Senator BAYH. I suggest to my friend from North Carolina that neither the Senator from Indiana nor the distinguished Senator from Montana, Mr. Mansfield, is oblivious to the desires of his constituents and both of us are supporters of direct election.

Senator ERVIN. I will eliminate from my observation the Senator from Indiana and the majority leader, although the majority leader, by virtue of his office, is required to support proposals emanating from the White House which he as an individual Senator might not be so much inclined to support because he has a twofold obligation: one is majority leader and the other a Senator from Montana. He is one of the greatest folks I ever saw.

Senator THURMOND. The original idea when the President was elected was the recognition of the States in that process. If we had a direct election by the people, does that not eliminate the States and the power of the States in this federated system of government which

we have?

Senator ERVIN. Yes, sir, I think that is perhaps the most serious objection of the plan. We have a federal system of government. The history of the world shows this if it shows nothing else, that in a big country, the country the size of ours, where the powers of government are centralized, in a central government, liberty perishes, there is no question about that. That was the reason the federal system of government placed some restraint on centralized government, direct election of President and Vice President would be a great step towards the destruction of the federal system of government. You can argue, and it is argued, that the President and Vice President are officials of all the people. You can say the same thing about the Senate and House of Representatives. They make laws for all the people. You can justify by the same process of reasoning the continued destruction of the federal system in letting all people of the Nation vote for Senators of all the States and representatives of all the States because they are Federal legislators.

Senator THURMOND. Most of the countries in Europe today are smaller really than the State of Texas in size, and that is a different situation from what we have in this country. We have Texas as just one of 50 States. It is the biggest state, other than Alaska now, but at any rate, with this great country, with diverse interests, and with the system of government that was conceived by our forefathers that would provide the greatest amount of freedom to the greatest number of people for the greatest length of time, it would be inconceivable now to let a bare majority run the country. It is inconsistent with the various provisions of the Constitution where you have time and time again provisions where majority cannot control, where it takes twothirds.

Senator ERVIN. If the Constitution shows any purpose on the part of the Founding Fathers, it was the purpose to diffuse the powers of the Federal Government, in other words to separate them.

As James Madison said so well, where you concentrate all of the powers of government in one man, one body of men, or one government, whether they are elected or hereditary or whatever you call them, he says there you have the very essence of tyranny.

Senator THURMOND. That is the thing that those who conceived of this Constitution are trying to get around, to prevent tyranny. They did not allow a majority rule, and they provided checks and balances.

If we are going to elect the head of this Nation just by a majority alone, not recognizing the small States, then we can see what could happen. It would destroy the federal system as we know it today under which this country had become the greatest nation on the face of

the earth.

I am very bitterly opposed to the direct vote of the people. I am convinced that the people in each State ought to have a say in these matters and then the State could control the situation. I think that we have to recognize these States, otherwise we are destroying our federal system of government as we know it today.

I would like to ask you this question: Has not the direct election of the chief executive in other countries produced a multitude of splinter parties making ultimate government exceptionally difficult such as in France, Germany, and Italy?

Senator ERVIN. Yes, I do not think there is any question about that. Senator THURMOND. And could not that same situation result and probably would it not result?

Senator ERVIN. The danger of it would be vastly increased.
Senator THURMOND. Vastly increased.

Thank you very much, Senator. We are delighted to have you with us.

Senator ERVIN. The opponents of Senate joint resolution 1, like the opponents of Senate joint resolution 2 recognize that is a danger. Both of them have a 40 percent provision that the President get at least 40 percent of the electoral votes in one case and 40 percent of the popular votes in the other case.

Senator BAYH. I think, if I may interrupt, that since we are all very anxious to hear Dr. Bailey that we continue this colloquy later on. Dr. Bailey believes we ought to keep the present system and, contrary to many of us, he believes the elector should have the freedom to choose. I would like to suggest, in light of the fact that we have gotten into a rather thorough discussion of the popular vote proposal, that this opportunity to discuss all proposals is fundamental and indispensable to any constitutional change. That is why our forefathers required twothirds of both Houses of Congress and three-fourths of our legislatures. It is not a change that should be taken lightly.

I have said, repeatedly, that in my judgment there is no law devised by man that is perfect, and I have not held out Senate joint resolution 1 as a plan that is perfect. But I think, as we go ahead with our deliberations, it is indispensable that this committee should weigh the imperfections of each proposal and then weigh them against the present proposal, which the three of us here, I think, believe has a number of apparent weaknesses.

I suggest that when we talk about what our constitutional fathers hoped to achieve and then try to impart to them infinite wisdom, we really are not looking at what happened at the Constitutional Convention and what has happened since. The "infinite wisdom" of our constitutional fathers was so great that the ink on that great document was hardly dry when we had to pass the 12th Amendment to the Con

stitution, which was designed to clarify and correct an imperfection that existed in the presidential election provisions of the Constitution itself. In the debates of the Constitutional Convention at Philadelphia, contrary to the popular view, our constitutional fathers did not see the electoral college as the institution for making the determination. Rather, they viewed this as a nominating process that would subsequently leave the final determination to the House of Representatives, where each State would have one vote regardless of its size.

Now, if we are going to be consistent and suggest that our constitutional fathers were right in their original design, then we had better go behind their thinking. We had better read this document and say, "Well, then, we also agree that they were right in believing this would be a nominating process which would subsequently lead to a determination made by the House of Representatives," which almost everybody in the House of Representatives today thinks is one of the aspects of the present system that most needs to be changed.

As I said earlier, before my friend from South Carolina came in, one of the aspects that concerns me most about S.J. Res. 2, the proportional plan, and the district plan as well, is the fact that both permit the decision to be made by even less than a majority. In fact, on three occasions the present system, because of the disproportionate allocation of electoral votes, has elected a minority President. And in both the district plan and the proportional system this dangerous possibility is present. A man could be elected who had fewer votes than his opponent. If my colleagues can devise a way in which either of these plans will get rid of this one basic imperfection, then you are going a long way toward convincing me that these plans have considerable merit. This is the one thing that has most concerned me.

Senator ERVIN. I believe one of those minority Presidents was Woodrow Wilson who was elected in 1912 because he had three parties to run against.

Senator BAYH. Perhaps I should be more specific and change my words to say nonplurality, because Woodrow Wilson had more votes than any of the three men he was running against but not a majority. Senator ERVIN. He was a minority President.

Senator BAYH. So was Richard Nixon and so was Jack Kennedy. Senator ERVIN. Yes; but Abraham Lincoln was a minority President, and Woodrow Wilson and Abraham Lincoln were pretty good Presidents. Benjamin Harrison was elected by a minority, and also I do not agree with the Senator-Samuel J. Tilden was a majority President because Samuel J. Tilden got both the majority vote and the majority of the electoral vote, and to be perfectly frank it was stolen from him.

Senator BAYH. It surely was.

Senator ERVIN. By chicanery.

Senator BAYH. To clarify my meaning because I used the term "minority" in its accepted popular sense, what the plan that my distinguished friend from North Carolina recommends, and the district plan as referred to by my friend from South Carolina, is the election of a President who has fewer votes than the man he is running against; not even a plurality President, because traditional to most elections in

this country is the rule that the man who gets the most votes ought to win, and I think this is imperative.

I hope that as a result of the discussions that we have in this committee, and across this country, most people will come to realize that we have imperfections in the present system.

I think we need to look at this system as it actually works. This concern about the big city bosses and the concern over small States losing a mathematical advantage that they now have, in the opinion of the junior Senator from Indiana overlooks the obvious fact that in planning for presidential campaigns not a great deal of attention is given to these small States. Right now the attention is devoted to those large States with sizable bloc of electoral votes under the unit rule they can deliver these blocs of votes on the basis of the barest pluralities. None of us here like it, but the only way we are going to get these States to give up their advantage is to have a quid pro quo, by which we purify the entire system and change so that both the large and the small States will be of a mind to go along with us.

I would just suggest a couple of other thoughts, and then I want to end this prolonged discourse. I wanted to make the record clear and did not want the fact that I remained mute to some of the very telling arguments of my colleagues to be interpreted by some latter-day scholar as acquiescence in the good judgment of the argument. The politics of passing an amendment, I think, is a fundamental point. The Senator from North Carolina is absolutely right, although I respectfully suggest that the argument can be made the other way. That where it is necessary to get three-fourths of the State legislatures, it is also necessary to have a plan which can be presented to both large and small State legislative bodies on an equitable basis. Senator Burdick, our distinguished colleague from North Dakota, polled the State legislatures a few years ago and reported a substantial majority of our State legislators said they would support a plan that gave people the right to vote for their President.

Nobody knows what is going to happen in the State legislatures. Nobody knows what is going to happen in the Senate. Nobody knows what is going to happen in this Subcommittee on Constitutional Amendments. So why not adopt the plan we think is best.

If you want to proceed further, we can, or we can listen to our witness. We will follow your lead.

Senator ERVIN. I would like to make a few observations about yours. You say that your system, that is S.J. Res. 1, will diminish the powers of the big States, which is rather paradoxical to me because the way it does, it takes the power away from 36 States, an increased voice in the election of a President to 14 States.

You also assert that your method would provide for minority presidents by the majority vote. It does not do anything of the kind. It provides for the election of presidents by 40 percent of the votes. The advantage of my plan, I kept the best of the old and take a part of the new that can be added without doing violence to our system of Government and, therefore, I think mine is the best of all three plans. Senator BAYI. I would like to suggest that before we are too critical of the 40-percent provision, that we recognize it was part of both of our suggestions.

Senator ERVIN. Yes.

Senator BAYH. The only difference is mine suggests we should have. 40 percent of the people and the Senator from North Carolina suggests 40 percent of the electoral votes.

Senator ERVIN. The advantage of mine, in the overwhelming majority of the elections the candidate for President who is elected would be a man who receives the majority of the popular vote and also a majority of the votes of the States. Under your plan conceivably the State of California and the State of New York alone could elect the President of the United States and the other States have no voice in his election

Senator BAYH. Can the Senator, in all his wisdom, actually consider a practical case in which two of our States can by themselves elect a President of the United States? We have got to get right down to the facts.

Senator ERVIN. No, but in casting the vote, 49 of the States can vote by a majority of one vote for President, and the majority in the other State can be decisive.

Senator BAYH. That is right. There is no perfect system. This discussion, as it has developed, seems to me to break down along the lines of those who believe that the States are an absolute indispensable ingredient in electing a president, whether we are electing a President of the United 50 States, or whether we are electing a President of some 200 million Americans. Admittedly, my case must be based on the fact that I feel we are electing a President of the people of this country, and when the majority of the people of this country, regardless of where they live, say, "This man is our choice for President," then he ought to be President.

Senator ERVIN. Well, from the standpoint of just using a little English language, the President is the President of the United States, not of the people.

Senator BAYH. Is there further discussion here?

Senator ERVIN. No more.

Senator THURMOND. Mr. Chairman, does it not boil down to the fact whether you want a democracy or a republic? We now have a Republic. The question is whether we shall keep it.

Senator BAYH. I respectfully disagree. The argument does not boil down to that. I think we can have our Republic, as we should, and maintain the Federal system by having two Members of the United States Senate where each State is represented equally, and let the people choose the President. In my judgment, that is what our Founding Fathers meant by the federal system, and I am glad we have had this opportunity to discuss an important aspect of the electoral reform. Dr. Bailey, now that you have been baptized under fire, we are indeed grateful to you for being here.

I have talked to Dr. Bailey and our staff has been in consultation with him, and I would like the record to show, without going into detail, that Dr. Bailey came here at some considerable sacrifice because of serious illness in his family. We are deeply indebted to him for coming.

The first decision that confronted this Congress was the unusual one of validating Dr. Bailey's electoral vote. Dr. Bailey became the center of a rather heated controversy in both Houses. Much was said about the wisdom of his decision not to vote for Richard Nixon, who