votes, at least those are Nebraska votes and Nebraska is identified as pro or con on this or that or any other proposition. If we are simply counting votes from coast to coast, 50 or 40 million, whatever it is, nobody pays any attention. There is no public awareness of where these States stand; for publicity purposes I am talking about. That is what affects the public. You bury the whole Middle West from Illinois clear west to California. It is a tremendous area of the United States in total counting of votes and amounts to very much. On the other hand, if those States such as the Dakotas, Nebraska, Kansas, Colorado, Utah, Nevada, Idaho, Montana, and so forth, cast those votes as States, I do not care how they cast them, at least they are still identified as being a State. This is where this State stood. This is where that State stood. I think it makes a much clearer pattern for the public to realize than does the other thing.

Senator HRUSKA. Of course, that is part of the Federal pattern you were talking about a while ago. Just hastily reading the membership of the commission, and not by way of any criticism but simply a statement of fact, the two smallest States represented by the members of that commission are Montana, the home of Judge Jameson; and Oklahoma, represented by Governor Bellmon.

Mr. Davis, let me ask it this way. And, again, I do not mean to criticize the fine place that the American Bar Association has in America. It has done wonderful things and I know you have dedicated yourself to much of its administration over past decades. It is not a matter of personal criticism or even criticism of the association. But suppose a proposition was being debated in the house of delegates and a decision of that body was being called for in regard to changing article V of the Constitution. Suppose there were a proposition to strike that method of amending the Constitution in favor of a nationwide direct popular vote. And in the process of forming that proposition the American Bar Association would only devote such time to it as they did on this particular electoral college function. Would you feel very comfortable about that kind of a treatment?

Mr. DAVIS. Well, I do not feel too comfortable on several of these things that the American bar has dipped into. This issue here is legal, sure; it is constitutional law. But I think we have got to rememberI regret to say this terribly, but not all the wisdom reposes in the minds of the lawyers. But here is a question that is a political question. Legal, sure, the machinery is legal machinery, but these are, many of them, political questions. Many of our great political leaders have not been lawyers necessarily. They are people who understand government. There are a lot of people in the United States who understand just as thoroughly as do the lawyers. So it becomes a question of how much weight. I suspect that it is the obligation probably of the law of society to undertake as best they can to give guidance. But I do not think they are recommendations that need to be considered as coming from someone on high because there are plenty of other groups who also understand government and understand it very well. And, of course, in the middle of these controversial things the bar association does not help itself too much by jumping into the middle of the controversy even though I grant it has some public responsibility to express itself.

Senator HRUSKA. That is all the questions I have, Mr. Chairman.

Senator BAYH. Well, thank you very much, Senator Hruska.

If you have time, Mr. Davis, I would like to explore your thinking a bit further because you have had a vast array of experience I notice here that begins at the ripe age of 25 as attorney general of your State to date with the many other accomplishments already listed in the record.

I have made a few notes here. If they lack continuity, please excuse me because I made them as you touched on a point I wanted to explore further.

Now, the bar association does not need any defense from myself or my colleague. It has served illustriously over a long period of time. I must say as one member of the American Bar Association, I think it has a legal obligation to explore things that need to be changed even though they are very controversial. I would like to point out that the bar first met on May 19 and 20 in all-day session in downtown Washington and a night session on May 19. They then had continuous communication with members of the staff who were assigned or delegated the responsibility of research. The bar met all day and most of the night on October 7 I understand. There you have almost a 6-month lapse of time for study. I just want to make sure I understood you correctly. The motion with the vote of 130 to 103 was a motion to send it back for further consideration?

Mr. DAVIS. Yes.

Senator BAYH. So the 103 members that could so vote could not be reasonably interpreted as voting against it but rather as voting for further study?

Mr. DAVIS. That is perfectly right, yes.

Senator BAYH. Now I want to compliment you for the study you have put into this. There have been numerous changes that have transpired since our forefathers first established this electoral college. There was great compromise to put it together. There was little education and experience in the advocates, our forefathers, and correctly so. But since then we have had the development of a great public education system, a communication network, a transportation system. We have abolished slavery. A significant number of our early citizens could not vote. I feel that the original system, although adequate at the time, is fraught with dangers at this time and there is reason to look at ways of changing it. I do not want to put words in your mouth, so if you disagree with me

Mr. DAVIS. I agree with all that, Senator. Go ahead.

Senator BAYH. I think you were aware of a very basic problem when you discuss the small versus large State problem. You also, in talking about the evidence that the committee had considered, observe that we had not had as extensive points of view presented as you desired. Political leaders and people who knew how the system worked were absent.

Are you familiar with the witnesses we had last year?

Mr. DAVIS. Mr. Senator, all I had were 30 or 40 or 50 witnesses. and a big stack of statements the Senator's office sent out to me. I have no idea how many you had before this.

Senator BAYH. This is a continuing study and I must say, speaking only as one member of this committee, I do not believe the committee is committed to any particular proposal, although some of us have

introduced proposals. All we are trying to do is find the best solution. I think I should point out for the record, though, that the bar panel which reached a nearly unanimous finding, included two Governors, Dean Storey, a noted scholar, was there. They had noted political scientists and the dean of a law school. Paul Freund was on the panel. Ken Keating, a distinguished former Member of this body and now a judge in New York, was a member. I think they brought to bear their various philosophies. Walter Reuther of the UAW was represented. A former national president of the chamber of commerce, William T. Gossett, who is legal counsel for General Motors, was a member.

Mr. DAVIS. And the incoming president of the American Bar. Senator BAYH. Yes. So I think we have had a lot of people give some attention to this. They have considered this problem of large versus small States. I think it is interesting to note some of our colleagues who have joined in the cause by sponsoring legislation. I note Senator Alan Bible, from Nevada.

Mr. DAVIS. I am quite familiar with that list, Senator.

Senator BAYH. There is a majority, a significant majority of men and women, counting Senator Smith of Maine from States that are considered small.

Mr. DAVIS. That is right.

Senator BAYH. So I am wondering if they as sponsors would not share the belief of several witnesses-I am sure you have read their testimony-that from a practical standpoint the small States have a great deal to gain by direct election. Now, as you pointed out, the 12 large States can elect the President. Many of the large States, in fact, most if not all of the large States are closely divided politically. Many have one Senator of one party and one Senator of another, or a Governor of a different party or have had in the last 3 or 4 years. For this reason it seems to me much of the campaigning could well be in these small States. Attention will be paid to small States now if we had a direct election. The large States will not continue to have a stranglehold. I do not know if you would want to think out loud on this point. But if people in small States are convinced they are not gaining as much as they are losing, we will never get it ratified.

Mr. DAVIS. No, I do not agree with that. That is a perfectly valid argument. You accomplish the same thing there as you do when you abolish the winner-take-all rule. You could do that under the system of district direct election or under a system of a national popular vote, either one of them. The candidate, as I said a moment ago, the voters in Nevada have got to be paid some attention because they are a part of this total.

Senator BAYH. Of course, I think it is good if we create universal interest.

Mr. DAVIS. Yes; I agree with that.

Senator BAYH. One other thing I might point out. It has been closely related here. It has been my thought that direct election more than district plan would help strengthen the party system in the traditionally one-party States because now a Democrat in a Republican State has little desire to get active because he knows he is going to lose his vote at the State line or district line. It is the same with a Republican in a traditionally Democratic State. If we had national election where all the voters could participate, then that extra 10,000 he as a Democrat would get in a Republican State would encourage them to

participate. You understand what I mean, where the minority party enhances its position though it still loses the State.

Mr. DAVIS. There is no disputing that, Senator, at all. You are perfectly sound on that. But the point that bothers me and the heart of this statement, as I see it, is the fringe things that grow out of it. The power of Congress to control elections. And I have watched this thing a long time and we just cannot stop once we get started down that road, because there will be something happen in Alabama, Nebraska, or maybe Alaska, but it will constitute a crying need for extension of the Federal election laws to control this minutiae thing which has gone on somewhere. So you keep on going until-like I said, I do not think my picture is overdrawn-we end up with a completely federalized election system. That is really the thing that disturbs me as much as anything else. Most of these problems can be met. For instance, to get rid of the general ticket thing

Senator BAYH. That would not take a constitutional amendment. Mr. DAVIS. Well, it would not if the States would do it, but they will not, you know, so that is that. But when you get over to this question of extension of Federal power out into these communities to be sure that this counting board is honest, to be sure this registration board is clean. I do not know how you escape an army of Federal officials inspecting, supervising, counting. I do not know how you get away from it.

Senator BAYH. Let me explore that in a little more detail because, frankly, this concerns me. I notice in pointing out the increase in supervising fringe controls of other legislative agencies you said you were not critizing that, you said you thought there was a need, but you were fearful if we had direct election this would then bring these controls into another area. First of all, are you familiar with the Supreme Court decision, Katzenbach vs. Morgan? Many look at this case and interpret it as meaning Congress already has the authority in many of these areas right now. In fact, they have gotten into many areas such as discrimination in providing Federal registration. So I am not too certain you and I sitting here can say that the passage of direct election will cause Federal control.

Mr. DAVIS. Senator, when it comes to prophesying what might happen, I do not think any man knows where we might go with some of these decisions opening up this whole thing for congressional action. Senator BAYH. I will not go into that thinking with you because it is pretty far afield.

Mr. DAVIS. Well, Senator, one of the best examples of what theoretically could happen is the attack made by Delaware and 15 or 20 other States attacking the whole system of election which the Court refused to take jurisdiction of. But suppose they take jurisdiction of it again next week or next year, there is no telling what may come out of that.

Senator BAYH. First of all, I just listed some of the things which concerned you. For instance, the day on which elections would be held. I think from a practical standpoint this could be handled in a wayMr. DAVIS. Right now, do we not have the date of the national election pretty well fixed?

Senator BAYH. Yes. From a practical standpoint, I do not want 50 different days for election of the President no matter what system we have.

Now concerning the places and manner of voting. Here, again, I do not think any of us who are thinking seriously about the direct election proposal wants to get the Federal Government involved in the places and manner of voting. I must admit to you the matter of inclusion on the ballot has some significance. If you have an election for President and the State arbitrarily determines it is not even going to let its citizens have the right to vote for one of the major political parties' candidates, it seems to me there is something undemocratic in that. Senator HRUSKA. Would the Senator yield?

Senator BAYH. Yes.

Senator HRUSKA. I assume the chairman is in favor of the decision to let the people decide.

Senator BAYH. I think the Senator is asking a leading question here. Senator HRUSKA. Not a leading question. I find a strange inconsistency between the argument against letting the people decide on a proposed amendment to the Constitution under the present system and the arguments for giving the people the right to decide on election of the President. There is a strange inconsistency in this and I am going to read the transcript very carefully and maybe I can quote Senator Bayh being in favor of letting the people decide.

Senator BAYH. I think you probably can.

Senator HRUSKA. If I can fairly do so, I shall.

Mr. DAVIS. Senator, under that I can already see possibilities that the State shall determine the places and manner of holding the election. Well, now, we all know that there is a wide open place for Federal legislation. The places of holding an election. What does that mean? Does that mean designation of polling places so that you do not ask some of these groups to vote in areas, for instance, they know are hostile and where they are afraid to vote? The point I am making is, you see, it is wide open for the Federal legislation running elections. Senator BAYH. I think we can draft a constitutional amendment embodying the direct election and not give that authority to the Federal Government.

Mr. DAVIS. Well, you will pardon me, but you know there will be a prompt hue and cry the Federal Government should have it because the Federal Government is the only one who really can protect our rights. And away we go.

Senator BAYH. I am not too worried about every hue and cry. All I am concerned about is getting a good system that will work. Here is what we have now in one of the major Senate Joint Resolutions, Senate Joint Resolution 2, which I introduced, and I am not alone in this. Senator Dirksen introduced a little different legislation. But here is the only area that describes some of these fringe areas you are worried about.

"The voters in each State shall have the qualifications requisite for persons voting therein for Members of the Congress."

Mr. DAVIS. That is standard language.

Senator BAYH. Yes, that is standard language. In other words, what we are trying to do is to keep the States from rushing to lower the voting age just to get additional power. You know as a former