When I spoke of inequities or distortions-I spoke of the tension between countervailing distortions. It seems to me clear that on balance the advantage given to the closely contested large industrial States under the present system outweighs the apparent bonus, if you will, to the smaller States in the two votes.

Senator HRUSKA. I would grant that comment as applicable to the present system. What about the kind of system-the kind of proposal that is made by Senator Mundt in his Senate Joint Resolution 12, where he would give each voter in each congressional district three votes, one for his Congressman, and two for the Senators of the Stateand then casting those votes by congressional district for one candidate or another, rather than by State. Then the advantage of this popular election plan is kind of dissipated, is it not, and there is preserved to some extent the so-called inequity of the bonus to the smaller Statesa bonus which, if it is inequitable or not is highly prized by some of the smaller States. And that would preserve it; would it not?

Dr. FREUND. Yes-but at the cost of certain disadvantages being carried forward from the present system.

Senator HRUSKA. And what are those?

Dr. FREUND. Well, one is that there would be no assurance against a candidate winning the popular vote in the country and losing the election.

Senator HRUSKA. That is right. But that would be a price that would be paid in exchange for giving a little weight to some of the smaller population States. And then we would have to weigh those equities and weigh the merits of those two positions; would we not?

Dr. FREUND. But I think that is the one price we ought not be willing to pay.

Senator HRUSKA. Don't we have that price paid every session of Congress, when there is a casting of votes in the Senate Chamber? And if you added up the popular votes that are the population of the States represented by each of the Senators, we have that type of inequity visited upon the Republic all the time-if it is an inequity. Because often you will find the votes of populous States-Senators from populous States cast on the losing side, and yet they are more than counterbalanced by votes cast by States having far less population. That is why I ask, How far do we want this concept pushed of erasing the so-called inequity of the bonus to the smaller States? It is a bonus that we kind of like in the smaller States. And, in fact, we think it is just about the only thing that stands in the way of being totally annihilated, totally wiped off the map as being of any representation

at all.

Dr. FREUND. Well, Senator, I don't think that two-man bonus to the smaller States has been very significant in the Presidential election system. Far more significant, I think, has been the dominant influence of the large, closely contested States.

Senator HRUSKA. That is because we go by State units. That would be wiped out under this Mundt plan. That would be wiped out. And we would go by districts-which are pretty closely-after 1972, if the present bill that is before Congress is passed, no district may deviate more than 5 percent from the average, 10 percent from the low to the high. And we would cast the votes by district.

So in New York there would not be 46 votes, or whatever they hadthere would be one vote per each district, and then two at large. So you would not have that desire nor that tendency to concentrate the campaign on New York, because no one of those districts in New York is any greater than in Nevada, Nebraska, or Iowa, or South Dakota, or any place else.

Dr. FREUND. Yes. But the district system would intensify problems over gerrymandering. It would also mean that the votes of the inhabitant who unfortunately voted for the loser in his district would in effect be discarded at that stage, and thus carrying on one of the distortions of the present system, though at a slightly lower, lesser level; that is

true.

It seems to me, however, if I may say so, Senator, that the big point is not the two-man bonus in the count. The big point is the leverage which the large States now have, and which under the direct vote system would presumably yield to a more national appeal on the part of the candidates and even perhaps to a wider range of selection of candidates by the conventions.

I certainly yield to no one in devotion to the federal system. But it seems to me that in the election of the President, we ought not to make our stand for the federal system.

The Presidency is our great single national office, and the importance of State lines, of State responsibilities, of State independence, experimentation, innovation, diversity, and all the rest, profoundly important as they are, seem to me to have a minimum of relevance to the election of the Presidency. And under the direct popular vote, the States would be equalized-that is to say, one man would be the equal of another wherever he resided. The campaigns would be pitched on a more national level.

Voter turnout would be encouraged. Even under the district system, if a district was predominantly of one party, there would continue to be discouragement of minority voting.

Senator HRUSKA. Well, I am glad to hear you say those kind words about the federal system. But you know it is hard pressed in some ways. It is now contended by some that the case of Reynolds v. Sims will be used as a foundation for putting the Senate of the United States on a one-man, one-vote basis. If so, my State of Nebraska will have to share two Senators with about five other States, which go all the way northwest to the majority leader's native State of Montana. We are kind of concerned about it. This contention is being made. And the proposition is being advanced, notwithstanding article 5 of the Constitution, which says that no State shall be allowed-shall be deprived of its equal representation, because it is argued that the 14th amendment was ratified 75 years after the article 5 was approved by the people of the United States, and the Supreme Court based its decision in Reynolds v. Sims on the 14th amendment, which therefore supersedes article 5.

Now, whether that is crazy or not-10 years ago, 5 years ago we thought it would be crazy for the Supreme Court to say they are going to enter the political thicket, which all of America is in now. And so I do not know about this business of calling things crazy, because these days sometimes crazy things happen.

What do you think about that proposition?

Dr. FREUND. Well, I sympathize with your generality to the extent that the craziness of one generation becomes the norm of another. Senator HRUSKA. Or the wisdom of the other.

Dr. FREUND. Likewise.

But as applied to this particular issue, I confess I really had not heard that argument advanced seriously.

The Supreme Court, of course, in its opinions was at pains to differentiate the congressional analogy, pointing out that it was entrenched in the Constitution.

My impression is that if this argument is made, it is made by opponents of the reapportionment decisions, and they are not always the best guides as to the meaning of a decision.

Senator HRUSKA. On the contrary. That argument is advanced and was advanced in the Senate of the State of Illinois by one who opposed Illinois ratifying—that is, approving a resolution calling for a Constitutional Convention. And this witness was opposing that resolution, and he was asked whether or not this doctrine in Reynolds v. Sims should apply to the U.S. Senate, and he said it was very acceptable to him and that he would support such a position and advocated it. And he is a substantial man, representing a very powerful organization, political and otherwise in the State of Illinois.

So the idea is out. And it is being worked at just as the idea of applying one-man, one-vote to State legislatures started to get a workout 25 years ago. And lo and behold, here we have it. And I just want to suggest that now is the time to voice some objection to it and protest and to gird our loins for such battle as may occur in that era. Because we small States-and I speak at least as a temporary representative of a small State-we are not going to give up easily on that one.

If there is any possibility that the abandoning of the two-vote margin, two-vote bonus to small States would mean any advance in this idea of applying Reynolds v. Sims to the U.S. Senate, you can bet you I will resist it as hard as I can.

Dr. FREUND. I can only say, Senator Hruska, that it had never entered my mind as being related to the proposal before us. And I would be glad to appear, if it ever came up, and present my views in opposition.

Senator HRUSKA. On that occasion, if you are as persuasive, and logical, and forceful as you are this morning, I would take great comfort in your appearance at that time.

Senator BAYH. If the Senator would yield-there would be 99 of his colleagues who would share his view.

Senator HRUSKA. I am wondering. It should be 98-because one of our colleagues has already declared for that position.

Senator BAYH. May I ask a practical question? In what way does the Senator believe the district plan goes part way, and yet preserves for the small States the advantages now possessed by the large States as far as emphasis in the campaign.

Do you suppose the large States are apt to give up this advantage without going all the way?

Dr. FREUND. Well, that is the other side of the coin.

I think there is a certain program, as you say, trade off here. And I think the large States, if they support direct popular vote, are actually giving up more practical advantages than the small States are, and

therefore could be expected to anticipate that the two bonus votes would go in the election of the President as a small quid pro quo. And it seems to me a rather irrelevant one.

Senator BAYH. Let me ask from a practical standpoint, how do you get two-thirds of the Senate and three-fourths of the legislatures to support direct election if we are unable to get both the small States and the large States to see that they have something to gain from this. They both could argue the other way in that they have something to lose, and thus we get no change whatsoever.

Dr. FREUND. That is right. There is a trade-off here, it seems to me. Senator BAYH. Could you speak about the federal system argument more in detail.

We had the executive secretary of the Liberty Lobby, Mr. Hicks, yesterday, who in a rather extensive colloquy here finally conceded that the district plan which he was championing still permitted the disenfranchisement of many people, we decided that the district plan just divided it up into smaller blocks of disenfranchisement, rather than State blocks.

He also agreed, as I recall, that there was a possibility of a President being elected who had less votes than the man he was running against. But in the final analysis, the bulk of his whole argument rested on this federal system. As I recall, he was unable to enumerate just what ways damage would be done to the federal system.

Could you think out loud about that information. I would like for you to detail for the record a bit more the original statement you made about the two votes not automatically being cast for the winning candidate.

Would you deal with the contractual relationship which has been presented.

Professor Kirby suggested that Chisholm v. Georgia and McCullough v. Maryland dealt with that, and laid that issue to rest. But I think there are some of our colleagues that strongly, and in all good conscience, feel it would be going back on the agreement made long ago.

Could you be a bit more specific in the details?

Dr. FREUND. I will try, Mr. Chairman.

These arguments couched in broad, general terms of federalism or the original plan of the framers always seem to me dangerous because they tend to cloak very practical pragmatic arguments that somehow are not exposed when they are garbed in these general terms. But to first try to deal with the argument in its own terms— historically it has been said that the three most important words in the Constitution were the beginning of the preamble, namely, "We, the people of the United States," indicating that this document, this charter was the charter adopted by the people and not by a league of States.

It is significant, I think, that it was presented for ratification to popular conventions in the States, to be sure, but not to the legislatures of the States.

More particularly, dealing with the original understanding of the electoral college, the electors were quite at liberty, and indeed expected to vote for persons of their own choice. They were to be the good and wise men who would in truth elect the President-not bound by instructions from their States.

Consequently, I think an appeal to the Federal tradition is rather misplaced here.

It seemed to me that the real issues are the practical issues of the party structure something that could not have been in the minds of the framers because there were no political parties, and indeed Madison and his colleagues distrusted parties or fractions, as they were called.

Our problem really, it seems to me, is the Federal structure of our political parties, which I for one would not like to see lost, because I think our political parties reflect an accommodation of interests that has prevented the growth of ideological polarized splinter parties such as we see in some European countries, and which I, and I think most Americans, would be very very distressed to find taking hold

here.

How are we going to preserve the Federal structure of our political parties under a direct popular vote?

It seems to me there are several answers.

One is that the elections for Congress will not be affected. They will continue to be on a statewide or districtwide basis, encouraging the continuance of territorial rather than ideological groups, encouraging, that is, the accommodation of interests under the umbrella of a party. Furthermore, the national nominating procedure will not be affected, and there the State political organization will continue to have their say, and indeed if the larger States can unite within themselves on a candidate, they will continue to have the influence which they would insist a large State is entitled to, but at the stage of nomination, where there is a great deal of give and take before the candidate is selected.

So I don't think we are headed for nationalization of our political parties in the sense of obliterating the territorial nature which I thor oughly agree has an ameliorating effect on the sharpness of our ideological controversies.

That, it seems to me, is the real problem today-not trying to match quotations from 1787 over whether this was a popular Constitution or an interstate compact or something else. I think those words are rather vague at best, and in the context of presidential elections would have to be interpreted much more closely than simply by a general slogan.

But as I say, to repeat, meeting on their own around those who look to the original understanding, I would point to the key words, "We, the people," and also to the understanding that the electors were not instructed by their States, but were to be free agents electing the President to the best of their judgment and knowledge.

I am not really very impressed by appeals to general statements regarding the nature of our federal system.

I am affected by a much closer analysis of what one plan or another would do to the structure of our political parties.

Senator BAYH. I appreciate your discussion of that in some detail. That will be very helpful in the record.

Could I ask one other point? I do not mean to prolong this over a long period of time. But you did mention the election code provisions or standards in your testimony.

You stated you thought there needed to be some safeguards, some power retained by the Congress.