March 4, 1969
Page 5231
REFORM OF ELECTORAL SYSTEM
Mr. MUSKIE. Mr. President, the Subcommittee on Constitutional Amendments of the Committee on the Judiciary is currently holding hearings on the reform of the electoral system. As a cosponsor of Senate Joint Resolution 1, the proposal offered by Senator BIRCH BAYH to substitute the direct election of the President for the electoral college system, I have felt that one of the most significant arguments in its favor is its recognition of the importance of the right to cast an effective vote. This right is now denied all those voters who do not cast their ballot for the candidate who carries their particular State.
However, the right to cast an effective vote – the right to equal representation – will not be completely insured by the substitution of the direct election of the President. For even in this case, those voters who cast their ballots for the losing candidate find themselves without representation in the executive branch of our Government.
The power of the executive branch has grown so much that the opposition representation in the Congress may not be a sufficient check.
Mr. David Fromkin, a New York City lawyer, has raised these questions and suggested a possible answer in a recent issue of Interplay magazine. His proposal for a formal structure of the opposition is worthy of study. I ask unanimous consent that the text of the article be printed in the RECORD.
There being no objection, the article was ordered to be printed in the RECORD, as follows:
LEADER OF THE OPPOSITION: AN AMERICAN LACUNA
(By David Fromkin)
"Only in America . . . ," the familiar phrase begins, but in this case it must read: only in America or, if you used a different set of numbers, in Gaullist France." For in no other western democracy could the candidate of 31,770,231 voters receive supreme power while the candidate of 31,270,533 voters receives no power at all. In theory, the elected President represents all of us. But in years like 1960 and 1968 he really represents less than half the electorate, and the other 30-plus million voters have no one to speak for them in the high places of government: their leader vanishes. For another four years, half the nation has no voice.
The British, in the course of a long constitutional development, have created a role for the leader of the defeated party, a position in which he, too, can contribute on a continuing basis to the thinking and leadership of his country and the shaping of its policies. We, on the other hand, have no use for such a leader. In the United States he raises funds to make up the campaign deficit; then, more often than not, we send him home.
Quite apart from its unfairness – that one man passes into the pages of history and the other out, by the margin of one-half of one percent – ours is a wasteful system. To the extent that our parties fulfill the obligation to nominate their best men for national office, we are wasting the judgment, talent, knowledge and experience that the candidates of the losing party can contribute to public life. Among my personal examples are Wendell Willkie and Adlai Stevenson; everyone will, of course, have his own.
The defeated candidate who decides to resist the tendency of the system – who decides that, even without another political position such as Senator or Governor, he will remain in public life – must support himself and his staff by private means. He goes to a private foundation. He administers a university. He heads a large corporation. He joins a law firm. Whichever alternative he chooses, he is retained by some private interest. His political program must take account of the needs and desires of his employers, clients or donors. His future political availability is limited by the "conflict of interest": was there a single freewheeling client of his law firm who was not dredged up against Richard Nixon in the campaign? The viciousness is in the system itself. We force the leader of the losing party to serve private interests when we should be requiring him to serve the public interest.
The chief defect of the way in which we treat the losing candidate, however, lies in its effect upon the victorious candidate. Ours is the only country in the Anglo-Saxon world whose Head of Government is not checked, balanced and limited by an adversary, a Leader of the Opposition, with whom he is locked in continuous public debate. One reason is that our Head of Government is also Head of State. As the symbol of the nation as a whole, he is to that extent lifted above the leader of the opposite party. This only makes matters worse, for it cloaks him in an immunity that he should not have. The important things the President does nowadays are the life-and-death things done as leader of party and government, the very areas in which he should face constant challenge. In comparison, ceremonial functions of the presidency matter relatively little, although their existence adds to the aura and influence of the office of the presidency and can be misused.
The excessive growth of executive power has been observed throughout the world and almost universally deplored. One need not go far as de Riencourt in The Coming Caesars to view with apprehension the growing accumulation of overwhelming power in the hands of one man. There is no one to question the President of the United States, except the newspapermen who do so at his pleasure. He does not submit to congressional inquiry. He may subtly commit us to foreign or domestic conflicts, without our being aware until they and their consequences are upon us. He dominates the media of communication. When he chooses to argue his case to the people, there is no one to argue the case against him: no one equally known, with equal access to communications facilities, with equal prestige, whose job and interest it is to clarify the choices before us, uncover the commitments in process of being made, expose the shortcomings of the President's program, and propose better alternatives.
A GAP IN THE SYSTEM
In the American system of government, there is a gaping hole where there ought to be a Leader of the Opposition.
The congressional leadership of the opposition party cannot fill the need; indeed, it misleads the electorate if it attempts to do so, because the alternative to the President was and will be the nominee of the party in Convention, which often has a different viewpoint from the party in Congress. Moreover, few congressional leaders have the motive or desire to challenge the President, or the national prestige to do so. Nor have they the appropriate status: the adversary of the Minority Leader of the Senate is the Majority Leader of the Senate, not the President. Most important, the congressional leadership does not dominate the news media, as the President does, and cannot argue the case against him to the people. The congressional leadership can neither question nor debate with the President.
On an ad hoc basis, as titular head of the Democratic party, Hubert Humphrey apparently hopes to supply some of the needed opposition leadership in the four years to come. As his friend and his countryman, I wish him well. But he cannot supply for himself what the law of the land withholds from him: public recognition, public funds, and a public role. Above all, he cannot compel the President (as the British system compels the Prime Minister) to answer his questions in open debate.
Three steps are necessary in order to fill the gap.
The first necessity is legislation defining the position of Leader of the Opposition (perhaps: "that losing candidate for the Presidency who receives the highest number of popular votes"), providing for his replacement upon death or disability, and establishing appropriate pay and allowances.
Analogous British legislation was enacted 32 years ago. As a Member of Parliament, the Opposition's Leader already received a parliamentary salary. In 1937, the position of Leader of the Opposition was constitutionally recognized for the first time and, for the first time, the Leader of the Opposition was given a salary as such. ("He had supported the constitution in 1936. In return the constitution formally recognized him." A. J. P. Taylor in English History 1914-1945)
The salary might perhaps be equivalent to the salary of a US Senator. In addition, there would be the expenses of a staff, for without one no political figure can play a major public role. A minimum effective political staff is comprised of: an administrative assistant; a press secretary; a researcher and a speech writer; and a chief advance man. Also, there would be office rental, secretarial and other clerical expenses.
The second necessity is a forum. Today this means, in effect, frequent access to prime television time. Appropriate legislation should provide for this.
The third and final necessity is an opportunity to publicly question and debate with the President on a regular basis. It is no objection to say we do not have a parliamentary framework for such debate, as do the British. Even in Britain the effective confrontation now occurs on television. The position of the Leader of the Opposition, which developed as a function of the parliamentary system, has transcended that system in this respect.
Therefore legislation enabling – and eventually, a constitutional amendment requiring – a mutual questioning and debate between President and Leader of the Opposition, on television, would round out the new public position of Leader of the Opposition. (Lest this be misunderstood as an anti-Nixon proposal, the amendment would be effective commencing with the next President, not with him.) Perhaps once a year, in early January, the two leaders would question and debate with one another before the assembled nation, clarifying in all due solemnity the state of the nation and the choices before us.
Clearly there are aspects of the British system that we cannot copy. Our Leader of the Opposition is not always, nor necessarily ever, the alternative Head of Government. He need not be, in order to fulfill his most significant function. In Britain there is a dialogue at the pinnacle of power. In America there is only a monologue; this is what should and can be changed. This would enable us to form wiser judgments on public matters, and to bring into play the full range of our private and public institutions (most especially, the Congress) to influence executive decisions conformable to the will and desire of the people as a whole.
The means of accomplishing this would be the means we have used, and used successfully, before. For instance, our solution to the many problems of the securities markets was called the "Truth-in-Securities" Bill, requiring full public disclosure of all pertinent data concerning securities issues, as well as extensive exposition and clarification of the risks inherent in investing in them. Similarly the proposals above might be termed the "Truth-in-Politics" Bill, the idea being to more fully inform the public of the nature and risks of political decisions that are (or are not) being made.
The mechanism is the basic one of Anglo-American jurisprudence: the adversary system. Centuries of experience have taught us that the best way to uncover the truth is to empower a man with a strong personal motive – and adversary – to cross-examine, by right of law. That is why the British have found some counterpoise to an overly-powerful chief executive in an adversary leader, entitled to question him, equally equipped to appeal to the mass of the people, able to uncover the truth where hidden, and with an interest in doing so.
PHILOSOPHICAL FOUNDATIONS
Indeed, the philosophy from which this proposal springs – the proposal to establish a Leader of the opposition – is the philosophy of the authors of the Constitution of the United States, which in turn derived from the British constitution as interpreted by Montesquieu (The Federalist, No. 47). The authors of the Constitution regarded the accumulation of all powers in one set of hands as tyranny (Ibid.), which we in the United States would prevent ". . . by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places" (The Federalist, No. 51). Following Montesquieu, who wrote that ". . . power should be a check to power (The Spirit of Laws, Book 11, Chapter 6), they believed that "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place" (The Federalist, No. 51).
Why, then, did they fail to create a constitutional place for one whose interests counterbalanced those of the head of the executive department? They created checks and balances everywhere else, playing off the states against the federal government, the branches (executive, legislative and judicial) against one another, and, within the legislative branch, House against Senate. Of course, they knew that in the ancient world a double (which is to say, divided) executive had frequently been tried and found wanting, and that Montesquieu had written that “Two kings were tolerable nowhere but at Sparta" (The Spirit of Laws, Book II, Chapter 6), but there were balancing mechanisms and methods that could have been employed other than direct division of the executive power.
The answer is that they believed that power threatened to accumulate only in the legislative, not the executive, branch. They believed that ". . . the tendency of republican governments is to an aggrandizement of the legislative at the expense of other departments" (The Federalist, No. 49). Their solution was to divide the legislative into rival bodies, House and Senate (The Federalist, No. 51). Indeed – and it is amusing to read this after all that has in fact happened – so acute an observer as Tocqueville felt that “The Americans have not been able to counteract the tendency which legislative assemblies have to get possession of the government" (Democracy to America, Volume I, Chapter 8).
Had it struck the authors of the Constitution that the executive might come to dominate the government, they would surely have established a counter-executive. Indeed, they very nearly did so anyway. As originally adopted, the Constitution provided that the candidate receiving the second largest number of electoral votes for the office of President (in 1968, for example, Hubert Humphrey) would become Vice President. This would have given the President's chief political rival and adversary the second position in the executive branch of the government. The Constitution was in this respect frustrated by the unforeseen organization of political parties, and was amended.
In the light of history and the unexpected growth of executive power, adoption of the proposal to establish a Leader of the Opposition would complete and perfect our constitutional system of government as originally contemplated by its authors.
It would place the President and his policies in perspective.
It would more fully inform the Congress of the President's plans and procedures, enabling it to better perform its constitutional function as a balance to the executive department.
It would more fully inform all of us as citizens and enable us to make our views known at the time decisions are actually being made, rather than later, when it is too late to change them.
It would enable us to better judge and evaluate the Leader of the Opposition and decide whether he deserved a second nomination, for he would have to come out in the open and would have to formulate constructive alternatives. He would tell us at each stage what he would do as President. His role could not be simply a negative one, nor could he wait for four years to then mouth a policy based on hindsight.
It would lead to a more responsible congressional opposition, because the congressional leaders of his party would inevitably be influenced by the Opposition Leader in this respect.
Best of all, it would convert the electoral process into what Adlai Stevenson, following Jefferson, hoped it would become: an educational process. Hopefully, through it, we would become better citizens and make wiser decisions. Continuous dialogue, continuous clarification, continuous information and exchange of ideas would bring us closer to realizing the goals of those who wrote our Constitution.
The time has come to fill the Constitutional void with a Leader of the Opposition.