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ELECTING THE PRESIDENT

THURSDAY, JANUARY 23, 1969

U.S. SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.
The subcommittee met, pursuant to recess, at 10:15 a.m. in room
G-308, New Senate Office Building, Senator Birch Bayh, presiding.

Present: Senators Bayh and Thurmond.

Also present: Larry A. Conrad, chief counsel; Clyde Flynn, minority counsel, Burnadette McGorarty, clerk, and Diane Meyer, assistant clerk.

Senator Bayh. Our subcommittee meeting will come to order.

I appreciate the fact that our distinguished colleague from South Carolina, Senator Thurmond, is with us this morning. I have suggested, and he has agreed, that because of the very pressing schedule of our colleague from Colorado, Senator Dominick, we permit Senator Dominick to go first. We will then follow with our opening statements.

So, Senator Dominick, we appricate your being here. We are anxious to hear what you have to say. STATEMENT OF HON. PETER H. DOMINICK, A U.S. SENATOR FROM

THE STATE OF COLORADO Senator DOMINICK. Mr. Chairman and Senator Thurmond, I am delighted to be here. I really appreciate your affording me this privilege and opportunity. I particularly appreciate you letting me go right away. As I said, we have hearings this morning before the Armed Services Committee on the various services secretaries. That is why I have to move so rapidly.

Mr. Chairman, the recent election has, as we all know, raised more strongly than ever the general demands for reform of our electoral system and the manner of selection of the highest executive office in this land has come under severe criticism from broad elements across the Nation. The interest in my State of Colorado is great, and I would like to express some of my views to the subcommittee as I see the relationship of the smaller Western States to this problem and particularly the relationship of Colorado.

As the committee is probably aware, I am a cosponsor of both Senator Mundt's district plan and Senator Ervin's and Senator Sparkman's proportional plan. I am strongly opposed to complete abolition of the electoral system at this point in our Nation's history, but I do favor revisions in the system. There is no clear indication that abolition of the system is necessary in order to correct the primary objections.

In fact, if I may say so, it is a little bit like cutting your head off to cure appendicitis. I don't think it cures the problem at all, and it may result in the death of the Republic.

Any plan calling for direct popular election is fraught with difficulties which may prevent its ratification by three-fourths of the States. Certain reforms are clearly necessary such as the problem of the "faithless elector" and the contingent election of a President and Vice President by the separate Houses of Congress. The unit rule of casting electoral votes should also come under intensive scrutiny by this subcommittee, as I am confident it will.

But I desire to point out to the subcommittee at the outset my basic objection to any plan adopting a direct popular vote.

Such a plan will give the Federal City complex, not only a tremendous boost but even greater influence and control of the election of the President and Vice President and it would reduce substantially the influence of the smaller States. The present system is weighted in favor of the large industrial States already and particularly the major seven States of California, New York, Pennsylvania, Ohio, Illinois, Texas, and Michigan. The direct popular vote would give greater influence to the major urban cities in those and other States. Such influence would attract those interested largely in power. Certain of those cities now are, or have been in the past, controlled by city "bosses” who pledge to "deliver” the vote for candidates of their choice and who in many cases have the machinery to do so. Tammany Hall still exists though such men as Carmen de Sapio are gone from those halls.

Mayor Daley has been under sharp attack for the control he has on Chicago and the problems he has there. We all know of the machine that Mr. Pendergast has had in Kansas City, and there are others that come to mind. Obviously in any Federal City complex the influence of these people would be sharply enlarged. This contingency is a serious threat to the smaller States as many do not have total population even equal to that of one of the major cities such as Los Angeles, Chicago or New York.

Because of the demands on a major candidate's time, and the expense of a national campaign, these smaller States not only may not see or hear the major candidate, but also television and press coverage may be more limited. Millions were spent on the presidential campaign in 1968 and much more will have to be spent in a direct popular election, because the key to any direct popular vote plan is a fully informed electroate. The best medium for this is probably television, and such time, as we well know, is very expensive.

I might say, the chairman and I, just having been in a tough campaign in our States, know already what the cost of this is. Campaign expenses must be dealt with extensively to make any such plan fair and representative.

Each of us as Members of Congress must proceed with great caution not to upset drastically the balance of influence between the smaller States and the large urban centers. The direct popular vote plan with its increased influence through a Federal-city complex cannot, at this point in our history, maintain the delicate checks and balances between the States, regardless of size. This is not a State sovereignty versus Federal Government problem, but a shift of influence from the State

to the large city. The large urban city is more subject to control, as I have already pointed out, by "political machines. Under the present system, as well as the proposed district and proportional plans, the out-State areas can still exert balancing influences on the large urban centers because they do not lend themselves as readily to central political control. Regional and rural influences may still be heard. Although any system is weighted to favor the large populous areas—I want to emphasize “any system”—we should not totally ignore the historical development of our presidential election machinery which maintains a modicum of balance between large and small States.

Reform, however, is necessary and vital to the stability of our electoral process. Congress will hopefully correct the serious threats and criticisms of our system. These principal threats are: (1) Correcting and eliminating the hazard of the "faithless elector" or a group of such electors acting in concert. We've had a case up before us just recently on the floor of the Senate concerning this.

(2) Devising an alternative means of electing a President in the event of a tie or lack of a majority or plurality of the electoral vote. This would involve a runoff election or a joint session of the House and Senate voting as individual members for a President and Vice President together. The possibility of a deadlock, delay, or a Vice President from the opposite political persuasion is not relished by any segment in our society.

(3) Revision of the unit rule concept of casting electoral ballots. Such gross disenfranchisement of a great segment of the voters cannot be condoned. (4) Insuring that the nominee of a party, national party, be listed at the head of his party ballot in every State.

One practical problem presented by a direct popular vote plan is federalization of voting requisites regarding age. Such requisites are now controlled by the States and range from 18 years to 21 years of age. The issue presented is not the constitutional issue of 18-year-old votes. As the Senators are aware, I have been a strong proponent of reducing the voting age to 18 years of age and making this standard across our Nation. Differential in age limitations seems to me to be as discriminatory as race limitations. The problem, however, is obtaining ratification from the necessary three-fourths majority of the States, if you haven't already standardized the voting qualifications.

I would despair to see the needed reforms just mentioned, the four that I have outlined in my statement, fail because of this related problem. And I would suggest to the Senators, that the smaller States' concern with the Federal-city complex and the threat of control by "city bosses” and political machines with the resultant further erosion of the small States' influence on the election of the President in the direct popular plan could easily result in failure of three-fourths of the States ratifying the amendment. The four particular reforms previously entered must be accomplished.

Now, I thought I would make a brief statement concerning the critical problems of our present system, and then go on to the district and proportional plan. The "faithless elector” problem has been considered by the Senate as a whole, and I understand that the object of that debate, Dr. Bailey, is scheduled to appear before the subcommittee later. The real threat lies in a group of such electors acting in concert to throw the election into the House of Representatives. The spectre of "deals” in the electoral college obviously rears its ugly head. Bargaining for the highest office in the land would not only seriously jeopardize the general acceptance of any winner, but might easily result in frustrating the intent of the people. We should say, or at least ask ourselves the question, would that man who receives the electoral voto majority by that method have the mandate necessary to govern and adequately exercise the powers of his office?

Really there is no longer any necessity for the office of elector. The office can be eliminated under the present system as well as the various proposals for revision. The elimination of the office does not require abolishment of the electoral system. There is a serious legal and constitutional question, however, whether the States by law can require an elector to vote in a given manner under the present system. A constitutional amendment so binding an elector is a superfluous appendage. The voters do not need an intermediary to exercise their judgment. This argument posed by proponents of the direct system is valid, but it does not necessarily follow that the only method of election left is direct popular vote.

Now, the contingency of the last election being thrown into the House under the present system was fraught with dangers, many real, and others imagined. The fact remains that the clear possibility exists of substantial delay in selecting the President and a Vice President being selected from the opposite or even a minority party.

All proposals to reform the electoral college have included alternatives to correct these dangers. The two most significant would require the Senate and House to meet in joint session, each member having one vote, with a limit on the number of votes. The other proposal is a national runoff. The subcommittee should consider carefully the time delay and cost involved in the latter proposal. Would additional campaigning be allowed ? Both proposals have merit, but it would seem to me at least that the additional cost of a runoff is something that we are going to have to wrestle with and consider very seriously before it is authorized

We further have to determine whether a majority is necessary under any system. A major argument of proponents of the direct popular vote is that a "minority President” may be elected under the present system. “Minority" as I am using the term means one who finished second or below in the popular vote. This danger is caused by the unit rule, primarily.

The direct plan will not eliminate the possibility of a President with only a plurality vote. As a matter of fact, it may enhance this possibility by fractionalizing our present two-party system. The question is how large a plurality should be necessary. Forty percent appears to be the magic figure, which has been settled upon by a number of proponents of constitutional amendments. This country has had only three "minority Presidents" under the present system, and only once, in 1876, did the winner's chief opponent receive an absolute majority. There have been, now, 12 "plurality” Presidents. Only one, President Lincoln in 1860, failed to receive 40 percent of the popular vote, and he received 39.79 percent of the vote.

This problem ties in directly with the unit rule. Certainly this rule lends some influence to the smaller States, but it lends even greater influence to the larger States. No President before President Nixon

won the Presidency with less than a majority of the seven big States and their 210 electoral votes. This does not mitigate the fact that the unit rule, in my opinion, is the most unfair, unrepresentative, and undemocratic feature of whole electoral process. The system of casting the whole block of votes of one State for a candidate who wins by only one vote in that State, is not only antagonistic to the one-man, one-vote rule, but effectively disenfranchises many voters in that State.

Again, however, abolishment of the unit rule does not require abolition of our whole electoral system. I am a cosponsor with Senator Mundt of Senate Joint Resolution 12, calling for a district plan. The office of elector is retained with a binding declaration by the elector to vote for certain candidates for President and Vice President. It requires a majority of electoral votes. In any event no candidate receives a majority, the three highest are chosen and voted for by a joint session of the House and Senate, each Member having one vote, three-fourths (34) being a quorum. If no person has received a majority after the fourth vote, the fifth ballots shall be taken on the two with the highest number of votes on the fourth ballot. I don't need to further explain that to you. It is my statement, and I am sure it is already well known to the committee chairman.

I also cosponsored Senate Joint Resolution 2 with Senator Ervin and Senator Sparkman. This is the proportional plan. This plan calls for a proportional distribution of the electoral vote in each State based on the percentage of the popular vote received in that State. It wholly abolishes the office of elector and each State's votes are automatically cast on a percentage basis. A candidate must receive 40 percent of the total electoral vote. If not, the two highest shall be voted on by a joint session of the House and Senate, each Congressman having one vote. Both of these provide for abolition of the unit rule. By retaining the electoral vote, they balance the small State-large city interest inherent in the direct popular vote plan.

They solve the problem of the "faithless elector." They prevent delay, stalemate and a Vice President from another party by providing for a joint session of the House and Senate, narrowing the number of candidates and limiting the number of votes.

Both would solve three of the four critical deficiencies of the present system previously pointed out. Each provides a more direct relationship to the popular vote by eliminating the unit rule, thus minimizing any possibility of a "minority President.”

I would point out one or two statistical facts in relation to the proposals and minor problems presented by each plan.

Under a district plan in the 1960 and 1964 elections, the results would be different. This subcommittee was given these figures by Mr. Neal R. Pierce, political editor of Congressional Quarterly, in hearings held in the 89th and 90th Congress. They appear on page 233 of the hearing record. Under a district plan, in 1960, President Kennedy would have received 244 electoral votes and President Nixon 279 270 votes being a majority. The result would have been changed from President Kennedy's 303 electoral votes to President Nixon's 219.

In 1964, the district plan would have given President Johnson 466 votes instead of 486, and Senator Goldwater 72 rather than 52.

No figures are yet available for 1968 by districts.

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