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The vitality of our political institutions and their responsiveness to the needs of the American people is at stake. We are not going to have an easy time. I think our discussions already have brought this out.

James Wilson of Pennsylvania pointed out in the Constitutional Convention in Philadelphia that "This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we had to decide."

Well, that was almost 200 years ago, and so it is similar today.

I feel that it would be less than honest for me as chairman of the subcommittee not to suggest that after 3 years of study I enter these hearings with some rather strong beliefs about the subject. I do believe that the direct popular election is the best system with no “ifs,” "ands" or "buts," and that there is little reason that the people of America should not be given an opportunity to elect their Presidents if they elect their county commissioners, their mayors, their Governors, their Senators, and their Congressmen. There have been 40 cosponsors join us on our proposal. We appreciate the effort that has been made by them and particularly the Senator from Tennessee, who is our next witness.

I would like to say that as the chairman of this subcommittee I believe I have a real responsibility to be objective. For this reason we are inviting all testimony we possibly can from proponents and opponents of all different plans. As I pointed out to Senator Dominick, the study of this whole problem for 3 years has caused this Senator to change his mind. When you actually examine the way the present system does in fact work at the precinct level, at the district level and at the State level, it looks much different than it does when you just give a cursory examination of it at the national level.

I am hopeful that we can bring a greater degree of expertise to these hearings. We want to take into consideration the 1968 elections. I think this will shed some further light on the severity of the problem as well as the complexity. There are cretain weaknesses disclosed. I think most people here can vividly recall the election of November 5. I remember the morning of November 6, because I was personally involved in a little confrontation. I was watching to see what the final returns would be. I recall watching one of the major television networks and at the specific moment that Vice President Humphrey conceded, or at least the computer said that he was going to lose Illinois and thus President Nixon was going to win it, thereby guaranteeing the electroral vote necessary; the very next picture flashed of the popular vote showed that by then Vice Humphrey had forged into a popular vote lead. In my judgment this would have been tragic. As President Nixon himself said, "I think that if the man who wins the popular vote is denied the Presidency, the man who gets the Presidency would have very great difficulty in governing." I think the basic principle we must assure, is a scheme that will give the Presidency to the man who has the most votes. There is only one plan that does that. It is the direct popular election. I will not go further because our friend from Tennessee is here and ready. I know he is busy. We will ask that my remarks be put in the record as if they had been read in full. We have several problems to deal with. I only touched on the one which appears most apparent and to have the greatest impact. (Senator Bayh's statement in full follows:)

STATEMENT BY SENATOR BIRCH BAYH, CHAIRMAN OF THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS

Today this Subcommittee resumes its study of what, to my mind, is one of the most pressing issues facing this Nation-to determine the best method of electing the President and Vice President. Nothing short of the best method, it seems to me, will suffice. We ought never to lose sight of that for what is at stake here, plainly, is the vitality of our political institutions and their responsiveness to the needs of the American people.

We will not have an easy time reaching a determination. It was not easy for the Framers of the Constitution. As James Wilson of Pennsylvania pointed out: "This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we had to decide." Resolving this difficulty, the Framers devised what Professor John Roche has aptly described as that "jerry-rigged electoral college compromise."

As one Senator I am something of a partisan in this matter. My views are known. I strongly believe that direct popular election is the best electoral system, with no "ifs," "ands," or "buts," and so I have introduced a proposed constitutional amendment, S.J. Res. 1, along with 40 cosponsors, to provide for the people to elect their President directly. As Chairman of this Subcommittee, however, I have an obligation to the members of my committee, to the Senate, and to the American people to present a record that encompasses the width and breadth of opinion on the question of electroal reform. And I intend to fulfill that obligation.

The purpose of these hearings, therefore, is to serve as a forum of discussion. Over the space of the past 22 years this Subcommittee has conducted a wide ranging study of our electoral process, hearing testimony from our colleagues in the Congress, numerous civic groups, and interested public spirited citizens. We have compiled a printed hearing record of more than 900 pages of quality testimony. It is a record of which this committee can be proud.

It is my hope that at this time we can accommodate the growing number of those who have an active interest in electoral reform and have not had an opportunity to testify previously. Secondly, I would like to see the record made as current as possible and so we are seeking information that, as a result of the 1968 election, may shed some further light on this whole matter.

At this point, I would like to offer my own views as to the lessons, if any, that can be learned from the 1968 election. It seems to be, that in 1968 we came as close as we safely could to demonstrating the basic structural weaknesses and defects in our present electoral machinery without having to experience the disastrous consequences of an electoral mishap.

First, for some time it was feared that despite his electoral majority, Mr. Nixon actually might poll fewer popular votes than Vice President Humphrey. In fact, I can vividly recall, early on the morning of November 6th as I sat glued to my television set awaiting the final election results, that at the very moment the computers predicted a Nixon electoral majority, Humphrey had forged ahead in the popular balloting.

Along with millions of other concerned citizens, I viewed with great alarm the prospect of a minority President. Fortunately, we narrowly escaped that danger but the scare was sufficient to make the average American sit up and take notice of our hit-and-miss electoral machinery. At a time of great international tensions and pressing problems at home, with so evident a need for strong Presidential leadership, it would have been ironic indeed if the President-elect was not the choice of the American people. As President Kennedy was often heard to remark, the closeness of the popular vote in the 1960 election seemed to hamper Presidential efforts to attack the problems of our nation head-on. During the campaign, President Nixon took this thought one step further and said "that if the man who wins the popular vote is denied the Presidency, the man who gets the Presidency would have very great difficulty in governing." Second, I am sure we can all recall the speculation that was rife about what would happen in the event no candidate received an electoral majority. Throughout the campaign, the political pundits pointed out that this, in fact, appeared to be the very purpose of the Wallace candidacy. If this strategy proved successful, the American Independent Party would then have held the balance-of-power when the victorious slates of electors convened in their state capitols on December 16th. On the basis of pre-election polls, some showing Wallace with as much as

20 percent of the popular vote and possibly as many as 103 electoral votes, it was not an implausible scheme.

In fact, it had been a subject of great concern to both major party candidates, particularly after it was learned that Wallace's electors had signed notarized oaths pledging them to Wallace "or whomsoever he may direct." At one point late in the campaign, Humphrey challenged Nixon to join him in a public pledge that neither would bargain for the Wallace electoral votes. Nixon, for his part, asked Humphrey to agree to a plan that would insure that the popular vote winner was chosen President.

The alternative to a bargain with Wallace, however, was no more in keeping with our democratic traditions and sense of fair play. It was an election in the House of Representatives from among the top three candidates, with each State having one vote and tied delegations forfeiting their votes.

A Nixon electoral majority based on a narrow popular vote victory meant, of course, that none of these dangerous contingencies would occur. But something did occur somewhat unexpectedly that, once again, raised serious doubts as to the viability of our present machinery. A North Carolina elector, Dr. Lloyd Bailey, cast his electoral vote for George Wallace, despite Mr. Nixon's popular vote victory in North Carolina. Dr. Bailey will have the opportunity tomorrow to state his case, as fully and as freely as he desires. As I see it, however, his actions are proof that the electoral college system leaves too much to chance. I believe the time is now to substitute popular choice for political chance and the only way to do that is to have the people elect the President directly by popular vote. STATEMENT OF HON. HOWARD H. BAKER, JR., A U.S. SENATOR FROM THE STATE OF TENNESSEE

Senator BAYH. Senator Baker, we appreciate the fact that you are with us this morning.

Senator BAKER. Mr. Chairman, thank you very much and may I begin, as I think I appropriately should begin, by commending the chairman of this subcommittee for undertaking a difficult but I think extremely worthwhile inquiry into a basic change in the form and the method of selecting the Chief Executive Officer of the United States.

I am here, Mr. Chairman, to testify in support of this fundamental reform of our electoral process. The trend of the last few years has been to strip away conditions to full participation in the electoral process. And the time has now come when we must institute a direct vote of the people for their President.

There was a time when the concept of an electoral college served a desirable function. The public at large was poorly educated and had little or no access to the kind of information on which an intelligent choice could be made. It was sound public policy at that time for the citizen to vote for a group of men in his own State who were educated and who were experienced and thus capable presumably of choosing wisely the men to lead this Nation and to choose their President.

But the situation today, Mr. Chairman, is radically different from that which made the system appropriate at the time it was devised, at the time of the birth of this Republic. The people today are widely educated and, due largely to the advent of mass circulation and electronic communications, they are generally well informed on the issues that confront our society and the persons who seek to lead it. The machinery of the electoral college remains; its reason for being has passed. The machinery itself must be eliminated, in my judgment. The system is more than a harmless anachronism; it represents a dangerous impediment to the voice of the people, an unnecessary barrier interposed between the voting citizen and the highest office in his Government.

For many years several different proposals for reform of our presidential electoral system have been suggested. Both the district system and the proportional system have been advanced and found wanting, either because of basic defects or because they would have resulted in substantial changes in the political power processes of this country. The choice today, in my judgment, is between the existing electoral college and a direct popular vote.

The advantages of a direct vote are many, and I shall not enumerate them as they have been often discussed and the advantages so eloquently and ably pointed out by the distinguished chairman of this subcommittee. Rather, I would like to give my attention to two of the principal arguments that have been advanced against direct election. The first of these arguments is that direct election, if adopted, would be disruptive of our two-party system in that it would cause the creation of numerous ideologically oriented parties which would in turn undermine the moderate political tone that has generally prevailed in our country. The underlying basis of this contention is that ideologically oriented splinter parties are presently discouraged because they rarely, if ever, can win a plurality of the popular vote in any State and thus capture the electoral votes of that State.

Mr. Chairman, considered analysis indicates that a direct vote for the President would not endanger the present workings of our twoparty system.

And may I say, Mr. Chairman, that if I thought for one moment that such a proposal would disrupt the basic tenets of the two-party system, I would not propose it, because I believe the two-party system in the American format is one of the things that has made our great experiment in democracy what its amounts to today. It is the machinery by which the people express their desires and their dissent to the structure of government.

Senator BAYH. If the Senator will yield briefly, I want to just again, in the light of the axiom that "confession is good for the soul," suggest that it was not until I had become convinced that the two-party system would not only not be destroyed but rather strengthened, is that I changed my mind to popular vote. Under the direct election each vote is counted in the national total. Even in Republican or Democratic precincts that never go the other way, that precinct committeeman is going to have the desire to add that total to the national vote. It was not until I became convinced of this that I changed my mind. So I salute the Senator for pointing out that this is one of the critical arguments attendant to the popular vote system with which we must deal. I appreciate his doing so.

Senator BAKER. I agree. I think, too, Mr. Chairman, it might be pointed out that it is seldom noted, I believe, that in the Constitution of the United States and the various other cornerstone documents of this Republic or in the Statute law itself there is no provision made for how the people of the United States speak to the structure of govern

ment.

There is no provision for direct political activity. And the twoparty system as we know it has grown up purely as a product of the American genius for self-government. It exists nowhere else in the world. Two broad based national parties, each not only able to, but indeed anxious to, accommodate a wide variety of viewpoints and

ideas, of ideologies and philosophies and meld them into a majority voice on any given election day. This really is the synthesis of selfgovernment.

So I agree with the chairman that we must see that the two-party system in the American format is preserved before we move on to what I believe is the essential improvement of our process of electing a President.

Mr. Chairman, further, Mr. Neil R. Pierce in a recent book entitled, "The People's President," enumerates an extensive body of political research identifying many reasons for the country's adherence to the two-party system, and the electoral college is not among them.

There are many instiutional factors which discourage third parties. Electoral laws, campaign practices, social patterns, the high cost of political campaigning, statutory obstacles to getting on the ballot, and the legal status of the two major parties as supervisors of elections in many States all contribute to the difficulty which minor parties have in attaining any degree of national influence or support.

Prof. V. O. Key contends that since the institution of the Presidency, unlike a multi-party cabinet, cannot be divided among numerous parties to provide a coalition government, the presidential institution is itself a major reason for the evolution and the development and the continuation of the two-party system as we know it in its present national broad based character. Other authorities assert that our system of electing Representatives by a plurality vote in singlemember districts is the underlying basis of our political party system.

I think this is essentially so, especially since the Congress and the courts have engaged themselves in guaranteeing that there is equality of vote in the one man-one vote concept; which I may, Mr. Chairman, say with some pride that the litigations in that field originated in my home State of Tennessee with the landmark case of Baker v. Carr.

In summary, the contention that our two-party system is significantly sustained by the electoral college overlooks these other more substantial factors that are involved.

A second contention made by some opponents of direct election is that a direct vote would be disruptive of our federal system in that it would inevitably bring irresistible pressures for national laws governing qualifications for voting and the conduct of elections. This would, it is argued, constitute a threat to State control of voting for Representatives, for Senators, and possibly State and local officials and would, as a result, violate State sovereignty.

In discussing reform of our election machinery, I want to make immediately and abundantly clear my deep reverence for an independent two-party system and for the fundamental right and privilege of the various States to make their own election laws and determine their own election procedures within the framework of constitutional federalism. The stability and longevity of our political system and the splendid success of our great experiment in democratic government have been largely due to the concept and the fact of federalism on the one hand and the existence of two broad based, national, popular, parties on the other hand. I would neither propose nor support any reform that would interfere with or in any way endanger either the rights of the states to control elections or the freedom of the two national parties to transact their business.

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