Do you feel that will be a weakness in this?

Representative WYLIE. Well, I think you have put your finger on the point which needs to be improved and of course if this committee or Congress in its wisdom felt that language needed to be added there to tighten that up a little, I would be amenable, of course. But the reason I put the withdrawal provision in there was so that if a State adopted, for instance, the fourth plan which simply eliminates the faithless elector which might happen in a couple of States as I understand it, and then it was obvious to that State that their plan had no chance but another plan was out in front, then they could withdraw the approval of that plan and go to another plan you see. Now what I would need, I think, is to couple this with a method of eliminating a plan as we go along, until we come to one plan.

In other words, what I want to do is test the pulse of the States.
Senator Cook. Well, see, what bothers me-

Representative WYLIE. I was in the State legislature, also, Senator, and served on the Elections Committee.

Senator Cook. I think we all enjoyed tours in the State legislature. I sure enjoyed it.

Representative WYLIE. Yes, sir. I enjoyed it very much and I know what you are saying that there will be a considerable amount of debate among legislators.

On the other hand, the State legislatures under this bill could say, yes; we want a constitutional amendment and adopt the first step which would amend Article V of the Constitution and not adopt a plan-they could adopt a wait-and-see attitude to see which one has the most support.

Or, they could say we don't care to have another plan other than the one that we now have so we are not going to adopt the section which refers to Article V but we will select a plan on the outside chance that three-fourths of the States will approve a constitutional amendment and protect ourselves with reference to some plan.

So I respectfully suggest, Senator, that I understand your question that you are apprehensive, that there will be a considerable debate around the States that may cause confusion if you put four plans. But, if you say here is the one-you either adopt this or nothingyou have a clear-cut choice you vote yes or no. I say you take more of a chance nothing will be accepted.

Senator Cook. But the thing that bothers me about this is that to me, constitutional reform is to say that once the Congress pounds out a basic change in the Constitution it is then submitted on that basis. History I think will very vividly show that the constitutional amendments that have been proposed gave no legislatures any alternative other than to be for or to be against: as matter of fact, the original document itself was submitted to the original colonies, here it is; accept it or reject it.

I am concerned to this extent. You opened up by saying that in vour district-in Ohio-that the majority of the people are for the direct election of the President. You indicated this, did you not?

Representative WYLIE. Yes, sir.

Senator Cook. You then said that if I were from a smaller Statenow what makes us here in the Congress seem to feel that somebody in your district in Ohio all of a sudden feels differently from some

body in a congressional district in Delaware, or somebody in a congressional district in Rhode Island.

Now I think that what we are really talking about-we are not talking about the sense of the people, we are talking about the political ramifications of giving up a system in which losers can be winners and winners can be losers.

If 81 percent of the people in a Gallup poll said they wanted a direct election, I think the proof of the fact that political machinery moves into it and the fact that the next question was asked of them— do you feel that the Congress of the United States will do anything about it before the next election, and 43 percent of the people said that they thought so and all of the rest of them said, no

Representative WYLIE. That's right.

Senator Cook. Which indicated, really, that this is what the American people want but somehow or other the political system doesn't want. I think we are the people who are making the differentiation. between large States and small States.

For instance, I come from Louisville
Representative WYLIE. Yes, sir.

Senator Cook. And everybody says, well, Louisville is a nice urban community of three-quarters of a million people but as I walk down the main street of Louisville I can stop anybody I want to and they are not from Jefferson County. They are from Green County, Elliott County, and you name any county in the State of Kentucky and that is where they are from and that is where their loyalties are from.

But the point I am trying to make to you is that somehow or other we are the people who are diversified.

Representative WYLIE. Well, I know what you are saying but I was basing the reason for submitting H.J. Res. 530 partly on the fact that the second part of the Gallup poll, as you have suggested, indicates that people don't feel that Congress will do anything about it, and I wanted to avoid that possibility.

I wanted to avoid the possibility that there would be no plan. I wanted to accept the responsibility of getting a constitutional amendment to the State legislatures so that they could do something about it. Now, I am basing my statement on the fact that many of the small States might object to a direct election plan on testimony that was given before the House Judiciary Committee by Members of Congress from small States.

Representative Pollock and I think Representative Kleppe, he is not here, but his statement was something along that line.

Senator Cook. Well, I am interested in hearing you.

Senator BAYH. Well, we really aren't going to be able to judge that. Excuse me for interrupting, but there is sort of a balance of how these people are really going to act if they have that tough decision to make. Although we do have instances of people from small States in the Congress that have spoken as you mentioned, we have people from large States that are not 100 percent behind the popular vote plan. I think if you would look down the cosponsorship list in the Senate and I am not so callous as to suggest that a Member of the U.S. Senate is not pretty well versed with the attitudes of his constituency, you will note that Senator Gravel of Alaska, Senator Inouye of Hawaii,

Senator Montoya of New Mexico, Senator Bible of Nevada, both Senators from Montana and one from Idaho are cosponsors. I could go down the list. Both Senators from Maine are on there one Republican and one Democrat-Senator Margaret Chase Smith has been leading the charge for this for a long time. Senator Smith's proposal involves the primary aspect in everything. But the Senators from New Hampshire, I mean, there is just no-both from Rhode Island-there is no clear line on one side of which you say the man from the small State is for it or against it and the man from a large State is necessarily the same way.

Excuse me for interrupting. We seem to have significant evidence that when you go into Alaska and cast your vote you are not saying, "boy I'm really going to sock it to them because I have a mathematical advantage and that is why I am casting my vote for President," I just don't think that is psychologically the way the average voter——

Senator Cook. I think the thing that bothers me about all of thiswhen we look for the method that computes the desires of people, that I look at States in the South for instance that contrary to the Senator from Indiana, I am a Republican-I look for States in the South to begin to grow insofar as the Republican Party is concerned. And yet for years and years and years, I doubt under any circumstance that any congressional district in those States will show a majority of votes for my party, consequently every electoral vote in that State will still stay right in the same column that it has always stayed

in.

What bothers me is that the American individual wants to walk in, cast a vote for his candidate for President and know that his vote means exactly what he put it in there for and not some mathematical theory once it is over.

Representative WYLIE. Well, Senator, you have your finger on the pulse of the Senate better than I, I am sure.

Senator Cook. I am a new member. I don't have a finger on it at all. Representative WYLIE. All I am suggesting is that if my arithmetic is correct, 44 Senators have expressed a preference for a plan other than a direct vote plan. Now, obviously that is more than one-third. You have to have 67, but if you feel, or know that you can get the direct vote plan through the Senate and through the House and three-fourths of the States adopt it, that is fine.

Again, as I say, I am not arguing that one plan is better or worse than another. I was basing my resolution on the fact that I want to be certain that this Congress does something to provide some vehicle for the States to select a plan other than the one that we now have of electing the President and Vice President.

Again, as I say, I was basing my idea on surveys which have been taken as to where the Senate stands; the President who has been around the track a few times made the statement he did not feel the direct election plan could get three-fourths of the States' approval Well, let's find out. That is all I am saying. Let's just find out.

We'll submit four and if three-fourths are going to select the direct election plan, that is great.

Senator Cook. Assuming that most of the States show that the majority of the State legislators prefer that

Representative WYLIE. But that is not enough.

Senator Cook. Yes, but it shows that a majority are in favor of electoral reform.

Representative WYLIE. I know, Senator, but we submit four plans and the majority of the States select a direct election plan. Then, it is obvious that the other States who elect the other three plans know that their plan is not going to be adopted

Senator Cook. But then if they do not want a direct election plan, they could avoid any constitutional reform at all.

Representative WYLIE. Not if we put in a provision for dropping other plans as we go along. I think that is a weakness in this bill. But, I left it out intentionally because I didn't want to get into specific language of how a plan might be dropped off.

Senator BAYH. I don't know where the UPI Survey originated but as I said before, we don't know with any degree of certainty how the voters are going to vote. We don't know how the State legislators are going to vote. We are very heartened by the 28 to 6 bipartisan vote yesterday in the House Judiciary.

The record, as of now, reveals that the only real solid evidence as to relative support in this body, is that there are 44 members of the Senate that are cosponsoring our proposal for direct election. Eight Senators are supporting a district proposal, and 10 Senators are sponsoring a proportionate plan.

Now, I know that one of our colleagues is a sponsor of all three. So I want the record to be clear.

Representative WYLIE. He wants to be able to go any way.

Senator BAYH. Maybe he would figure your plan preferably as an alternative. When he was before the committee Mr. Kleindienst was very gracious and we subjected him to a rather arduous task of trying to explain the criteria that had been used by the administration. However, I told him that if I had to get to 67, I would rather start counting at 44 than to start at 10 or 18.

Your contention is, of course, that you can add them altogether and start counting from there.

Representative WYLIE. You don't have to start. You start counting at 90 under my proposal which is more than two-thirds.

Senator BAYH. Well, you have been very kind and we

Senator Cook. We appreciate it very much.

Representative WYLIE. Thank you very much, gentlemen. As I say I did give this a good amount of thought. I think it is an absolute necessity that we change the Constitution in this respect and it is along these lines that I felt we must come up with something.

Senator BAYH. Thank you very much.

Representative WYLIE. Thank you, gentlemen.

Senator BAYH. The next witness is Mr. Lawrence Speiser, the director of the American Civil Liberties Union who is no stranger to this subcommittee. Mr. Speiser, we appreciate your continued concern with the subject to which you addressed yourself today. We are anxious to know what your thoughts are in light of current developments. We have not had a chance to talk to you about this since we were on television on the night of November 6. We read all the articles and suppositions prior to and after November 6.

Mr. SPEISER. Mr. Chairman, I would like to have my statement put into the record, with your permission. I will not read it in its entirety but will summarize it.

Senator BAYH. Without objection we will have it put into the record.

Mr. SPEISER. I am here today, Mr. Chairman, to urge the abolition of the electoral college and the adoption of a constitutional amendment to provide for the direct popular election of the President and Vice President.

The electoral college from its very inception was based on the con'cept of elitism and mistrust of the people. It is undemocratic in conception and in operation. It is an anachronism in this day and age and should be abolished.

Now the ACLU declares its support for direct popular election as based on the principal that each individual is entitled to have his vote counted equally with those of all others and it correlary the "one-man, one-vote" principle. The major drawbacks of the electoral college system, I think have been pointed out in the past and I don't believe that any of the defenders of this system have been able to respond adequately to the criticisms of the system.

First, the fact that the presidential and vice-presidential candidate who receives the greatest number of votes still may not win the presidential election. This has happened three times in the 19th century and we have come seriously close to that in three elections in this century. In 15 elections, a shift of less than 1 percent of the popular vote would have caused that to occur, the loser would have become President because he obtained a greater number of electoral votes.

Secondly, there is an undue importance given to small States because the vote of a voter in a smaller State such as Alaska counts far more and has greater weight than the vote from a voter in a larger State. Conversely it also gives a greater importance to the larger State because the focus in a persidential election is on getting the electoral votes of the larger Ŝtates. This has been the effect of the winner-takes-all system although it is not dictated in the Constitution. It effectively discourages minority groups from voting in larger States. You raised the question, Senator Cook, about the status of the Republicans in the southern States I think the fact that they realize they are in a minority position tends to discourage Republicans from voting in Southern States in presidential elections, although they should have a right to express their views. They should have a right to have an impact on the election system, in their States.

There is also the elector problem we had, for example in 1968 of an elector who disregarded the wishes of those who had voted and voted for someone that he himself preferred.

Then, lastly, of course, there is the horror of throwing the presidential election in to the House of Representatives in which each State has one vote.

This is simply an anachronism which cannot be explained and it is, I believe, indefensible.

The arguments that have been made in favor of retaining the electoral college system have been made interestingly enough both by liberals and conservatives, both by "States Righters" and those to whom "States Rights" is not such an article of fate. The arguments