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Direct popular election of the President and Vice President of the United States : hearings before the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, ninety-sixth Congress, first session, on S.J. Res. 28 .. online

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DIRECT POPULAR ELECTION OF THE PRESIDENT AND
VICE PRESIDENT OF THE UNITED STATES



HEARINGS

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

NINETY-SIXTH CONGRESS

FIRST SESSION
ON

S. J. Res. 28

JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE
CONSTITUTION TO PROVIDE FOR THE DIRECT POPULAR
ELECTION OF THE PRESIDENT AND VICE PRESIDENT OF

THE UNITED STATES



MARCH 27, 30, APRIL 3, AND 9, 1979



Printed for the use of the Committee on the Judiciary




DIRECT POPULAR ELECTION OF THE PRESIDENT AND
VICE PRESIDENT OF THE UNITED STATES



HEARINGS

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION



OF THE



COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

NINETY-SIXTH CONGRESS

FIRST SESSION
ON

S. J. Res. 28

JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE
CONSTITUTION TO PROVIDE FOR THE DIRECT POPULAR
ELECTION OF THE PRESIDENT AND VICE PRESIDENT OF

THE UNITED STATES



MARCH 27, 30, APRIL 3, AND 9, 1979



Printed for the use of the Committee on the Judiciary

yij. ^2^13.: Hah 6




U.S. GOVERNMENT PRINTING OFFICE
*^^^^® WASHINGTON : 1979



/






COMMITTEE ON THE JUDICIARY

[96th Congress]
EDWARD M. KENNEDY, Massachusetts, Chairman



BIRCH BAYH, Indiana
ROBERT C. BYRD, West Virginia
JOSEPH R. BIDEN, Jr., Delaware
JOHN C. CULVER, Iowa
HOWARD M. METZENBAUM, Ohio
DENNIS DeCONCINI, Arizona
PATRICK J. LEAHY, Vermont
MAX BAUCUS, Montana
HOWELL HEFLIN, Alabama



STROM THURMOND, South Carolina

CHARLES McC. MATHIAS, Jr., Maryland

PAUL LAXALT, Nevada

ORRIN G. HATCH, Utah

ROBERT DOLE, Kansas

THAD COCHRAN, Mississippi

ALAN K. SIMPSON, Wyoming



David Boies, Chief Counsel and Staff Director



Subcommittee on the Constitution
BIRCH BAYH, Indiana, Chairman



HOWARD M. METZENBAUM, Ohio
DENNIS DeCONCINI, Arizona
HOWELL HEFLIN, Alabama



ORRIN G. HATCH, Utah

STROM THURMOND, South Carolina

ALAN K. SIMPSON, Wyoming



Nels Ackerson, Chief Counsel and Executive Director

Marcia Atcheson, Counsel

Louise Milone, Professional Staff Member

(ID



CONTENTS



Opening Statements

Page
Bayh, Hon. Birch, a U.S. Senator from the State of Indiana, chairman,

Subcommittee on the Constitution 1

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah 11

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina 33

Proposed Legislation

Senate Joint Resolution 28, proposing an amendment to the Constitution to
provide for the direct popular election of the President and Vice President of
the United States 4

Chronological List of Witnesses

Tuesday, March 27, 1979

Goldwater, Hon. Barry M., a U.S. Senator from the State of Arizona, accompa-
nied by J. Terry Emerson, counsel 8

Levin, Hon. Carl, a U.S. Senator from the State of Michigan 14

Pryor, Hon. David, a U.S. Senator from the State of Arkansas 14

McClure, Hon. James A., a U.S. Senator from the State of Idaho 23

Bailey, Dr. Harry, professor of political science, Center for the Study of

Federalism, Temple University 50

Michener, James A., author 74

Friday, March 30, 1979

Stokes, Hon. Louis, a Representative in Congress from the State of Ohio 83

Bingham, Hon. Jonathan B., a Representative in Congress from the State of

New York 90

Kirkpatrick, Dr. Jeane, professor of political science, Georgetown University,

Washington, D.C 99

Bailey, Doug, president, Baileyeardourff and Associates, Inc., Washington, D.C. Ill

Berns, Walter, resident scholar, American Enterprise Institute 131

Kobell, Ruth, legislative assistant, National Farmers Union 145

Datt, John C, director, Washington office, American Farm Bureau 149

Tuesday, April 3, 1979

Jordan, Vernon E., Jr., chairman, Black Leadership Forum, accompanied by
Carl Holman, president, National Coalition; and Eddie N. Williams, presi-
dent, Joint Center on Political Studies 163

Squadron, Howard M., president, American Jewish Congress, New York, N.Y.,
accompanied by Nathan Dershowitz, director. Commission on Law and Social

Action of the American Jewish Congress 187

Will, George, columnist, the Washington Post, Washington, D.C 220

Neuman, Nancy, vice president, the League of Women Voters, Pittsburgh, Pa.. 233
Feerick, John D., chairman, Special Committee on Election Reform, American
Bar Association, accompanied by Craig Baab, Washington office of the

American Bar Association 237

Best, Dr. Judith, professor of political science. State University of New York,
Cortland, N.Y 253

(III)



IV

Monday, April !), 197!)

Page

Dole, Hon. Robert, a U.S. Senator from the State of Kansas 307

Uhlmann, Michael, National Legal Center for the Public Center 317

White, Theodore, Bridgeport, Conn 341

Alphabetical Listing and Materials Submitted

Bailey, Doug:

Testimony Ill

Response to questions subsequently submitted by Senator Hatch 127

Bailey, Dr. Harry:

Testimony 50

"The Electoral College and American Federalism," from the Illinois Quar-
terly, Vol. 3(5, No. 2, December 1973 61

Bayh, Hon. Birch:

Letter in support of direct popular election signed by Senators representing

States with few electoral votes 29

Editorial from the Washington Post, "Admirable Case, Wrong Defend-
ants," by Dave Broder, March 21, 1979 57

1976 State-by -State spending in the general election by the President Ford

Committee 124

Media Expenditures for the Carter campaign: TV, Radio 129

Candidates stops along campaign trail — 1976 202, 203

Chart utilizing the election returns from the 1976 Presidential race 257, 258

Trends relevant to the social and economic outlook for the American

Jewish community 207

Harris Survey, May 30, 1977 230

Letter to Sen. Bayh from National Council of Jewish Women in regard to

testimony of Howard Squadron 220

Berns, Dr. Walter:

Testimony 131

Prepared statement 143

Best, Dr. Judith:

Testimony 253

Responses to Senator Simpson's questions 261

"The Case Against Direct Election of the President" 264

Bingham, Hon. Jonathan B.:

Testimony 90

Prepared statement 93

H. J. Res. 223, proposing an amendment to the Constitution of the United
States to modernize the Presidential electoral system 96

Datt, John C:

Testimony 149

Statement of the American Farm Bureau Federation 161

Dole, Hon. Robert:

Testimony on behalf of former President Gerald R. Ford 307

Speech before the House of Representatives, September 16, 1969, by Hon.

Gerald R. Ford 308

i Feerick, John D.:

Testimony 237

Prepared statement 248

Goldwater, Hon. Barry M.: Testimony 8

Jordan, Vernon E., Jr.:

Testimony 163

Prepared statement 183

Mailgram to Hon. Strom Thurmond 178

Letter from Hon. Cardiss Collins, a Representative in Congress from the

State of Illinois, to Hon. Birch Bayh 186

Kirkpatrick, Dr. Jeane:

Testimony 99

Prepared statement 108

Kobell, Ruth E.:

Testimony 145

Prepared statement 147



V

Page

Levin, Hon. Carl: Testimony 14

McClure, Hon. James A.: Testimony 23

Michener, James A.: Testimony 74

Neuman, Nancy: Testimony 233

Pryor, Hon. David: Testimony 14

Simpson, Hon. Alan K.:

Testimony excepted from the August 2, 1977, hearing on the Electoral

College and Direct Election 117

Prepared statement, with attachment 359

Squadron, Howard M.:

Testimony 187

Prepared statement 213

Stennis, Hon. John C: Prepared statement 412

Stokes, Hon. Louis: Testimony 83

Thurmond, Hon. Strom: Report of the Library of Congress, Congressional
Research Service, "Effect of the Adoption of Direct Popular Election of the
President and Vice President on the Relative Influence of the Several

States in Electing the President and Vice President in 1976." 37"

Uhlmann, Michael:

Testimony 317

Prepared statement 336

White, Theodore:

Testimony 341

Prepared statement 355

Will, George:

Testimony 220

"Don't Fool With the Electoral College," Newsweek, April 4, 1977 231

APPENDIX

PART 1. — Statements from Private Industry, Organizations and Universities

Americans for Democratic Action 365

American Civil Liberties Union 366

American Good Government Society 367

Anti-Defamation League of B'nai B'rith 376

Chamber of Commerce of the United States 382

Congressional Black Caucus 384

National Grange 385

National Law Center, George Washington University 388

United Synagogue of America 401

WBZ-TV 4/WBZ Radio 1030, editorial 402

PART 2.— Additional Statements

Corrada, Hon. Baltasar, Resident Commissioner of Puerto Rico 403

Javits, Hon. Jacob K. a U.S. Senator from the State of New York 404

Lewis, John, associate director, Office of Domestic and Anti-Poverty Oper-
ations, ACTION 405

Mann, Irwin, New York, N.Y 407

Stennis, Hon. John C, a U.S. Senator from the State of Mississippi 412

PART 3. — Additional Articles and Summaries

"Electing the President: How Should It Be Done?" by David I. Wells 418

"The Direct Election of the President: The Final Step in the Constitutional

Evolution of the Right to Vote 423

"Resource Allocations in the 1976 Campaign" by Steven J. Brams 456

"The Electoral College and Unstable Congressional Apportionment," by James

Evan Shaw 463

"The Presidential Election Game," by Steven J. Brams 477

"The Plebiscitary Presidency: Direct Election as Class Legislation, by Aaron

Wildavsky 533

"Madison's Views on Electoral Reform," by Donald O. Dewey 544



VI

Page

"The Popular Election of Future Presidents," by Alexander M. Bickel 551

"Operating on the Electoral College, A Scalpel and Not an Amputation," by

Judge Paul Perkins (retired) 554

"Let's Keep the Electoral College," Ronald C. Moe 590

"Is Electoral Reform the Answer?" by Alexander M. Bickel 595

"Presidential Elections," by Nelson W. Polsby and Aaron B. Wildavsky 607

"Possible Consequences of Direct Election of the President," by Richard G.

Smolka 629

"The American Electoral College," by Roger Lea MacBride 637

PART 4. — Newspaper, Magazine Editorials and Comments

Additional news items submitted by the minority counsel of the subcommittee... 652



DIRECT POPULAR ELECTION OF THE PRESI-
DENT AND VICE PRESIDENT OF THE UNITED
STATES



TUESDAY, MARCH 27, 1979

U.S. Senate,
Subcommittee on the Constitution of the

Committee on the Judiciary,

Washington, D.C.

The subcommittee met, pursuant to notice, at 2:08 p.m., in room
235, Russell Senate Office Building, Senator Birch Bayh (chairman
of the subcommittee) presiding.

Present: Senators Bayh, Hatch, Thurmond, and Simpson.

Staff present: David Boise, chief counsel. Committee on the Judi-
ciary; Nels Ackerson, chief counsel and executive director. Subcom-
mittee on the Constitution; Mary K. Jolly, staff director; Marcia
Atcheson, counsel; Linda Rogers-Kingsbury, chief clerk; Tom Parry,
minority chief counsel; Stephen Markman, minority counsel; Jim
Lockemy, counsel for Senator Thurmond; and Charles Wood, coun-
sel for Senator Simpson.

Senator Bayh. The subcommittee will come to order.

OPENING STATEMENT OF HON. BIRCH BAYH, A U.S. SENATOR
FROM THE STATE OF INDIANA, CHAIRMAN, SUBCOMMITTEE
ON THE CONSTITUTION

Today we begin the first of 4 days of hearings on Senate Joint
Resolution 28, a proposed constitutional amendment to abolish the
electoral college and establish direct election of the President and
Vice President. I must admit to a certain sense of having been here
before. Today's will be the 44th day of hearings we have had on
this proposal since I began chairing this subcommittee back in
1966. In the ensuing years there have been some 180 witnesses who
have delivered over 3,730 pages of testimony. Some of the witnesses
who will appear before us in the coming days have been here
before, some maybe even twice before. I might add that the hearing
record shows that this amendment has received four times more
consideration and study than any other amendment in over 25
years.

For example, the amendment abolishing the poll tax, the most
completely studied and considered amendment of the period, re-
ceived only 11 days of hearings with 25 witnesses testifying.

With this history behind us, I initially opposed the idea of more
hearings because I felt that there simply was no need for them. In
recent years, we have had witnesses quoting each other and even
themselves. In the interests of perfect fairness, however, I finally

(1)



consented to the opposition's demands for these additional days, so
that the new Members of the Senate would have full opportunity
and time to consider the matter. It should be pointed out, however,
that four new Senators quickly decided to become cosponsors of
this amendment and that others, while not cosponsoring are sup-
porters, and have become some of its strongest boosters. They come
from large States and small States, urban and rural, and they have
come to the conclusion that direct election is in the best interests
of our country. In any case, on March 15, I finally agreed with the
opposition to let Senate Joint Resolution 28 be referred to commit-
tee until April 10, so that we could once more air differing views
on this measure through the hearings process. Again, in an effort
to be more than fair, we have allowed the opponents of Senate
Joint Resolution 28 to have more witnesses than the proponents.
Therefore, I would like to point out to those of you attending these
hearings for the first time that you will not hear for instance, from
the organizations who have for many years and still do support
direct election, groups such as the ABA, the U.S. Chamber of
Commerce, the AFL-CIO, UAW, Common Cause, the League of
Women Voters, as well as the American Federation of Teachers,
the National Federation of Independent Business, the ACLU, and
the ADA. I should add that this organizational support reflects
what the people in this country think. Polls taken over the last 12
years consistly show that a very large majority of Americans sup-
port direct popular election. The average approval has stayed at
around 75 percent over this period of time.

In any case, these organizations in favor of direct election are on
the record, and should not be ignored simply because in the inter-
ests of time we felt we should not ask them to testify once again.

Before we begin, I would like to give notice that there is one kind
of argument made on this topic with which I must confess I have
become increasingly impatient, and that is, who is advantaged and
who is disadvantaged under the electoral college. Everybody admits
that the electoral college sets up a system that favors some people
on the basis of where they happen to live. There seems to be a lot
of disagreement, however, as to who these people are. There are
those people who have come here and said they're for the electoral
college because they are advantaged by it. What seems to get lost
in these discussions is that if somebody is advantaged, somebody
else is disadvantaged. If the electoral college favors the large urban
States, it simply does not favor the smaller, less populated States.
If it favors the small States, it just does not advantage the large
States. If it favors the cities, it doesn't favor the farmers. It just
can't do it because somebody has to lose. Therefore, if we have a
group who testifies that my people are advantaged by the electoral
college because they live in the urban areas of the large electoral
vote States, someone from a small, rural State has every right to
up and say, if that's so, then the electoral college works against
me, and vice versa. The winning principle behind direct election, of
course, is that we can forget these inconsistent claims and selfish
interests and say, all our votes count the same.

Well, let's get started. I give fair warning that unless someone
does a superhuman job of persuading, I am going to remain con-
vinced the direct election should replace our present system, be-



cause direct election is the only system that guarantees that every
vote will count, that every vote will count the same, and that the
candidate with the most votes will win.
[Senate Joint Resolution 28, introduced by Senator Bayh follows:]



96th congress
1st Session



S. J. RES. 28



Proposing an amendment to the Constitution to provide for the direct popular
election of the President and Vice President of the United States.



IN THE SENATE OF THE UNITED STATES

January 25 (legislative day, January 15), 1979
Mr. Bayh introduced the following joint resolution; which was read the first time

February 22, 1979
Read the second time and placed on the calendar

March 15 (legislative day, February 22), 1979

Referred by unanimous consent to the Committee on the Judiciary with
instructions that it be reported by May 1, 1979



JOINT RESOLUTION

Proposing an amendment to the Constitution to provide for the
direct popular election of the President and Vice President
of the United States.

1 Resolved by the Senate and House of Representatives

2 of the United States of America in Congress assembled

3 (two-thirds of each House concurring therein), That the fol-

4 lowing article is proposed as an amendment to the Constitu-

5 tion of the United States, which shall be vaUd to all intents



2

1 and purposes as part of the Constitution when ratified by the

2 legislatures of three-fourths of the several States within

3 seven years from the date of its submission by the Congress:

4 "Article —

5 "Section 1. The people of the several States and the

6 District constituting the seat of government of the United

7 States shall elect the President and Vice President. Each

8 elector shall cast a single vote for two persons who shall

9 have consented to the joining of their names as candidates for

10 the offices of President and Vice President. No candidate

11 shall consent to the joinder of his name with that or more

12 than one other person.

13 "Sec. 2. The electors of President and Vice President

14 in each State shall have the qualifications requisite for elec-

15 tors of the most numerous branch of the State legislature,

16 except that for electors of President and Vice President the

17 legislature of any State may prescribe less restrictive resi-

18 dence qualifications and for electors of President and Vice

19 President the Congress may establish uniform residence

20 qualifications.

21 "Sec. 3. The persons joined as candidates for President

22 and Vice President having the greatest number of votes shall

23 be elected President and Vice President, if such number be at

24 least 40 per centum of the whole number of votes cast.



6



3

1 "If, after any such election, none of the persons joined

2 as candidates for President and Vice President is elected pur-

3 suant to the preceding paragraph, a runoff election shall be

4 held in which the choice of President and Vice President

5 shall be made from the two pairs of persons joined as candi-

6 dates for President and Vice President who received the

7 highest numbers of votes cast in the election. The pair of

8 persons joined as candidates for President and Vice President

9 receiving the greater number of votes in such runoff election

10 shall be elected President and Vice President.

11 "Sec. 4. The times, places, and manner of holding such

12 elections and entitlement to inclusion on the ballot shall be

13 prescribed in each State by the legislature thereof; but the

14 Congress may at any time by law make or alter such regula-

15 tions. The days for such elections shall be determined by

16 Congress and shall be uniform throughout the United States.

17 The Congress shall prescribed by law the times, places, and

18 manner in which the results of such elections shall be ascer-

19 tained and declared. No such election, other than a runoff

20 election, shall be held later than the first Tuesday after the

21 first Monda}' in November, and the results thereof shall be

22 declared no later than the thirtieth day after the date on

23 which the election occurs.

24 "Sec. 5. The Congress may by law provide for the case

25 of the death, inabilitv, or withdrawal of any candidate for



4

1 President or Vice President before a President and Vice

2 President have been elected, and for the case of the death of

3 both the President-elect and Vice-President-elect.

4 "Sec. 6. Sections 1 through 4 of this article shall take

5 effect two years after the ratification of this article.

6 "Sec. 7. The Congress shall have power to enforce this

7 article by appropriate legislation.".



8

Senator Bayh. We appreciate the opportunity to have a distin-
guished senior colleague from Arizona with us. I appreciate your
being here, Senator Goldwater.

TESTIMONY OF HON. BARRY M. GOLDWATER, A U.S. SENATOR
FROM THE STATE OF ARIZONA, ACCOMPANIED BY J. TERRY
EMERSON, COUNSEL

Senator Goldwater. Thank you very much, Mr. Chairman. I
would like to introduce my legal adviser, Mr. Terry Emerson, on
my staff.

Mr. Chairman, I appreciate the opportunity to testify before you
on the subject of Presidential election reform. As a former candi-
date of one of the two major parties, I have some thoughts to share
with you.

First, Mr. Chairman, I must state my opposition to the direct
election plan. I do believe there are positive changes your commit-
tee can recommend, but this is not one of them.

To my mind, the direct election proposal is undemocratic, incon-
sistent, chaotic and divisive.

It is undemocratic because it is not based on the concept of
majority rule. Instead, it substitutes a procedure under which a
candidate might be elected without capturing a plurality in even
one State. So long as a candidate gathers 40 percent of the vote
nationally and no other candidate receives more, he is declared the
winner, without a runoff.

The direct election plan is inconsistent because it does not pro-
vide for an accurate selection of the "people's choice," as promised.
Instead, it is arbitrarily assumed that if the people were allowed to
choose among the top two candidates, they would always pick the
same person who won a plurality in the first election.

This means one person's vote may be sufficient to elect the
President if he votes for the same candidate as 40 percent of the
people.

His vote will be meaningless if he joins with 60 percent of the
electorate who prefer someone else. Thus, a voter who is among the
40 percent bloc will command an inflated vote, which is superior to
those cast by 60 percent of his fellow citizens, just the same as a
citizen whose vote is now inflated by the unit rule.

Mr. Chairman, the plan is chaotic because it would lead to a rash
of vote contests that might spread throughout the Nation in any
close election. This would be true whether or not fraud was
charged. Human and mechanical error would be sufficient by itself
to make it worthwhile for a losing candidate to challenge the
election outcome. When the impact of a mistaken count in one city
or county is no longer insulated within the boundaries of a single
State, but can directly affect the result across the entire Nation,
there will be great pressures on a losing candidate to demand a
recount in almost every political unit in the United States.

Once any recounts get started, all 178,000 precincts will be in-
volved. A switch of votes in Illinois will no longer affect the out-
come in that State alone. It might change the result nationwide. As
so it goes down the line.

Mr. Chairman, I contend direct election is divisive because it
would encourage a proliferation of splinter parties. At least seven



of your past witnesses have agreed that the number of "third
parties" will increase under direct election.

For example, Theodore White, who has written several well-
known books on Presidential campaigns, said that direct election
"results in less compromise. It opens up the possibility of ideologi-
cal parties or racist parties."

Richard Goodwin, a former writer for both Presidents Kennedy
and Johnson, has explained why he believes direct election would
promote splinter parties. From personal experience, he said:

I do know in 1968 when the people who wanted to organize a party came to those
of us who were working with Senator McCarthy and were anxious to start a new
party and had actually done studies of ballot and election laws, the principal
argument that stripped that movement of its forces was that the effect would be
simply to throw States into the Nixon column. They could not carry States.

And then Mr. Goodwin went on and said:

At a minimum, you would arrive nationally where you now are in New York
State, for example, where you have four parties, because a party that can command



Online LibraryUnited States. Congress. Senate. Committee on theDirect popular election of the President and Vice President of the United States : hearings before the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, ninety-sixth Congress, first session, on S.J. Res. 28 .. → online text (page 1 of 76)