ELECTION OF THE PRESIDENT WEDNESDAY, MAY 17, 1967 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to recess, at 1:15 p.m. in room G308, New Senate Office Building, Senator Bayh presiding. Present: Senator Bayh (presiding). Also present: Larry A. Conrad, chief counsel, and Clyde Flynn, minority counsel. Senator BAYH. We will come to order for our second session. The subcommittee is extremely honored to have with us this afternoon the first witnesses of a four-part panel representing the American Bar Association. I would like to once again, for the sake of the record, as well as our distinguished panel members, compliment the ABA for the outstanding job that the association's members did in relation to the successful attempt which was made in support of the 25th amendment to the Constitution. By your presence here, gentlemen, you indicate that the bar association's interest in constitutional reform is not limited to a single institution. I, as one member of this subcommittee, am happy to have you join us here, and appreciate the cooperation of the bar association panel that studied this problem, perhaps more thoroughly than any other single group of diverse interest has studied it. The first witness we have is Mr. Orison S. Marden, president of the American Bar Association from New York, who over the years. has compiled a distinguished prefessional as well as an outstanding personal record. The second member of the group, Dean Robert G. Storey, is chairman of the Commission on Electoral College Reform, and dean of Southern Methodist University. Dean Storey brings to the commission and to this committee a wide background with respect to the legal profession, as well as the academic community. The third member of the commission is Professor James C. Kirby, professor of law at Northwestern University, who brings to the committee today an intricate knowledge of the workings of the committee's business, having served under the chairmanship of the late distinguished chairman of this same subcommittee, Senator Estes Kefauver. As I recall, Mr. Kirby was counsel to the subcommittee at that particular time-he also served on the ABA commission which is studying the problem of electoral reform. The final member of the commission, Mr. John D. Feerick of New York, is likewise not unfamiliar to this subcommittee. He has been instrumental in handling the American Bar Association young lawyers section which coordinated efforts throughout the States, in efforts which were made. He is also the author of the most authoritative reference that has been done on the question of presidential inability and succession and presently serves as counsel for the electoral reform commission of the ABA. Gentlemen, I think that further reference to you personally and the respect I have for you and the great reputation you have compiled would only prove that time prohibits us paying you the credit you deserve. So why don't you proceed with your testimony as you see fit, please. Mr. Marden, we shall be glad to hear from you first. STATEMENT OF ORISON S. MARDEN, PRESIDENT OF THE AMERICAN BAR ASSOCIATION Mr. MARDEN. Mr. Chairman, and members of the subcommittee, my name is Orison S. Marden. I reside in Scarsdale, N. Y., practicing law in New York City and am currently president of the American Bar Association. First I want to thank you so much for your kind remarks about the association, and those who have worked with you in connection with what has now become the 25th amendment of the Federal Constitution. We have looked to you for leadership, and you have certainly given leadership in these matters of great concern to the country. We are most grateful to you, sir. Senator BAYH. You are very kind. Mr. MARDEN. I am very happy and proud to be here today as the first spokesman for the American Bar Association on the historic reforms proposed in Senate Joint Resolution 2. As you know, the association long has taken a deep interest in constitutional problems affecting the great office of the President. I am, of course, particularly pleased to recall here the fruitful relationship the association had with this subcommittee in working for the recently adopted 25th amendment on presidential inability and vicepresidential vacancy. I trust we shall again be able to serve as well. Our efforts in support of the 25th amendment, you also will recall, were based on recommendations of a distinguished commission of scholars and lawyers which subsequently were approved by our house of delegates. In seeking a position on the electoral college, we followed a similar path, starting with creation of the commission on electoral college reform by the house of delegates in February, 1966. The house acted on the recommendation of Edward W. Kuhn, then association president. And I am very happy to say he is here with us today, and is now a member of our committee on reform of the electoral college. As in the case of its predecessor, the new commission was charged with conducting a thorough study of its problem areas and seeking a nonpartisan formula for resolving it. To this end, the commission held its first meeting in Washington, D.C., in May of 1966 and reached a consensus at a final session in Chicago, Ill., on October 7, 1966. That consensus, Mr. Chairman, ap proved by the house of delegates of this year, calls for direct election of the President and Vice President along lines generally proposed in Senate Joint Resolution 2 and related bills. I will not attempt to go into the details of the commission's work or the merits of its recommendations since these matters will be fully covered by members of the commission itself. But, I would like to make a few general observations about the commission and to express here the American Bar Association's great pride in its work and our deep appreciation for its selfless service. The commission is a particularly distinguished group and a glance at its roster shows that it is composed of very independent men, representing broad bipartisan segments of American life. They include distinguished scholars, State Governors, labor and business leaders, as well as national and regional leaders of the bar. I also think it important to note, Mr. Chairman, that the commission considered all the major alternative proposals for changing the electoral college system before deciding on the direct election plan we now support. I also would add that some of the members began the study with at least some inclination toward one of the other proposals. However, there was unaimous agreement on the need for basic reform, and the consensus on direct elections developed quickly as the study progressed. There were, of course, some differences as to language and details, but there was a general consensus in favor of the plan we now propose. Mr. Chairman, I am very hopeful that this will be the start of another successful bipartisan effort to strengthen the constitutional provisions relating to that greatest of all democratic offices, the American Presidency. In this regard, we are pleased that Chairman Bayh is sponsoring Senate Joint Resolution 2 and that provisions of the ABA consensus also are contained in a similar measure sponsored by the distinguished minority leader, Senator Everett M. Dirksen. I am also pleased that the distinguished majority leader, Senator Mansfield, testified yesterday in support of direct election. Now, if I may, I would like to introduce the chairman of our commission, Dean Robert G. Storey, a man whose qualifications made it clear that this post must seek him out. Dean Storey earned his honored title at Southern Methodist University Law School. Now dean emeritus, he serves as president of the Southwestern Legal Foundation in Dallas, Tex. To mention just a few other high points in his distinguished career, I will add that he is a former president of the American Bar Association and has served on more presidential commissions, under both Democratic and Republican Presidents, than any other current leader of the ABA. These include the Hoover Commission, the Commission on Civil Rights, the U.S. Sea Level Canal Commission and the National Crime Commission. We were so pleased that he could find time to bring his many talents to our Commission on Electoral College Reform. And now, Mr. Chairman, I present Dean Storey. Dean, before you start, I think it would be wise to insert in the record the membership of the commission, inasmuch as one particular aspect of this commission varied from the study group that was joined together to study the possibility of dealing with the problem of succession 90-902-68-21 and disability. That important addition was the inclusion of members who were not closely related to the bar association group. You brought in many divergent points of view, and major organizations were represented. I would like to put in the record at this time without objection the list of the total membership. (The information referred to by Senator Bayh, the membership of the commission follows:) Members of the Commission in addition to Dean Storey include: Henry Bellmon, Governor of Oklahoma; Paul A. Freund, professor of constitutional law, Harvard University; E. Smythe Gambrell, Atlanta, Ga., former president, American Bar Association; Ed Gossett, Dallas, Tex., attorney and former member of Congess from Texas; William T. Gossett, Detroit, Mich., immediate past president, American Bar Foundation and former general counsel, Ford Motor Co.; U. S. District Judge William J. Jameson, Billings, Mont., former president, American Bar Association; Kenneth B. Keating, associate judge, New York Court of Appeals and former United States Senator; Otto E. Kerner, Governor of Illinois; James C. Kirby, professor of constitutional law, Northwestern University and former chief counsel, Senate Judiciary Subcommittee on Constitutional Amendments; James M. Nabrit,Jr., Washington, D. C., president, Howard University and former deputy U. S. representative to the United Nations; Herman Phleger, San Francisco, former legal advisor tothe Department of State; C. Herman Pritchett, professor of political science, University of Chicago, on leave of absence at the University of California at Santa Barbara and former president, American Political Science Association; Walter P. Reuther, president, United Auto Workers, Detroit, Michigan; and Whitney North Seymour, New York City, former President, American Bar Association. Senator BAYH. We would like to note the presence at the hearing of Mr. Edward Kuhn, the past president of the American Bar Association, now a member of the commission. Also the presence of Mr. William Gossett, a distinguished attorney from Detroit, who also served on the commission, and who is presidentelect nominee of the American Bar Association; Mr. Don Channel, the director of the Washington office of the American Bar Association; and Mr. Harry Swegel of the Washington office of the American Bar Association. And now we will hear from Dean Storey. STATEMENT OF DEAN ROBERT G. STOREY, OF DALLAS, TEX., CHAIRMAN, AMERICAN BAR ASSOCIATION COMMISSION ON ELECTORAL COLLEGE REFORM Mr. STOREY. Mr. Chairman, and President Marden, and gentlemen, thank you very much for your cordial reception and kind remarks. I join with Mr. Marden in saying to you that we are grateful to you and your associates for going into this matter, and it has been a pleasure to work with you. I well recall that you spent the entire day with us at the first meeting, when we met here in Washington. Now, if I may at this juncture you mentioned you want to insert in the record the list of names of those who participated on the commission. If it is agreeable with the chairman, we would like to submit for the record not only the list, but this final report of the commission, if you have no objection. Senator BAYH. We would like to have that for the record, sir. Mr. STOREY. That will show who the people are, as well as what we did, and the recommendations in detail, and the reasons supporting them. Senator BAYH. That is an extremely persuasive document, let me say. Mr. STOREY. Thank you very much. (The document referred to appears in the Appendix.) Mr. STOREY. It is a privilege to appear before the subcommittee which has as its task the consideration and recommendation of an amendment to the U.S. Constitution on the subject of electing the President and Vice President of the United States. I deeply appreciate the opportunity to relate to the subcommittee the work of the American Bar Association Commission on Electoral College Reform, of which I had the honor to serve as chairman. May I say at this juncture, and departing from the text, we of the American Bar-and after consultation with you and your counselthought it would be wise to bring in non-ABA Commission members, and indeed there were seven members of the special committee of the American Bar which are directly accountable to the American Bar, and in addition eight from outside life, including one Democratic Governor, Mr. Kerner, of Illinois, one Republican Governor of Oklahoma, Paul Freund, of Massachusetts-Mr. Mike Gambrell, of Georgia. Then we were privileged to have the serious and enthusiastic services of a former Member of Congress, Ed Gossett, of Dallas, Tex., and William Gossett, of Michigan. And then another distinguished Member, former member of this august body, Senator Kenneth Keating. And then another past president, William J. Jameson, of Montana, who is now a distinguished Federal judge. And in addition to those introduced, Herman Phleger, of California, a distinguished lawyer, Mr. Walter P. Reuther, of Michigan, and another former president of the ABA, Whitney North Seymour. Now, immediately following its appointment in February 1966, the commission had its staff undertake a comprehensive study of the electoral college. This study consisted of an examination of the relevant debates at the Constitutional Convention of 1787, of the operation of our electoral system from 1787 to 1966, and of the numerous proposals for reform. This study, along with numerous literature in the field, was supplied to the commission in March 1966, and the commission convened in Washington, D.C., on May 19 and 20, 1966. At these initial meetings each member of the commission expressed his preliminary views on the subject of electoral college reform. These views revealed support in the commission for each of the major plans for reform-the proportional plan, under which the electoral vote of each State would be divided among the candidates in proportion to the division of the popular vote; the district plan, under which each State would be divided into districts comparable to congressional districts, the popular winner in each district would receive that district's electoral vote and the winner of the most popular votes in the State would receive two electoral votes; the unit vote plan, which would write into the Constitution the present practice of crediting all of a State's electoral votes to the candidate winning the most popular votes in the State, that is referred to from time to time as the winner-take-alland the direct vote plan, under which each qualified voter would have a direct vote for President. |