THE ELECTORAL COLLEGE AND DIRECT ELECTION FRIDAY, JULY 22, 1977 U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, Washington, D.C. The subcommittee met, pursuant to notice, at 9:10 a.m. in room 235, Russell Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding. Present: Senator Hatch. Staff present: Nels Ackerson, chief counsel and executive director; Marcia Atcheson, counsel; Kenneth L. Foran, minority counsel; and Linda Rogers-Kingsbury, chief clerk. Senator BAYH. The hearing will come to order. Our first witness this morning is Prof. Herbert J. Storing, Robert Kent Gooch professor of government and director of the Program on the Presidency at the University of Virginia. We appreciate your being with us this morning. Please proceed. TESTIMONY OF HERBERT J. STORING, ROBERT KENT GOOCH PROFESSOR OF GOVERNMENT AND DIRECTOR, PROGRAM ON THE PRESIDENCY; WHITE BURKETT MILLER, CENTER OF PUBLIC AFFAIRS, UNIVERSITY OF VIRGINIA, CHARLOTTESVILLE, VA. Mr. STORING. Thank you, Senator. I have prepared a statement which I would like to request be put into the record. Senator BAYH. It is so ordered. Mr. STORING. I want, basically, to make three points. I will communicate what those are and then try to elaborate on them briefly and then give way to others or to questions. In the first place, it seems to me that the case for direct popular election of the President, which is the form of the amendment that I am principally concerned with, rests on a simplistic notion of American democracy-a notion that is contrary to our tradition, that is unsound, and that is dangerous. Second, I think that the present constitutional system of electing the President supports a mode of Federal politics characterized by our two great State-based political parties that secures, to a very great extent, the benefits we want in an electoral system. And, third, the alleged danger to democratic legitimacy arising from the present electoral college system and the alleged superiority of direct popular election in fostering legitimacy are, I think, false. Regarding the first of these points, in some ways I, at least, am more worried about the reasons given for direct popular election of the President than about the proposals themselves. These reasons, it seems to me, are rooted in what I would call simplistic democracy. I think for our purposes that simplistic democracy has two elements. First, it assumes that government is good just so far as it is responsive to public wishes. The business of government, in this view, is simply to do what the people want. The second element of simplistic democracy is that so far as elections are concerned, the only thing that counts is that the individual wanted by most of the people should be elected. For any other consideration to enter in is regarded as unfair and improper. This view, as I've said, I think is wrong and harmful. The proposal for direct popular election of the President seems to me to grow out of this simplistic democracy, to a very large extent; and its adoption would, I think, strengthen it. Now the question is not whether responsiveness is important and necessary. Everyone agrees that it is. But the great architectural principle of our Government, as it was understood by its framers, is that popular responsiveness is necessary but not sufficient. There are other qualities we want in government, such as competence, stability, and sensitivity to individual and minority rights which may sometimes be at odds with responsiveness. The great genius of the American Government is the way it seeks to achieve these other qualities in a government that is, at the same time, basically democratic or responsive. One of the most powerful results of the adoption of direct popular election of the President, it seems to me, would be to tend to strengthen this notion of simplistic democracy-this notion that responsiveness is all that counts. It is perfectly true that one could grant all I've said so far and still say, correctly, that that doesn't settle the question of electoral reform. It does, however, dispose of what has in fact been the main argument or assumption of the advocates of direct popular election; namely, that any incidence of nonresponsiveness, such as, for example, the election of a President who did not have a popular plurality, is necessarily bad. But is there a positive case for the present constitutional system? I come now to my second point. I think there is a positive case, although it's a complex one. It is, therefore, a case that those who seek simple answers to our political problems tend to be impatient with. I know you've had much testimony on this whole question. I cannot, and will not, try to cover this whole ground; but I want to emphasize a couple of points in defense of the present constitutional system for electing the President. The first one is a rather theoretical point, but I think it's terribly important. It is this: To see the value of the present system, it is necessary to shift one's perspective from the question of electoral input to the question of electoral output. Most of this discussion, I think it's fair to say-especially from the proponents of direct popular election-has been concerned with the question of input: who votes, the way to vote, and matters of that kind. I know that our framers did-and I think that we ought also toconcern ourselves with the question of the product of any electoral system. An electoral system is a means to serve the ends. In order to judge the electoral system, then, we have to try to think of what are the ends we want to accomplish and whether this or that given electoral system is likely to accomplish it. One of the main ways to strengthen this whole discussion of proposals for reform would be more focus on results and more focus on output, rather than merely a focus on input.. If we ask the questions, then, what is it we want out of an electoral system for electing the President? What kinds of things do we want to achieve? Our framers provide us with some very useful guidance. I would summarize the ends of the system of electing the President, as the framers generally saw them, as something like the following. Remember, what I am now trying to establish is a set of ends against which this or that proposal for electing the President might need to be judged. Here is what I think the framers would have thought were appropriate ends. They seem to me to be altogether pertinent and appropriate today. First, it should provide for significant participation by the people at large. Second, it should foster political stability and avoid the excesses of partisanship and factionalism that tend to form around important elections. Third, it should give some special place of influence to some individuals who are especially informed of, and committed to, the process of government. Fourth, it should recognize that this is a Nation of States and should give some weight to the interests of States as such. Fifth, it should leave the President independent of any other institution of government, so far as his election is concerned. Sixth, it should, of course, tend to produce Presidents of respectable character and intelligence. It is very hard to say precisely how a change to the direct popular election would effect these ends. In particular, it's hard to say how a change in the constitutional system for electing the President would affect the way our present two-party system works. It is that two-party system through which most of these benefits are achieved-the extent that they are achieved-today. My own feeling is that that very difficulty is a good reason for being cautious about introducing changes the consequences of which are difficult to foresee. Without claiming that this is by any means the last word on this matter, my own judgment would be that the probable effect of changing to a direct popular election of the President would be in the direction of weakening, or further weakening, our traditional two-party system. The tendency of minority groups to go directly into Presidential politics, either in hopes of influencing a runoff election or with the intention of bargaining for other advantages or even to provide an organizational focus for interest group activities of a fundamentally nonelectoral kind, seems to me very likely to increase under direct popular election. Similarly, the role of the States-and specifically the State party organizations, already weakened in various respects seems likely to be further undermined. Direct popular election of the president would, I think, foster a more open, volatile system of national politics, less rooted in State political organizations, less influenced by professionals or quasiprofessionals, dominated by shifting personal alliances of nationally oriented personalities, by ideologies, by interest group spokesmen, and by media specialists. We could anticipate, I think, a political system pulled in one direction toward fragmentation and public, rather than intraparty, factionalism. And pulled, in the other direction, toward plebiscitory unity-rooted not in party organizations but in an individual President's personality and personal standing. The present system, as it works, does, it seems to me, provide us with the kinds of benefits that we want out of an electoral system reasonably satisfactorily. Nobody is going to claim that it's perfect. In all probability, it is better than a direct popular election would be. Finally, however, to come to what I think is the trump card of the proponents of direct popular election-and my third pointthere is the question of legitimacy. Wouldn't it be an intolerable strain to the American political system, giving rise to popular outrage and contempt, if it should happen, as it doubtless will happen, that sometime again a man with fewer popular votes than his opponent is the electoral winner? I doubt it. I would expect, under such a situation, for business to proceed in American politics pretty much as usual, unless there was some other reason for loss of confidence in the Government or in the persons in charge of the Government. The idea that election of a President with less than a plurality of popular votes would be shocking and deeply disturbing to our system rests, I think, on a shallow notion of what political legitimacy is all about. Legitimacy depends on much more than mere numerical preponderance. Legitimacy depends, for one thing, on tradition. For all the criticisms that are leveled against it, the electoral college system is very much a part of the American political tradition. Legitimacy depends also on the possession by Government of those other qualities that the framers sought to provide for: competence, stability, diverse representation, and equity. I think the doctrine of simplistic democracy tends to endanger that. The present constitutional system for electing the President can be explained and popularly understood for what it is: a method of election that secures rather well the variety of benefits that the American Government is designed to secure-federalism, social diversity, governmental competence, stability, and fairness to individuals and to minorities. Moreover and this is my final point-reliance on numerical preponderance will turn out to be much more problematical, I suspect, than it seems to be on its face. Factional victory is likely to be more open and more harsh. Elections are almost certain to be much closer. They will certainly seem much closer than the present system, with its tendency to inflate the margin of victory. Whatever combination of plurality and runoff elections might finally be agreed upon, there would nevertheless be a fairly good probability that popular participation in the ultimate choice would decline. The very emphasis, moreover, on numerical preponderance would highlight the probable fact that most victors would be individuals who were not preferred by most voters. The present system for electing the President does have what could be called legitimacy problems, though part of the reason for that is that it has, on the whole, been so poorly defended by those who ought to defend it. But these difficulties are likely to seem minor compared to the legitimacy problems that would arise out of a series of very close elections, bitterly fought by numerous narrowly based parties contending for the prize of numerical majority, which would be the only real claim to legitimacy and which would yet be forever out of reach. The case against the present constitutional system for electing the President remains, I think, what it has always been-superficially plausible and appealing, but fundamentally unsound and unpersuasive. Thank you very much. Senator BAYH. Thank you, Professor Storing. None of us really knows how a direct election of the President would work, do we? Mr. STORING. I think that's fair to say. Senator BAYH. You made some rather dramatic, assertive statements in offering your opinion on how direct election will work. What reason do you have to suggest participation is apt to decline? Mr. STORING. My guess would be Senator BAYH. We need more than a guess, professor. Mr. STORING. We may not be able to have anything more. Senator BAYH. Is there any evidence that participation in the State elections declined when we started choosing Senators by popular vote? Mr. STORING. I think there's evidence that when we get into runoff elections, there's a decline in participation. The likelihood is that we're going to have runoff elections. Senator BAYH. How many times in history would we have had a runoff if the procedures espoused in Senate Joint Resolution 1 had been in effect? Mr. STORING. Obviously, not a single time. Senator BAYH. One time, technically, in 1860 when Lincoln had 39.76 percent of the popular vote. Mr. STORING. That was a different procedure than the one proposed here. Senator BAYH. Yes. I assume then that your original answer that runoffs would be likely and therefore that participation would decline was inaccurate. I'm sure you've studied the process and talked to people who have actually participated in it. The former Vice-Presidential candidate on the Republican ticket |