When viewed in terms of results, as well as in terms of capacity to attract the respect and loyalty of the American people, the existing system, while surely imperfect, appears to be far superior to any form of direct popular election of the President.

Senator BAYH. Our next witness is Prof. Martin Diamond of Georgetown University.

TESTIMONY OF MARTIN DIAMOND, PROFESSOR OF GOVERNMENT, GEORGETOWN UNIVERSITY, WASHINGTON, D.C.

Mr. DIAMOND. Thank you.

I have written, and it has been recently published, a booklet on the issue we are discussing this morning. It is entitled "The Electoral College and the American Idea of Democracy."

I submit that as my prepared written statement to the committee and hope that it will be incorporated into the record.

Senator BAYH. It is so ordered.

Mr. DIAMOND. If I may, I will make a very brief summarizing oral statement to put forward the lead ideas which the committee may wish to have.

Senator BAYH. Professor, I went through your book with great style until I got to the last sentence. Then I had to find out what paradigm meant.

Mr. DIAMOND. And how did you make out? [Laughter.]

Senator BAYH. I had no reason to dispute Webster's definition. Mr. DIAMOND. Did you find it a useful word in the context? I'm just trying to see if I got a passing grade.

Senator BAYH. It accurately describes your interpretation of the purpose of the electoral college.

Mr. DIAMOND. I thank you for the passing grade.

Senator BAYH. I am used to being the gradee instead of the grader.

Mr. DIAMOND. I've been sitting in the on-deck circle as the previous battle was going on watching you work the corners and I discovered that I'm going to be the gradee this morning myself.

Senator BAYH. I think the country will probably grade us both. Mr. DIAMOND. It seems to me that it is something of a puzzle that the electoral college comes under so severe an attack. It has produced for us nearly 200 years of tranquil democratic elections. It has produced for us, in comparison with every other democratic political system, 200 years of effective political campaigning, of unambiguous outcomes-in comparison to those of any other system with which I'm familiar of tranquilly, legitimately accepted out

comes.

Moreover, it has been a dynamically adaptive system during the course of that nearly two centuries of its use. It has adapted to the constant changes and developments as America emerged into modernity.

Having worked so well for so long, I find it puzzling that it should be the source of so strenuous an attack. Or the object, rather, of so strenuous an attack.

I have tried to understand what is the center and the gravamen and the weight of the attack. It seems to me that it comes down

to two related things, and I would like to deal with those two only in this oral presentation to the committee.

I suspect that part of what people have against the electoral college-not Senator Bayh, perhaps, or other Members of the Senate, but others around the country, others in the academic profession-part of what scholars have had against the electoral college is the fact that it is so old. They suspect the old. It must be archaic. It must be outmoded. How can anything devised so long ago, for a simpler age-how can anything so old-still be good in this unprecedentedly modern time?

I find that prejudice against the electoral college characteristic of at least academic hostility to the electoral college-if not the political outcome.

Senator BAYH. Excuse me. You have read a lot more academic treatises on this subject than I suppose I have. Could you cite me one or two where that's the basic thrust of the argument?

Mr. DIAMOND. I don't know that I could do that at this instance, but I would be happy to supply that information to the Senator. I believe you will find in James Burns' Deadlock of Democracy, perhaps, there is some indication

Let me give you the analysis of it: It is that the electoral college was devised in an elitist, undemocratic time by elitist, undemocratic thinkers for purposes of a simpler, agrarian, premodern age and is outmoded.

I will give you one thinker, if I may be so bold.

Senator BAYH. Are you disputing the frame of reference of Professor Burns as far as the times in which the electoral college was proposed?

Mr. DIAMOND. Yes; I am. I make my dispute very clear, and I think I can do so very briefly.

Senator BAYH. I just have not heard anybody come before this committee and say the reason they want to get rid of it is because it's been around for 200 years. Period.

Mr. DIAMOND. Let me remind you of Herblock's cartoons on the subject.

Senator BAYH. What State does he represent? [Laughter.]

Mr. DIAMOND. He, like myself, represents his effort to think about the subject.

I didn't know that representing a constituency was relevant to the discussion of the merits. It is relevant to deciding.

You, sir, will decide. I will not. But I did not know that representing a constituency was relevant to the discussion.

Senator BAYI. It certinly isn't and, hopefully, never will be. The only reason I raised the point is that I have been studying this problem for about 10 years, and never have I had one witness-nor have I read any treatise that says the reason he or she wants to get rid of the electoral college is that it's old and, therefore, per se, we should change it.

I would like to have any information that you have where there is a treatise that says that old, per se, is bad. If that's the case, I'm going to worry about the number of years I have left. I don't know how many there are, but I'm getting older instead of younger. And so, per se, I'm getting worse. That may be the case, but IExcuse me for interrupting.

Mr. DIAMOND. I don't propose to find support for that statement, because I didn't make it.

I didn't say anyone said old, per se, is bad. What I said was: In the academic literature on the subject, there seems to me to be a prejudice against the electoral college because of the progressivist assumption that anything so old cannot any longer still be adequate. That I can support. I can show it to you in literally dozens of textbooks on American Government.

I repeat my use of Herblock as an example of that. Herblock is the cartoonist who was used to illustrate the obsolete, antiquated character of the electoral college. He appears, in his cartoons, as an old fuddy-duddy in colonial knee britches and powdered wig with an ear trumpet, saying: "Don't expect me to get this right, bub." The image of antiquated, obsolete, and outmoded is crucial to the prejudice of people against the electoral college.

Senator BAYH. You're playing with words. If you want to say "old," that's one thing. If you want to say "archaic" or "outdated," those are entirely different words.

Mr. DIAMOND. May I supply you with a source that you are thoroughly familiar with-the American Bar Association Report of 1969.

Senator BAYH. The report uses the word "archaic" and not "old." Mr. DIAMOND. Yes. And it says "outmoded."

Its argument is exactly as I gave it to you, Senator. Devised for an earlier time. No longer adequate.

Senator BAYH. I don't think we should beat this to death, and maybe we already have. That is different than saying that being old is prejudicial against it. I haven't heard any scholar who said that because it's old it's bad. They say times have changed and they're different now than they were, and you may argue that that's not the case and I might hear that argument if you believe that times and circumstances have not changed. But excuse me for interrupting in the first place.

Mr. DIAMOND. I believe there has been a tendency on the part of the scholars, and perhaps even of politicians, to regard the electoral college as the product of an old and archaic and outmoded and bygone era.

I will try, by encompassing all the terms, to get us over our difficulty.

And that prejudice has worked to the disadvantage of the electoral college.

I believe far from being an old and outmoded instrument it is, on the contrary, a very model-I hesitate to use the word "paradigm" of a first-rate constitutional mechanism and provision; namely, one which is old to which the people are habituated. And that habituation is a major source of legitimacy and an invaluable ingredient to free government.

It is a model constitutional provision which is old and dynamically adaptive, which in every election has proven itself demographically responsive to changing conditions.

It's a new ball game, as you know better than I, in every Presidential election; because the electoral college adapts itself and historically has evolved in response to the growth and changing political, social, and economic characteristics of the country.

That much said on the problem of its archaicism. Let me proceed to what I think is the second point I wish to make and what I think is the most important objection made to the electoral college and the one that must be dealt with firmly.

It is the idea that the electoral college holds an undemocratic potential; that it is possible that a man would get elected under the electoral college system because he has more electoral votes but will have had fewer popular votes than those of one of his opponents.

This is the discrepancy that Senator Kefauver called the "loaded pistol to our heads." It is this discrepancy-the possibility that a candidate with fewer votes will win the Presidency because of having won the electoral college but not the popular vote.

That is the thing that must be dealt with if the electoral college is properly to be defendable.

Let me point out that that discrepancy between popular vote and winning seats, or winning elections, exists in every districted system of election.

Let me start further afield. It exists in England, which many scholars and many politicians admire for its parliamentary system. Under the English districted system-that is to say, the prime ministry-a ministry chosen by the party and formed by the party that has won the majority of seats in that British parliamentary system, the party with the minority of the popular vote has frequently formed the government. It is the inevitable consequence of there being a discrepancy between winning seats in a districted system, or electoral votes in an electoral system, and winning raw popular votes.

It happened as recently as 1974 the present Labor government having been a minority in the popular vote but having won a majority of the seats.

If one is to avoid the discrepancy between electoral votes or seat votes or district votes and popular votes, one must rid oneself of every vestige of districting or any other electoral device.

That is the cost of the system which is now being proposed in place of the existing electoral college system.

I believe that the districted basis of election-wards in cities, to permit responsiveness to minorities; counties in States; and States in the American Federal system-I believe that the preservation of that districted basis of election is invaluable to a free democracy such as ours and is by and large preserved in most of the Western democratic countries.

Now let me switch to a second aspect of this problem of the discrepancy between the popular vote and the electoral vote.

The amendment you propose, sir, is called direct election of the President. Perhaps you will permit me to say that that is a misnomer-certainly misnamed if I am right in my criticism, with the best of intentions and with the best of rhetorical effect-but a misnomer nonetheless.

The President is now elected directly, in my judgment. There is now in the election of the President under the electoral college system one-man one-vote. The man with the most votes wins. But it is federally democratic.

The only effect of the proposed amendment will be not to increase the democracy of the election or the directness of the election but the pure nationalness of the election.

The sole practical effect of the amendment will be to eliminate the States from their share in the political process.

We now have, in Indiana and Illinois and every State of the Union, one-person one-vote-winner take all. The pure direct democratic principle for winning in each State. The election of the American President cannot be made more directly democratic. It is being proposed to be made more directly national.

When the issue is put on national versus Federal. I believe the electoral college may be defended with comfortable conscience-not only good, but comfortable conscience.

It is a means of preserving Federal democracy, or a Federal element in the electoral process.

At the Federal convention, the Constitution makers, after thorough-going dispute, agreed with the process of give and take and of compromise to include the States in the process of selecting the President of the United States.

In my judgment, that has proven invaluable in this centralizing age. When all forces tend to homogenization and centralization, we have a saving remnant of decentralization in the Federal aspect of the election of the American President.

Regarding that Federal aspect, let me end with this comment

It may be asked, and I have heard proponents of the so-called direct election of the President make the point, why the President of all the people should not be chosen in a straight, national vote by all the people. He is, after all, our chief, single, national executive officer.

I would answer in the language of the Constitution and of The Federalist. He is not our chief national executive officer. The President of the United States is our chief Federal officer. And that is what has been forgotten by some of the proponents of the so-called direct election of the President.

The President is a Federal and national officer. Like the Senate of the United States, he has Federal and national characteristics in his mode of composition and selection. Like the House of Representatives, he has Federal and national characteristics in his mode of choice and in operation.

The Constitution created a compoundly State and national system and built the States partly into the choice of national lawmakers and of the national executive.

The sole constitutional effect of the proposed amendment is to defederalize and nationalize the election of the President. I regard that in this age, when our decentralized Federal system has proved so manifestly of value to us, as a dangerous change and an unwarranted one.

That, when added to my written submission to the committee, suffices on my part for an opening statement, sir.

Senator BAYH. I appreciate your taking the time to be with us. I found your book an interesting study which makes different assessments and reaches different conclusions than my own.

By no means does that lessen the importance of it and consideration of it.