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 10 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.

Under direct election, the national candidate who has a minority in State still receives all the votes cast for him by the citizens of that State. This would be a definite incentive for this candidate and his party to work hard in each State. Just as certainly, direct election vill cause the majority party to go out and work extra hard knowing hat the total number of votes is now decisive.

Democracy is not served when a citizen's vote is ignored because he voted for the minority in his State. Today, voting in the national election is a gamble. If we vote with the majority in our State, our vote is counted. If we vote for the minority candidate in our State, our vote is ignored. Direct election ends this defect.

Third. We have heard arguments that such things as bad weather can play a significant part in an election. I believe these special local conditions would play a smaller part if the votes were counted for the Nation as a whole rather than State by State. A storm in New York or California could have drastic results on an election under the present system. With a national system of counting all votes, the effects of any local conditions would be absorbed in the votes of all citizens in the Nation.

Fourth. Some opponents say direct elections would cause minor parties to flourish. Since this is a democracy, I see nothing particularly objectionable if this were the case. However, I do not believe it is. No splinter party could succeed under the 40-percent requirement of Senate Joint Resolution 2 except by working within the framework of the two major parties. To even cause a runoff-as provided for in Senate Joint Resolution 2-it would be necessary for the third party, or third parties, to gain over 20 percent of the vote. Even then a third party would not be in the runoff. It would just not be advantageous for a splinter party to operate unless it became part of the two-party system. Thus Senate Joint Resolution 2 would preserve the present two-party system which is stable, yet allows for individual divergent-interest groups to work through the major parties.

I believe this issue boils down to what is necessary for the people. The present system and all but one of the suggested alternatives do not give the voters equality. All systems except direct election allow for the possibility of a President being elected who received fewer votes than did his opponent. This, in fact, has occurred three times in our history, in 1824, 1876, and 1888. This is critical. If the majority of Americans vote for one candidate, then that candidate should be the winner. We must get rid of the electoral college system which says a majority candidate can lose the election.

In a time like the present, when crisis follows crisis, and the President is called upon to continually make major decisions, it is necessary that he have the support of the largest number of Americans. Under direct election, the man with the most votes has to win. This is not true under our present system.

I totally agree with Majority Leader Mansfield who says that the President should be elected by the people of this Nation, directly and equally because it is our national office.

The passage of the direct election amendment before this distinguished subcommittee is imperative if we are to attain the full privileges implied in the principle of "democracy for all citizens." Not until

there is direct election will the voters of this country be guaranteed that the man they vote for in the greatest numbers will be elected. Not until there is direct election will there truly be a government by the people.

I wish to commend you, Chairman Bayh, for the outstanding work you have done on this problem. Your deep concern for the citizen's rights is as profound with this issue as it is in your work as a member of the Senate Subcommittee on Administrative Practice and Proce dure. As chairman of that subcommittee, I have deeply appreciated your dedication to the constitutional right of privacy which should be guaranteed for every American. The right to freedom of speech, the right of privacy, the right to vote, and all other rights are fundamental in our democratic system. If we lose one of these rights, we will lose them all. You have worked and are continuing to work admirably to protect these rights. I fully support the amendment before this subcommittee and I hope your fine work will result in the passage of this measure.

Senator BAYH. Thank you very much, Senator Long.

I appreciate very much your coming before us. I think it is very appropriate that you would equate the rights which we are trying to guarantee in this particular effort with the fine work that you have done on the Administrative Practice and Procedure Subcommittee, in which you have been a spokesman for the basic right to privacy.

You point out that the original purposes of the present system no longer exist. In fact, Senator Burdick and others have pointed out that other, small and large States, seem to accept this principle equally well. Your pointing out the other five points, plus the basic principle of the democratic election, namely, that the man who has the most votes is going to win, is very helpful to us.

Could I ask one question on one practical aspect?

Senator LONG. Yes.

Senator BAYH. In Senate Joint Resolution 2, which both of us cosponsored, there is a contingency provision which provides that in the event no candidate gets 40 percent, there will be a runoff election. Is it conceivable to you that we might have some bargaining position here if we could use that procedure or the procedure which was suggested by the earlier measure, which you and I cosponsored also, which would provide for the contingency to be decided by a vote of both Houses of Congress, with each Member having one vote?

Senator LONG. I am inclined to believe, Mr. Chairman, that it would serve the purpose of democracy better to have a runoff if they do not get at least 40 percent. That is what we provide, rather than submitting it to the joint session of the Congress, which might be controlled by a party that might not be the one that received even the largest number of votes at that time in the general election.

Senator BAYH. It is conceivable that there could be a joining together arithmetically of the Senate and the House, with the carryover in the Senate, plus the fact that you do not always get a House controlled by the party that wins the Presidency.

Senator LONG. I do not see anything wrong in fact, I think it is entirely proper-that the citizen have the right to express his own vote directly. In fact, I think he will come closer to his Government if he receives the President that he has elected rather than have him elected by his elected Representatives.