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Mr. Chairman, I am going to have to depart the committee room because of an appointment in my office. I am grateful to you for your patience.

Senator BAYH. Well, I appreciate

Senator HRUSKA. And I thank the witnesses, too, for their very helpful discussion.

Dr. ASHMAN. Thank you.

Senator Bayu. I appreciate Senator Hruska's taking his time to be with us. As one of the most conscientious members of our subcommittee, we appreciate having your advice and counsel and comments.

Gentlemen, you have been very patient. The hour is fast approaching 4:30. We have had you on the griddle for almost 2 hours. It has been very helpful. And I hope, we are successful in making a major change in the electoral college system.

Success or failure on this question, however, should not deter you in your efforts to get more and more young people actively involved in projects like lowering the voting age, and reform of the electoral college system.

I believe I speak for most of the members of this committee –I cannot pretend to speak for all of them—but I think most of us, regardless of our age, have the greatest respect for the ability of young people, and we would like to see this energy and this desire and drive and dedication harnessed in a positive way. I personally feel that the goals which you have set for yourself are in this category, and I salute you for them, and wish you success in your efforts.

I want to cooperate, as one Senator, as much as I can and in any way.

As chairman of the subcommittee, though, I have the obligation to remain impartial and see that all views are heard and that everyone has a chance to express his opinion.

You have been very helpful, and thank you very much.
Dr. Ashman. Thank you.
Dr. Shao. Thank you.
Mr. WARREN. Thank you.

Senator Bays. At this point in the record, there will be inserted a letter and statement from Senator Moss; and a letter from Mr. Barthelmes, administrative assistant to Congressman Bolling of Missouri, enclosing a statement from the Montgomery County Alliance for Democratic Reform. (The documents referred to follow :)

WASHINGTON, D.C., January 23, 1969. DEAR MR. CONRAD: I am enclosing a brief statement outlining the position of the Montgomery County (Maryland) Alliance for Democratic Reform in respect to the system of nomination and election of Presidents. The statement is a distillation of the formal positions taken at an ADR workshop earlier this month. It would be appreciated if this could be included in the printed report of the hearings on this subject being conducted January 23 and 24 by the subcommittee on constitutional amendments of which you are chief counsel. Thank you for your consideration. Sincerely,




Mr. Chairman and your fellow members of your distinguished subcommittee. I wish this morning to submit to you a brief summary of the position of the Montgomery County (Maryland) Alliance for Democratic Reform (ADR) in respect to alteration in the machinery for presidential nominations and elections.

However, I wish first to identify briefly the organization whose views I am submitting. The ADR is a relatively new political grouping. It is primarily composed of persons who supported either Senators Robert Kennedy, George McGovern or Eugene McCarthy for the Democratic presidential nomination. Its members, drawing on their experiences last year, believe that the party machinery for selection of a nominee of their party and the presidential constitutional apparatus are inadequate to say the least. It is this shared concern that helped to bring us together as a group in a resolve to work within the Democratic Party for alterations in the nomination and election system, Consequently, on January 11 of this year, more than 100 members of the ADR attended an all-day workshop on election reform. As a result of this meeting, characterized by full and forceful exchange of views, the workshop participants voted to support the following positions :

1. A federally conducted, direct national primary for the selection of presidential nominees-with a provision for a run-off. President Wilson in 1913 proposed to the Congress that a national direct primary be established.

2. Establishment by the Congress of a "National Election Commission." This Commission would be charged with the responsibility for the creation and application of national election standards in such areas as voter registration, voting qualifications, voting procedures, and tabulation and adjudication of election results. Senator Nelson of Wisconsin has proposed just such a commission.

While in the process of securing these two objectives, which undoubtedly would take many, many years, the ADR workshop urges the Congress to undertake an immediate reform of the Electoral College in accordance with the terms of House Joint Resolution 6 introduced by Rep. Bingham (D-N.Y.) on January 3, 1969, opening day of this 91st Congress.

In its briefest form, the Bingham resolution would :

1. Maintain the system of electoral votes but eliminate the electors themselves. The ADR workshop's feeling may be summed up in this way: "If the electors do as they should, they, the electors, are unnecessary; if they do not, then they're dangerous.” An omnibus proposal made in 1826 by Representative Haynes of Georgia contains such a feature.

2. The provision of a run-off election between the two candidates receiving the most votes—if neither candidate received a majority of the electoral votes. This is a variant of a proposal by Rep. Hale Boggs (D-La.) that there be a runoff if no presidential candidate receives a plurality of at least 40 percent of the electoral vote.

Without doubt the arguments in support of the ADR electoral college reform are familiar to you. Therefore, I shall repeat them in their briefest form :

1. The change is minimal and, therefore, when political change in this country comes with glacial speed, such minimal change is most easily acceptable.

2. Our proposal corresponds most closely with the existing Federal principle. It simply writes into the Constitution what has become customary—that the faceless electors not contradict the election results of their state.

3. It will best preserve the system of two major political parties.

4. The provision for a run-off eliminates the hazards of a brokered decision within the House of Representatives.

5. Importantly, it preserves the political "balance" between urban states and the minimum of three electors guaranteed the smaller states.

In closing, I wish to point out that the ADR proposals are made without disrespect to the myriad of other proposals before this subcommittee. Each has merits. Ours, in football terms, was a "judgment call.” For example, we considered that it is ultimately proper to abolish the electoral college concept in its entirety. We adopted a less far-reaching position on grounds that quite possibly insufficient time exists between now and 1972, the next presidential election, to effect such an uprooting, however needed it may be.


Washington, D.C., January 23, 1969.
Chairman, Subcommittee on Constitutional Amendments,
Senate Judiciary Committee,
Washington, D.C.

DEAB BIBCH:I had hoped to get to the subcommittee meeting this morning to make this statement personally, but since I had to be on the Senate Floor for the debate on the Hickel nomination, I was not able to do so.

I will appreciate it if you will enter the attached statement into the record of the hearings. I am delighted you are holding them, and am anxious to see the proposal which comes to the Floor. Sincerely,

FRANK E. Moss,

U.S. Senator.

STATEMENT OF SENATOR FRANK E. Moss (DEMOCRAT, OF UTAH) Mr. Chairman: In his brilliant document, “Proposed Amendments to the Constitution of the United States During the First Century of Its History" (1892), Herbert V. Ames reported as respects our electoral college ; "The system has not worked well in actual use, and no part of the Constitution has caused so much dissatisfaction and hence given rise to so many amendments to effect a change."

His comment would be equally valid today, particularly when the nation has just brushed past the possibility of the election of the President by the House of Representatives and of the Vice President by the Senate.

Our electoral system has unquestionably outlived some of its original functions when the country witnesses, as it did last year, the presentation of a proposal to circumvent the selection of the President by the House of Representatives (wherein each state possesses only one vote), by having each candidate for the House pledge in advance that he would vote for that candidate who had obtained the highest percentage of the popular vote.

The near miss and the proposal to deal with a frightening possibility only dramatize the fact that our electoral system must be changed. But such recognition need not, however, push us to the conclusion that the machinery in its entirety should be serapped. To quote from Lucius Cary, Viscount Falkland, as used by the late President Kennedy in this very context. "When it is not necessary to change, it is necessary not to change."

The method for electing the President and the Vice President was the most difficult question to be resolved by the Framers of the Constitution. It was also the last great decision to be made by the convention. Precedents for the election of the chief of state of a Republic were virtually non-existent. Eleven different modes were suggested some of which were adopted and then reconsidered. The eventual choice of presidential electors was a compromise between selection by the legislative branch and popular election. Inherent in the decision were basic principles of our constitutional system including among others, the role of the large and the small states, and the doctrines of separation of powers and checks and balances. Basic to everything else was the concept of federalism.

States were to participate in the election of the President through the electoral system by which it was believed that the states with the large populations would undoubtedly furnish the candidates and, since it was thought that in most elections no one candidate would ever receive a majority of electoral votes, the ultimate decision would be made by the House of Representatives, voting by states.

This classic creation in a federal system was meant to operate by having the nation's best informed and most able and knowledgeable citizens meet in their several states and there, secured by distance from corruption and influence, make their choice. In a country of vast geographical distances with a population not wholly literate, this was a feasible system.

The advent of political parties and subsequently of the unit rule altered irrevocably the function of the presidential electors. But these changes, along with the development of the country, did not eliminate the fundamental premises upon which the electoral system rested. These were and are:

First, the maintenance of a federal system in which the dispersal of government power preserves more effectively the liberties of the citizens.

Second, a method for selecting our national official by combinations of voters within the states so as to bring together a varied number of interests

in mutual tolerance and compromise, As the system has developed, candidates have been forced to concentrate their attention upon large, pivotal states where the bulk of our population resides and in which organized minorities exist, but not to exclude from their campaigning the peoples of other states whose support is essential for an electoral majority.

The electoral system has functioned well, particularly in the past hundred years. It has helped give rise to a two-party system in which the major parties do not represent ideological purity, but compromise and give and take, and where they have strong incentive to absorb protest movements, which makes negligible political splits and offshoots in the nation.

The electoral system, rooted in federalism, is designed to represent population and states, or, to state it more correctly, population within states, not just a mere percentage of those who happen to vote on election day.

The genius of the system is that it preserves an independent union of the sovereign states and brings to bear upon the Presidency a multitude of various interests.

Change of this unique system in its entirety is not necessary, but it is wise, I believe, to amend it to pare away its outdated elements. These include the independent presidential elector and the contingent election by the House of Representatives.

I would favor adoption of a constitutional amendment which would bind each elector to vote for the candidates for President and Vice President for whom he had agreed to serve as an elector. Such an amendment would only write onto the constitution what has been traditional practice, and, at the same time eliminate the danger of a switch in his vote by an elector in a close election.

I would also favor abolishing the provision for election by the House of Representatives and the Senate should no candidate for President and no candidate for Vice President respectively receive a majority of the electoral votes. This aspect of the original system is not essential to the preservation of federalism.

Some method, however, must be provided by which the election of the President and Vice President can ultimately be determined. I do not favor selection by a joint session of Congress because inherent in this scheme is dependence of the Executive upon the Legislature, a basic reason why it was discarded by the Founding Fathers. Nor do I favor some kind of a runoff procedure since this would play havoc with our election timetable and force election dates to be set even further away from inauguration day in order that the possible ramifications of contests, re-campaigning, etc., could be provided for

I would favor an amendment to provide that in the event no candidate secured a majority of the electoral vote, the President would be elected by a plurality of the popular vote. While this would depart from the concept of federalism I suggest it because of its certainty and its ease of application. As experience has proved, it is exceedingly unlikely that it would have to be used, but it is also very likely that the candidate who receives the highest electoral vote, without a majority, will also receive the highest plurality of the popular vote.

Finally, I would favor legislative changes by which the date of the election would be moved towards the end of November, perhaps the last Tuesday of that month, and the date when the electors cast their votes to later in December. Such changes would reduce the period between the date a candidate becomes President-elect and Inauguration day, and would remove some of the uncertainty as to what might occur if the President-elect dies before taking office.

Such changes are minimal, yet significant. They eliminate obsolete provisions from our electoral system while its essence is preserved. They would thrust upon the nation the least demand for adaptation to change. Yet, because the federal system is retained in the election of the President and the Vice President, I believe that they would meet with little disapproval from the states.

Before concluding, I want to say that I feel that many of the proposals before the Subcommittee have particular merit. I am especially impressed with the proposal made by the Senator from South Dakota (Mr. Mundt) which would award electoral votes by congressional district, with two at large electoral votes for a state. I think this has validity, since it does to some degree break down the centering of the electoral process in the state, and moves us toward a freer selection of the President and Vice President.

In closing, I also want to commend the Subcommittee, and its chairman, for holding these hearings now on electoral college reform. I realize that extensive work was done on this issue in the last Congress, but now, with our narrow escape last fall, there is heightened interest. This is the time to act—and I sincerely hope that a proposal will shortly be sent to the Senate floor where we can debate it fully.

Senator BAYH. We will now recess, subject to the call of the Chair.

(Whereupon, at 4:30 p.m., the committee adjourned, subject to the call of the Chair.)

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