ELECTION OF THE PRESIDENT

TUESDAY, JULY 25, 1967

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to recess, at 10:08 a.m., in room 457, Old Senate Office Building, Senator Birch Bayh presiding. Present: Senators Bayh and Hruska.

Also present: Larry A. Conrad, chief counsel; Clyde Flynn, minority counsel.

Senator BAYH. Our subcommittee will convene this morning.

We are glad to have Mr. Clarence A. Davis as our witness this. morning. Inasmuch as he is a constituent of my distinguished friend and colleague, Senator Hruska, I will give him the privilege of introducing Mr. Davis this morning.

Senator HRUSKA. Thank you, Mr. Chairman.

It is a privilege and, of course, a fine position to be in to be able to present Clarence Davis to you. I shall not engage in any lengthy introduction. It was my suggestion that he incorporate into his statement his background as a lawyer and student of government and of political history and of political action. And when I say political action, the "p" and "a" in those words are small letters.

Mr. Davis is a distinguished member of the Nebraska Bar Association, the Federal Bar Association, the American Bar Association, and a member of the house of delegates and the board of governors of American Bar Association. He has been in the general practice of law for a long, long time. He was at one time attorney general of my State, Solicitor and Under Secretary of the Interior Department.

I, for one, am looking forward to his testimony this morning on the matter of constitutional amendments affecting the electoral college. I welcome you to the committee room, Mr. Davis.

STATEMENT OF CLARENCE A. DAVIS, LINCOLN, NEBR.

Mr. DAVIS. Thank you, Senator. Mr. Chairman, I am very pleased to be invited to come here today to testify regarding these proposed constitutional amendments which I consider to be of much greater importance than a casual look suggests. I think every witness who appears here ought to state his qualifications to testify that we may judge of his credibility and his knowledge of what we are talking about. For that reason, gentlemen, I have put a little obituary at the beginning of this statement so that it would circulate along with the state

ment.

Senator BAYH. Let us hope it is a long while before it proves to be an obituary.

Mr. DAVIS. Well, I do too, but the calendar suggests otherwise. I am a lawyer, a resident of Lincoln, Nebr., with offices also here in the District. I have practiced law for more than 50 years; my pro fessional colleagues have been very good to me. I am a past president of the Nebraska State Bar Association, a past president of the Federal Bar Association, here in Washington, a longtime member of the house of delegates and presently a member of the Board of Governors of the American Bar Association.

I was elected attorney general of my State at the ripe age of 25, reelected and later elected twice as a delegate at large to two national party conventions, and I have been an unofficial counsel to most of the Nebraska Governors of both political parties since that time.

I have watched the political winds that blow ever since 1918 when I traveled with the late Senator George W. Norris, who incidentally began his political career in an office over my father's bank in a small Nebraska community.

I have been exposed to the blandishments of Washington for 10 years as Solicitor and Under Secretary of the Interior Department without contracting Potomac fever, I am very glad to report. I am speaking only for myself and not for any of the numerous organizations of which I am a member or an officer.

I want to apologize for the lack of documentation of this statement, but the short time afforded me and the absence of the large staff which some of these other witnesses have had has made it impossible.

I have reviewed much of the testimony this committee has received. I am struck with two interesting observations:

1. You have had few, if any, witnesses from west of the Mississippi River-but there is a lot of the United States out there which holds a large part of the future of this country.

2. You have had many theorists, constitutional lawyers and learned gentlemen, but not too many people (politicians, if you will) who actually know firsthand how the electoral college system works and what might happen as a practical matter as a result of some of these proposals. Maybe such people should be discounted since they are, of course, the sinners who could precipitate the numerous and possible dire consequences that the theorists worry about.

The question of the method of selection of the President was one of the troublesome questions confronting the delegates in the original Constitutional Convention and there were a half dozen suggestions:

Let the Senate elect the President. But that was opposed first, because it was considered in conflict with the doctrine of the separation of powers and made the President heavily obligated to the Senators who had elected him, and secondly, it was said that this would tend to create in our country an aristocracy consisting of the President and Senate, self-perpetuating and all powerful.

It was suggested that Congress should elect the President, but that seemed to be open to nearly as much criticism as was the first suggestion.

It was next suggested that the States, as States, should elect the President, but, as you would imagine, that was promptly vetoed by the larger States since it gave them no greater standing than many of their smaller sisters.

It was proposed that the legislators of the States elect the President, but because of lack of communication facilities in those days, it was felt that the legislators could not know enough about the respective candidates to be qualified to choose.

Lastly, of course, this idea of the direct vote of the people was considered. It met the same opposition that it meets today. That is, it tended to destroy the identity and the power of the smaller States, Delaware and Maryland particularly at that time, and it was said "We will be without an identifying voice" and again it was said "We will be swallowed up by New York, Pennsylvania and Massachusetts." Like many other vital parts of the Constitution, the electoral college plan was a compromise intended to preserve the identity of the States, intended to preserve the separation of powers and, of course, intended to preserve the rights of the people's representatives to choose. It was hoped that the electoral college would make an independent choice in its selection of the President. It has, of course, not worked out that way. The self-consciousness of the States was very great at that time. I think we should remember that we were founded as a Federal Republic of sovereign States.

At least in my day, every eighth grader was taught of the remark attributed to Franklin at the close of the Convention in which he said "We have given you a republic if you can keep it," and we further recall Gladstone's great tribute to our Constitution in which he said in substance "It was the greatest document ever struck off by the hand of man for the government of a free people."

It must be remembered that our Constitution was drafted in the period of the French Revolution when heads were falling and the mobs, a little like some of ours today, were in control of Paris with willing demagogues to lead them. Admittedly, the present electoral college plan is not perfect, and admittedly, some change may be in order. I do not believe, however, that the late violent language of the American Bar Report is quite necessary in which the present plan is characterized as "archaic, undemocratic, complex, ambiguous, indirect and dangerous."

The electoral college at least recognizes and protects the Federal system and preserves "the republic of sovereign States." And I hope, gentlemen, those are not obsolete words in Washington today.

From all of the testimony before the committee, it is apparent that there are two fundamental weaknesses in the present plan.

First, is the adoption of laws by all of the States which result in the candidate who carries the State, receiving all of that State's votes in the electoral college ignoring completely minority votes. This plan described variously as "the general ticket," "unit voting" and "winner take all," I think we must all grant, offers some evil and misleading possibilities. I think we need look no further back than 1960 to demonstrate this, and I fully agree that it is an error which ought to be corrected.

The second principal objection running through all of the testimony is that the electors are not legally bound to vote for anyone in particular and that they could double cross the voters and elect Joe Dokes or John Smith. The fact that in 200 years, however, there seems to have been only five instances in which electors have not carried out the voters' instructions, it seems to me, renders this argument pretty negli

ible considering the thousands of electors that have served during this long period. I do agree, of course, that the electors should be bound to carry out the voters' instructions.

The third objection which has been made a time or two in this testimony, before this committee, but lurking in the background and timidly expressed, is that the small States have three electors regardless of their size or population and that this ought to be changed. I think I should remind you gentlemen of the Senate that if that doctrine is acceptable for the election of a President, there is, for the same reason, no excuse for having two Senators from each of our underpopulated States.

I would direct the remainder of these remarks particularly in opposition to the plan of the direct election of the President which seems to have attracted substantial support in many quarters. I oppose that plan because I think it is a step towards the conversion of this country into a pure democracy and is leaving the door ajar a little for the ultimate destruction of the conception of a republic of sovereign States. Under the plan of a general direct election of the President, it must be rather obvious that the States, as such, lose their identity. With the present majorities in New York, California and perhaps Illinois that run frequently to more than a million votes, it seems to me that the votes of at least 13 States which cast less than 400,000 total votes and of more than 20 States which cast less than 600,000 votes become pretty immaterial as against these enormous majorities piled up in our great metropolitan areas. Certainly, the relatively few States which now have three electors in the electoral college have lost their voice when we go to the direct election of the President. Have we arrived at a point where we no longer recognize the existence and separate autonomy of these smaller States? Under the direct election plan, it is easily possible to secure a large enough majority in New York or California or Pennsylvania, or certainly by all three of them, to completely nullify the total vote of the entire Middle West. I, for one, am not yet ready to bury the voice of large areas of this country with the great resources that comprise most of the Western United States. I want the identity of these States electorally preserved.

I think it is impossible to go to the system of direct voting without that being followed by other Federal controls of our elections and of what other things I know not. I am actually more concerned with the fringe legislation which will grow out of this proposal than I am with the proposal itself. To those of you who have been Members of the Senate for a substantial number of years, I am sure you have observed the constant enlargement of Federal controls in every aspect of American life. We pass a perfectly proper and needed simple piece of legislation and within less than 20 years, we find that the fringe effects of that legislation have been expanded and expanded until they cover a vast field not contemplated by the sponsors of the original legislation. But it is said here that the States will be in control of the elections. That I do not believe. The report of the distinguished gentlemen comprising the American Bar Association Commission confesses its own weakness in that respect in its own recommendations. For instance, it recommends that the Congress be empowered to determine the days on which the original election and the runoff, if necessary, be held. It recommends that the places and manner of holding the presidential election and the inclusion of names of candidates on the ballot shall be