Изображения страниц

prescribed by the State legislatures but with a proviso that Congress may at any time by law make or alter such regulation. It provides that Congress may adopt uniform age and residence requirements. But to enforce these powers, is it not vital that Federal employees enforce them or at least supervise them or check on them? If Congress trusts the States to do this, it will be about the first time Congress has relied on the States to enforce Federal law. I would hazard a guess, judging from long observation of the past extension of Federal power, that, if this measure for direct election of the President is adopted, within 5 years we will have a Federal Bureau of Elections and that within 20 years, we will have a bureau of at least 500 people and Federal inspectors with Federal clerks of election, Federal judges of election, and Federal counting boards in every county and sizable municipality within the United States.

That seems to me to be a glorious political prospect.

And once we start down this road, how long will it be before there is a movement for a Federal referendum on the acts of the Congress utilizing these same Federal voting lists?

Let the people rule will be the cry. It has been before whenever these measures have been adopted.

May we go still further and provide for the initiation of laws by the same method! By the elimination of the identity of the States, we start a long chain reaction.

Is this picture overdrawn? I do not think so. Our recent history shows that each time the Federal Government has begun to assert jurisdiction in any particular field that it has given rise to a tremendous extension of the Federal Establishment supposedly necessary to handle it. For instance, I can remember very well—and I wish I was not old enough to remember-when the Federal Power Commission was first established with three Cabinet members as the Commission and perhaps 30 to 40 people. It now has, I would guess, some 600 or 800 people and has extended its jurisdiction, and I am not critical of this, to every minute detail of the regulatory process. The same thing is substantially true of the Federal Communications Commission, the Securities and Exchange Commission, and when the Federal Government entered the field of social security and later of public health and medical care, I doubt if anyone knows the thousands upon thousands of additional people added to control all of the minutiae in these fields. Let me repeat I am not criticizing the entry into the field nor am I suggesting that less supervision would be desirable. I am only citing these as an almost certain prophecy of what will happen if the Federal Government undertakes to control directly the election of the President of the United States. I think this is even more true on this issue since the whole question of voting, elections, and possible State manipulation of elections is one of the hottest of our current political issues.

I am sure you will recognize my reluctance to disagree with the many distinguished lawyers in the American Bar Association, but I gain consolation from the fact that the American Bar Association is very far from being unanimous on this question. There was a division in the board of governors, and, as I recall, this report, now on file in your committee, was only approved by the house of delegates by a vote of 130 to 103 on a motion to remand the matter for further study.


Most of the argument submitted to this committee inveighs against the admitted weaknesses in the present electoral college, and with that I completely agree. It is the proposed remedy with which I do not agree. It is surprising to me that there has not been, at least in the testimony which I have read, more detailed examination of the plan of preserving the electoral college, but eliminating its weaknesses and avoiding what I think is this pitfall of Federal control of elections. I commend for careful study the plan of the election of the electors by districts more or less conforming to the present congressional districts and allowing each elector to cast his vote for the President who receives the highest vote in his particular elector district. This plan, of course, completely eliminates the complaint made of the general ticket or of the winner takes all within a State, and it might well be that the electors would be split between the various candidates just as the congressional districts are split between the party. But certainly it removes entirely the possible ground of complaint against the present system.

In the next place, it eliminates completely the possibility of infidelity by the electors because they must commit themselves as a matter of law as to whom they will vote for in the electoral college.

These are the two principal objections to the present plan, if not the only objections, that appear in the testimony of some 30 or 46 witnesses which I have read, and it seems to me that this district plan as set forth in Senate Joint Resolution 12 and some similar resolution adequately answers the defects now apparent.

May I summarize the district plan in this way:

1. It eliminates the general ticket, the unit voting, the winner takes all which is the primary objection of all of the proponents of change.

2. It stops the possibility of infidelity by the electors because they must commit themselves as a matter of law as to whom they will vote for in the electoral college.

3. It is a truly representative plan, just as representative as are the elections of the Members of the House and the Members of the Senate.

4. It avoids all the implications regarding our governmental structure that the direct election implies.

5. It avoids the Federal control of elections and the fringe legislation that will inevitably ensue.

6. It preserves and recognizes the identity of the States, all of them as independent units, but all as members of our Federal Republic.

That concludes the statement, gentlemen.

Senator Bays. Thank you. Senator Hruska, do you have any questions?

Senator HRUSKA. Thank you, Mr. Davis. Your statement will add balance to the record.

There is still a third plan that has been suggested, and that is the proportional plan. You are familiar with that, I presume?

Mr. Davis. In a general way.
Senator HRUSKA. Would you have any comments on that plan?

Mr. Davis. Well, I am far from being an authority on the plan of proportional voting. But it has been tried, as we know, in various States and various municipalities throughout the country. No. 1, of course, it involves some pretty complicated arithmetic very frequently.

Senator HRUSKA. We have electronic computers so that we would not even have to go to school on that point.

Mr. Davis. Yes, I know, and I hope they are more accurate than some.

But, anyhow, basically proportional voting is very apt to encourage a split in parties, it seems to me. You get into a situation where majority votes can be pretty well disintegrated by the plan of proportional voting. In an ordinary election we do not have too much of that, but we all do know that even under the present electoral system there has been repeatedly second or third or fourth or fifth candidates that have been brought in that have split votes and with proportional voting I think we get into that pretty seriously. As I say, I am not expert enough to express any firm opinion about it except I think most of the people have testified here, that which I have read, have a, on further consideration, have a rather dim view of proportional voting.

Senator HRUSKA. One of the features of present-day presidential elections, of course, is that there is always a concentration of effort and of money in the large in order to capture the electoral votes on a winner-take-all basis. It is true, is it not, that this particular feature would be dissipated by the district plan?

Mr. Davis. Yes, and I think that is one big advantage that we get out of the district plan. There is no sense pouring unlimited amounts of money into New York, Chicago and Los Angeles to get the total 40 or 60, whatever it may be, electoral votes from that State if you have got to do that in every district in the State. And I would expect those delegations in the electoral college would be split like the districts in Congress. New York is all split up. California is all split up. Unless the winner can take all. Then the humble little Congressman out here in Nebraska, little elector, is just as important as the fellow who comes from downtown Manhattan. There is no more sense in spending on the electorate in Manhattan than there is in spending it in Nebraska. It seems to me you get clear away from this attempt to handle it. You only need four or five States to have a majority in the electoral college, and obviously people go where the votes will be. Under the other system, I think they would be compelled to campaign and expose themselves all over the country.

Senator HRUSKA. You have testified, Mr. Davis, that you are a member of the house of delegates and the board of governors of the American Bar Association. What is the procedure of the house of delegates, the board of governors, and the membership of the American Bar Association in regards to proposals submitted to them?

Mr. Davis. Well, the American Bar Association cannot act in its totality because it has 120,000 members. The American Bar Association is entirely governed by the house of delegates. A representative of the house of delegates, composed of representatives of all of the States, representatives of the various large bar associations and represenatives of a lot lesser bar associations like the Federal bar, bar of the city of New York, that sort of thing. Theoretically, at least, you get a representative body of, say 300 people in the house of delegates. And that is the all-powerful organization of the American bar.

Now, the board of governors, as the name would imply, is represented by 16 people, 14 people, by representatives from various areas that more or less conforms to the Federal circuit court judicial districts, and the machinery is such that when matters are presented they are presented first to the board who, at a meeting, as there will

be in Honolulu next week, will spend 2 or 3 days going over them and making recommendations.

Senator HRUSKA. That is the board of governors ?

Mr. Davis. The board of governors will make recommendations to the house of delegates, because obviously in a large body like that you are not going to have people reading all these reports. I have my report for this meeting coming up next week. It is about 2 inches thick, I think. So there is an attempt made to screen all this through the board of governors. A great deal of it is perfunctionary, no controversy. And the board of governors' recommendations are well inclined to be automatically accepted except on certain controversial issues.

Senator HRUSKA. Well, now, in this particular area of reform there has been a commission appointed to study the matter of the electoral college, has there not?

Mr. Davis. That is right.

Senator HRUSKA. And its report was submitted to the board of governors ?

Mr. Davis. That is right.

Senator Bayh. Excuse me, if the Senator would yield ? That was submitted and unanimously adopted at the house of delegates meeting in Houston, was it not?

Mr. Davis. No, after some things in between, Senator.

That commission was appointed by Mr. Ed Kuhn who was then president of the American bar and a great lawyer from Memphis. And this distinguished panel is headed by Robert Storey who is dean of Southern University Law School. A great lawyer and a fine gentleman.

Senator HRUSKA. We have the names of the members of that commission. There are some illustrious names signatory to the report.

Mr. Davis. You have copies here. That commission worked for several months. They held only two meetings. One of those was a 1-day session. This report was, or course, largely staff written, but after a lot of debate it was adopted by the commission. And happily, in the sake of harmony was unanimously adopted. Senator Bayh would know as much about this as I would. Then it was submitted to the board of delegates in the house. I am sorry to say it was only submitted about 10 days before the Houston meeting. I thought it was an awfully short period of time for the ordinary member to get any real study into the thing or any research or anything else. After all, we are dealing here with a pretty profound constitutional question, it seems to me, and nobody knew what this committee was coming up with. They put out a beautiful report, there is no doubt about that.

Senator HRUSKA. Mr. Davis, there was presentation of this report 10 days prior to the meeting?

Mr. DAVIS. Yes.
Senator HRUSKA. The meeting of whom?

Mr. Davis. Of the board of governors and house of delegates who both met at the same time.

Senator HRUSKA. The board of governors acts independently of the house of delegates. Although in effect, it is an agency of the house of delegates, isn't it?

Mr. Davis. That is right.



[ocr errors]

Senator HRUSKA. But both the members of the house of delegates and the board of governors received the commission's report 10 days prior to this meeting at Houston ?

Mr. Davis. I assume so. I know members of the board did, and I assume the members of the house also did, yes.

Senator HRUSKA. Then what was the procedure ?

Mr. Davis. It was then submitted to the board of governors for the approval of the report, and there was substantial objection expressed. As you would probably suspect, I think a good deal came from members of the board of governors who were from States and areas which would be minimized by this direct election procedure. At any rate, I confess that I was one who spoke against the situation then without as much knowledge of it as I have gained since, because, frankly, when you get a report of that magnitude 10 days before a national convention, I would hazard the people who read it were in the hopeless minority. But, at any rate, on the vote the board was perpetrated.

Senator HRUSKA. You do not remember the vote?

Mr. Davis. Not exactly, but I would say it was probably about 9 to 6, something like that.

Senator HRUSKA. How many members are on the board of governors?

Mr. Davis. Fifteen, sixteen.
Senator HRUSKA. Are there 14 regular members and a president?

Mr. Davis. You see, there results in there being more than that, but many of the other officers are not technically members of the board and therefore do not vote. But there was a substantial split in the board, put it that way.

However, the approval of the resolution carried. Three days later, when the house of delegates met, it was presented in the house with Senator Bayh also present. There was debate in the house and a feeling on the floor that it was pretty fast action for a matter of this magnitude. But, on the other hand, there was a lot of pressure by the commission, by the majority members of the board, that in order to accomplish anything it had to be acted upon now so that this committee would have knowledge of the position of the association in its deliberations on testimony like I have given here this morning. With the result there was a motion for deferral for further consideration which I have said in this statement failed to carry by a vote of 130 to 103, which I thought showed very solid division of sentiment in the house on the question. It is true after the motion to recommit failed, that the vote on adoption was substantially greater, but I regard the motion of defer for further consideration as the real test of the feeling of the house on the subject.

Senator HRUSKA. You indicated that the board of governors was substantially divided and that much of the adverse sentiment to the commission's report came from representation of States that were relatively small. Is that true?

Mr. Davis. I think that, in fact, naturally it is true if anybody stops to think about the fact that we are conducting a national poll to get what, 40 or 50 million voters. There are about 400,000 people voting in Nebraska. You cannot find us in that situation. Naturally, the people who give any thought at all is reflected in that idea because the identity of the State is lost. I do not care if Nebraska only casts 17

« ПредыдущаяПродолжить »