The other way in talking about the attitude of the people and the reflection that you get in the people's mind, all that sort of thing, by a system that pays no attention at all to the State lines. I have a feeling I am probably being a backward soul.

Senator BAYH. I do not think you are backward at all.

Mr. DAVIS. That we have gotten to the point in many fields now where we are minimizing States. I think it is only fair to say I think the people of both parties pretty well agree if this thing keeps on going the way it is going you will end up with the States as merely administrative subdivisions.

Senator BAYH. I do not want to end up with that.

Mr. DAVIS. I do not think you do.

Senator BAYH. In direct election the votes would be delayed. They would be counted in each State and then the majority and the minority votes would be forwarded to Washington. Each State would do this separately.

Well, you have been very kind and I do not want to inconvenience you further.

Senator, I appreciate you having your constituent come before us and the exploration of his views have been very helpful for our record. Senator HRUSKA. Mr. Davis, is it not true that if we substitute for the question of a man's personality, which is the situation in the present presidential election, an issue that faces the House of Representatives, do we not have that same objection that all those who voted for Congressman X who voted with the losing side will be unrepresented? Mr. DAVIS. That is right.

Senator BAYH. If the Senator would yield.

If you really want to have a comparison, coupling the election of Congressman with the election of President is like comparing apples and oranges. If you want to have a comparison, instead have a districtwide election for Congressman and have an election in each county and each county then is going to cast one vote for their Congressman, and all those voting in the minority, those votes are going to be thrown

away.

Senator HRUSKA. On the longer pull, however, is there any relation between the direct popular vote provision, and advocating a nationwide referendum on a Federal statute?

Mr. DAVIS. Well, it occurs to me the next step, actually the next step is all you would do is have federal people looking over your shoulder and perhaps taking charge of the voting, really. Suppose there were some things you gentlemen passed down here that we do not like. I go out and say let us not ratify this, this does not represent the people fully.

Senator HRUSKA. Would that not be a total breakdown of the State system?

Mr. DAVIS. Well, I think so.

Senator HRUSKA. And four or five of the most populous States, if they put their mind to it, could enact Federal legislation to enforce their will on the inhabitants of the other States.

Mr. DAVIS. That is what it comes to, Senator, and no one is more aware of it than I am. There is beginning to crop up in our literature from time to time and some time in a process that scares me. The conception that Nevada ought not to have two Senators and New York

ought to have three or four. Now that is a long ways down the road and I do not think we need to worry about that this morning. The fact every State has three members of the electoral college on a popular basis, when possibly they are not entitled to three but only onehalf of one. That sort of thing. But it seems to me we are forsaking the whole basic concept of the republic of sovereign States. That is an awfully obsolete word but that is the way the country was founded just the same. Whatever we do to destroy that, it seems to me, leads us further and further into trouble. We take three electors from Delaware or some place else, take those away. We say, we will count their votes all right, but they cannot have three electors. Then someone will say, why should they have two Senators when the great State of New York has only two Senators? That is the kind of argument we get into. That is the kind of argument we get from people who do not understand government or do not care. It is along ways away, but I think we have started the pattern.

Senator HRUSKA. I sometimes wonder how far away it is when a committee of the Illinois Legislature explored the question of a constitutional amendment to allow one house of the legislature to be elected on basis other than population, the question was asked of a representative of one of the big labor unions: How do you stand on representation in the U.S. Senate, would you want that to be subject to one-man, one-vote rule? He was an honest man, frank man, and he said "yes." And he said, in substance, the day cannot come too soon. That will be on our calendar and we hope to achieve it. So we are not so far away.

Mr. DAVIS. That is right. I agree with you completely.

Senator HRUSKA. Thank you.

Senator BAYH. May I just make one observation? We have some 25 Members of the U.S. Senate who have signed their names to one form or another of a direct election proposal. That is not nearly enough to get two-thirds of the Senate. We may never get it. But I do hope we confine our considerations to the issues here. Of those extremely distinguished members of the American Bar Association panel, I would daresay not a single one would favor the abolition of the constitutional provision of two Senators from each State, nor would they be in favor of establishment of a nationwide referendum for Federal law. I think, as just one Senator speaking, that men of wisdom are not going to support either one of those two proposals. If I thought that would be the case, I would certainly not be proposing direct election. Mr. DAVIS. I am not worried about you, Senator. I am not worried about anyone in this room. I am worried about some time in the future. I was doing some research the other day on Indian law and I happened to look at the Congressional Record and some of the debates on the 14th amendment, and I found the debates of Senator Bollis and Senator George and somebody else proved conclusively they were as sure as they could be the income tax could never possibly be more than 4 percent. But there is a new generation, new people, new faces, new age, new demands.

Senator BAYH. Hardly a comparison to the argument we are going to abolish U.S. Senators, is it?

Senator HRUSKA. I do not know that it would not be. Because if they thought the tax rate would be 80 percent, would they have voted for the 16th amendment? I doubt it. They did not want 80 percent.

They did not want 60 percent. And they did not intend that it should be that high. But now look at the income tax rates. In order that the record not carry the implication that we feel any member of the Commission on Electoral College reform would favor the abolition of Senators, I must say I concur completely with the chairman here in saying that not a one would. But you see when that first step is taken, the step in itself is of such a nature it breaks down the States' structure and division. It breaks it down to a point that the onslaught of those that want to achieve one man, one vote for Senators becomes that much easier.

I remember reading debates in the Senate on the proposal of the 14th amendment on which there was a question, does this give equal rights to all people, and does it apply to the State legislatures? And the answer was "no." For two reasons. First, that such proposals had been debated in the House, and it was voted down. Secondly, if the application of the amendment to State legislatures was the result of the debates it never would have been ratified by the State legislatures of that day. Yet, in less than 100 years the Supreme Court said it applied to State legislatures. This was not the intention. The people on the Electoral College Reform Commission do not intend that States should have disproportionate representation in the Senate. But when you get into that, there is no stopping. There are other historical examples. So I think we should be rather careful.

Senator BAYH. So do I. If I may, I hope the worst thing that ever happens to this country is we let people vote directly to determine who the President is going to be. I, for one, think that could not be too tragic a thing.

Thank you very much, Mr. Davis.

Mr. DAVIS. Thank you, Senator Bayh.

Senator BAYH. We will be in recess until the call of the Chair. (Whereupon, at 11:37 a.m., the subcommittee recessed, subject to the call of the Chair.)

ELECTION OF THE PRESIDENT

WEDNESDAY, AUGUST 23, 1967

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to recess, at 10:05 a.m., in room 318, Old Senate Office Building, Senator Birch Bayh presiding.

Present: Senator Bayh.

Also present: Larry A. Conrad, chief counsel and Mary Day, chief clerk.

Senator BAYH. Our subcommittee will reconvene.

Our first witness is our distinguished friend and colleague, a member of the Judiciary Committee, from Missouri, Senator Long, a man who has been devoted to making adjustments in the outmoded electoral college system for some time, and who has worked very closely with the chairman of this subcommittee.

Senator Long, we are deeply grateful to you, sir, for coming and letting us have the expertise which you have to bring us this morning.

STATEMENT OF HON. EDWARD V. LONG, A U.S. SENATOR FROM THE STATE OF MISSOURI

Senator LONG. Thank you, Mr. Chairman.

I am grateful to you for letting me appear before your subcommittee this morning.

As cosponsor of Senate Joint Resolution 2, I would like to take this opportunity to reaffirm my belief that its passage is imperative.

The consideration of a possible amendment to the Constitution of the United States is the most serious and most important activity Congress can undertake. It is one which demands the utmost in study and careful reflection. We must maintain an open mind and continually recall the history and purposes of our governing institutions.

In the Constitution, our Founding Fathers created the most perfect instrument yet devised for the governing of a nation. When considered as a whole, our Constitution has withstood the pressures of time and change exceedingly well.

However, time has taken its toll on the constitutionally prescribed method for electing the President and Vice President. As a matter of fact, the electoral college was outdated within 10 years of the adoption of the Constitution.

The Founding Fathers of our country had very legitimate purposes in mind when establishing the electoral college. These purposes are no longer legitimate and are no longer being met.

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Previous hearings and statements from such organizations as the American Bar Association and the U.S. Chamber of Commerce, as well as statements by my colleagues here in the Senate, have amply demonstrated the ineffectiveness and needlessness of the present electoral college system. A significant statistic was presented by Senator Burdick as a result of his recent poll of State legislators. Fifty-nine percent of the 2,500 legislators responding favored a change to the direct election system and 90 percent favored doing away with the electoral college. Those favoring direct election represented small as well as large States.

Reform is long overdue. There have been several proposals for reform. But I believe only the proposal for direct election of President and Vice President will do the job. Why is direct election in the best interests of the American people?

First. Each citizen should get the full and equal benefits of his rights to vote and of his vote itself. The only way this can be done is through a direct election. This gives one vote to each citizen. In direct election there is complete equality between citizens. Direct election is the only system yet known to man in which full equality can be guaranteed.

According to figures supplied to this subcommittee by Mr. John F. Banzhaf III, the inequalities of systems other than direct election are very great. Under the present electoral college systems there are 16 States with a total population of 121,823,804 in 1960 whose citizens have greater voting power than do the citizens of my own State of Missouri.

Under the proposed district plan there would be 39 States with 82,156,780 people with greater voting power than Missourians.

Under the proportional system which has also been proposed, 41 States with a total population of 93,165,122 would have greater voting power than the people of Missouri.

These figures are for Missouri. But the three plans have equally drastic effects on citizens in all States. The only fair and equal method is direct election.

Second. Direct election will be giving the vote back to many who have been disfranchised. Due to the winner-take-all result of the electoral college, those who voted for the candidate who lost in each state have completely lost their vote for President and Vice President. Under direct election all votes will count.

Because this will be true, I believe direct election would do much to improve election campaigns. There would be more active participation by the citizens in our elections. The present unit or winnertake-all system of the electoral college is an anachronism, a relic of the horse and buggy days, in a time when rapid travel and communication are so easy. It causes campaign firepower to be first concentrated on the big States, the ones with the most electoral votes, the only ones which really matter. The so-called safe or lost States, depending on the State and party, are practically ignored.

All the people of this country should be able to feel a part of the great national campaign for the Presidency. Our advances in travel and communication have made it possible to modernize our methods of election. The reform I am supporting should have been made 100 years ago.

By doing away with the electoral college we can help the further development of a stronger two-party system in one-party States.