work without the interruption of a new proposal.

Senator BAYH. Former President Ford also has announced his continuing support for direct popular election of the President. Since Senator Dole remains one of the leading spokesmen for direct election, all four of the major candidates in last year's election have endorsed the proposed amendment. Former President Ford delivered a strong statement in support of direct popular election on the floor of the House of Representatives in 1969 when he was a member of that body and its minority leader. If there is no objection, I would like to place a copy of his statement in the record of these hearings.

[Former President Ford's statement in support of direct popular election before the House of Representatives in 1969 was marked "Exhibit No. 2" and is as follows:]

[EXHIBIT NO. 2]

Mr. GERALD R. FORD. Mr. Chairman, there is a very high degree of unanimity, although it is not completely unanimous that we should do away with what I label as the archaic, outdated, outmoded method that we have been using for the last 180 years or thereabouts for electing the President of the United States.

Although there is this high degree of unanimity, there are differences of opinion-honest differences, between Members on both sides of the aisle as to which of three, basically three, methods we should turn to in selecting our President in the future.

I happen to believe, based on polls, and based on sentiment, that I have analyzed, that if the House in the final analysis has to vote "yes" or "no" on the direct or popular vote method of selecting the President, there will be more than two-thirds of the Members voting for this change in the Constitution.

I have some doubt that if we end up, in the final analysis, with the district plan or the proportionate method of selecting the President, there will be an adequate number, two-thirds of those present and voting, for this change in the Constitution. This possibility causes me some concern.

I should say at this time that I strongly favor the direct method of choosing the President of the United States. I support the committee bill.

But I should add this postscript: If we come down to the final vote and we have either the district or the proportionate plan as the alternative in place of what we now have in the Constitution, I likewise will vote for either one of those propositions.

Mr. Chairman, my interest in the method of selecting a President goes back to 1950 when we had a vote on this issue. But more recently, in 1967, I became very concerned about the possible constitutional crisis this country might face in 1968 with the emergence of a third party of some strength. The concern I had was that under the present method of selecting the President of this country, the world at large might well have been faced with the prospect of ourselves not knowing who the next President of the United States would be from November to January 20. This uncertainty, in my judgment, would have been harmful to the United States and detrimental to the world at large.

I made a speech before the Republican Governors in Florida on December 9, 1967, and pointed out at that time the possibility of the constitutional crisis in the 1968 presidential election. As we all know, that crisis almost arose. Fortunately, it did not. But in the process of studying the problem I went to the Library of Congress, read a good bit of the history of previous presidential elections, and I got the Library of Congress to take some of the important excerpts from historical works telling what had happened in this Chamber in 1800 and 1824, when the House of Representatives was called upon to make the choice for President.

As has been stated before in this debate, in 1800 there was a tie between Thomas Jefferson and Aaron Burr, and, I say parenthetically, both running on the then Republican ticket. The vote was 73 to 73. So the House of Representatives met in February of 1801, and between February 11 and February 17 35 ballots were taken by Members of the House of Representatives without reaching a decision. Finally, after much conniving, and I say with deference probably skulduggery, on the 36th ballot the decision was made. The person who really tipped the scales, according to history, was Alexander Hamilton. In reading the history I ran into a comment made by Alexander Hamilton which might be somewhat enlightening. He in effect was the leader of the Federalist Party. According to this historian, this is what Hamilton decided and tipped the scale for Thomas Jefferson:

"But Hamilton, in the unhappy role of choosing between two men he thoroughly disliked, differed with his party colleagues. There was for him but one choice. Burr was the 'Catiline of America.' a man devoid of scruples and possessed an inordinate ambition and the 'boldness and daring necessary to give success to the Jacobin system.' Jefferson at least had 'pretentions to character' though he was unscrupulous, not very mindful of the truth, and was a contemptible hypocrite."

That is what Alexander Hamilton said. Yet he voted for Thomas Jefferson, and how fortunate this decision was. But leaving that aside, the fact is the present system we are using today and have used from the day of the first presidential election is unsound. It takes away from the people the right to

make the choice and turns the role over to the politicians if there is no majority in the electoral college.

In 1824 we had another crisis. This time Andrew Jackson had 152,899 popular votes, John Quincy Adams had 105,321, William Crawford had 47,265, and Henry Clay had 47,087. Jackson was the person with the plurality. He did not have enough electoral votes. On this occasion again the decision came to the House of Representatives. On this occasion the politicians did not take 36 ballots to make the choice. They got together at the outset. I do not understand and history does not record precisely how they made the decision, but on the first vote John Quincy Adams, who finished second in the electoral votes and second in the popular votes, became President.

It is interesting if we go back to history again. Apparently the New York delegation was the key and apparently, according to history, Van Buren was the man who was most in favor of the deal that put Adams over the top. But let me read from one of the history books on the situation:

"Van Buren's weak point in New York proved to be General Stephen Van Renssellaer . . . As the vote was about to be taken (in the House of Representatives) Van Renssellaer bowed his head in prayer, seeking divine guidance. It came at once. On the floor in front of him was a ticket someone had dropped with the name of John Quincy Adams written on it. His startled eyes rested on the bit of paper. A few minutes later it was in the ballot box: New York had cast eighteen of its thirty-seven votes for Adams, and the New Englander was elected President by thirteen of the twenty-four states."

Any system that relies on this kind of decisionmaking in this kind of constitutional crisis is wrong. It ought to be changed.

Now, starting from there, I think we ought to take a look at the alternatives. As I said initially, on the basis of the merit, on the basis of the substance, I am for the direct election. Furthermore, I think it is politically the right thing to do.

In 1950 those of us who were here at that time had a choice whether to vote for the proportionate method. It was called the Lodge-Gossett proposition. It had passed the other body by the necessary two-thirds vote, and it came to this body, where we had a debate. Unfortunately we did not get the two-thirds vote, Regrettably the method of choosing the President was not changed at that time.

I voted for the proportionate system in 1950. When this matter came up on the public agenda again in 1968, it was discussed and it was written about, and my initial sympathies were for the proportionate method. Since then I switched to the direct method.

The American Bar Association, through a very outstanding committee, came forth with this analysis and its recommendation for the direct method of selecting the President. I have a copy of it in my hand. It is a very persuasive document. It is well reasoned. I think it is completely sound and in my honest opinion it is the format we should use in writing this change in the Constitution. The CHAIRMAN. The time of the gentleman from Michigan has expired. (By unanimous consent, Mr. Gerald R. Ford was allowed to proceed for 5 additional minutes.)

Mr. GERALD R. FORD. Mr. Chairman, I hope all Members have taken the time to read this document. It was an outstanding group that worked on it. They represented the political spectrum from the far left to the far right.

In my judgment, it is a sound recommendation that we should follow. The Committee on the Judiciary of the House, by an overwhelming vote, has in effect adopted the plan recommended by the American Bar Association study group.

We are also familiar with the wide range of organizations from all over the land that have endorsed the committee recommendation.

The question has been raised by some: What does the President of the United States recommend? I have in my hand the President's message that came to the Congress February 20, 1969. Let me quote from that message if I might. The President says:

"I have not abandoned my personal feeling stated in October and November 1968, that the candidate who wins the most popular vote should become President."

The President goes on to say, and again I quote:

"I have in the past supported the proportional plan of electoral reform. Under this plan the electoral vote of a State would be distributed among the candi

dates for President in proportion to the popular vote cast. But I am not wedded to the details of this plan or any other specific plan. I will support any plan that moves toward the following objectives: first, the abolition of individual electors; second, allocation to Presidential candidates of the electoral votes of each State and the District of Columbia in a manner that may more closely approximate the popular vote than does the present system; third, making a 40 percent electoral vote plurality sufficient to choose a President." Then he goes on, and again I quote:

"Next, I consider it necessary to make specific provisions for the eventuality that no presidential slate receives 40% or more of the electoral vote in the regular election. Such a situation, I believe, is best met by providing that a run-off election between the top two candidates shall be held within a specified time after the general election, victory going to the candidate who receives the largest popular vote."

The net result is, in my judgment, the President of the United States endorses substantially-substantially-the recommendation of this committee of the

House.

Let me make one other observation. I know there are some of the most conservative Members of this body on both sides of the aisle who are apprehensive about the direct election procedure. For the benefit of those who feel that way, who served in this body with Ed Gossett, they know very well he was one of the most able, and probably one of the most conservative, Members in the House of Representatives during his many terms of office. He was highly respected by Members on my side of the aisle, and I believe equally by those on the other side, whether they were conservative or liberal. Ed Gossett, who is now a practicing lawyer in Texas, was one of the members of the American Bar Association study group that recommended the ABA plan, which is the direct method of selecting the President of the United States. Any conservative can follow Ed Gossett's recommendation.

Some Members in this body are apprehensive about the situation confronting the small State, the small State in population. One of the distinguished members of this ABA task force was the Governor of a State with a relatively small population, Oklahoma Gov. Henry Bellmon was on this group, and Gov. Henry Bellmon wholeheartedly endorses the American Bar Association plan, which is the direct method of electing the President of the United States. No one can challenge Henry Bellmon's dedication to Oklahoma or States of that size. Henry Bellmon believes after thorough analysis that this plan is in the best interests of the United States and does no harm to small States.

Now, Mr. Chairman, it seems to me that we are down to the final effort, because shortly we will vote as between the district plan and the direct election plan. It is my judgment that this is the real contest and the real ball game. Mr. Chairman, the allegation is made that the other body will not accept a direct method of selecting a President. I cannot prejudge that. In the Senate there is strong sentiment for direct election, and there are views that are contrary. The allegation is made that the State legislatures will not approve the direct method or that there will be a sufficient number that will block ratification. I cannot judge that, either, although I think the evidence that has been accumulated, the polls, clearly points out that State legislatures could very well ratify the direct method of selecting the President. Senator Robert Griffin, for one, conducted a survey which convinces me it is possible. I understand that the magazine The Nation's Business conducted a survey of State legislatures and their judgment is based on this survey, namely, that a sufficient number of State legislatures will approve the direct method of selecting a President.

Mr. Chairman, let me conclude with this observation: We have a responsibility ourselves to do what at least two-thirds of the Members of this body believe is forward movement, constructive movement, and meritorious change. When you put on the scales the present system and each of the three alternatives. in my honest opinion, the scales weigh most heavily for the direct method. The CHAIRMAN. The time of the gentleman from Michigan has again expired. (Mr. Gerald R. Ford asked and was given permission to proceed for 3 additional minutes.)

Mr. GERALD R. FORD. I think everybody agrees, based on the Gallup poll and based on individual questionnaires sent out by Members on this side and on that side, that the public, when they are given the choice between the present system and the three alternatives, in every instance I have seen has overwhelmingly voted for the direct method of selecting a President. In some of the