CONGRESSIONAL RECORD -- SENATE

February 25, 1969

Page 4418

REFORMING THE PRESIDENTIAL ELECTORAL SYSTEM

Mr. BAYH. Mr. President, there is widespread interest today in the subject of reforming the present method of electing the President and Vice President of the United States. The close results of the 1968 election, coupled with an unusual amount of publicity during the campaign and immediately thereafter on the fact that the will of the people could be thwarted through procedures which are now authorized by the Constitution, has aroused an unusual amount of public concern about the problem of how best this system could be improved.

Many public figures, newspaper columnists, editorialists, and other citizens have made worthwhile comments on the need for and prospects of change in the operation of the electoral college. Because of the national significance and timeliness of their message, I ask unanimous consent that the following items be printed in full in the RECORD at the conclusion of my remarks: An address to the Machinists Non-Partisan Political League by Hon. EDMUND S. MUSKIE, Senator from Maine, published in the Machinist for February 13, 1969; an article by Jerald F. terHorst entitled, "Do We Need an Electoral College?" published in the Autumn 1968, issue of Panhandle magazine; an article entitled "Electoral College is Dangerous, Undemocratic," printed in the IUE News for February 6, 1969; and a column written by David S. Broder on the "Faithless Elector," published in the Washington Post of January 28, 1969.

There being no objection, the items were ordered to be printed in the RECORD, as follows:

[From the Machinist, Feb. 13,1969]

U.S. ELECTION PROCEDURES: OUTMODED, HAPHAZARD, UNDEMOCRATIC

(Note -- U.S. Senator EDMUND S. MUSKIE of Maine, Democratic nominee for Vice President in last year's election, addressed the recent meeting of the Machinists Non-Partisan Political League at the Machinists Building in Washington, D.C. Here is an important excerpt.)

(By EDMUND S. MUSKIE, U. S. Senator from Maine)

I think it's clear that the American people consider that in many respects we have an outmoded, undemocratic, and haphazard election process. Especially with respect to the election of the President of the United States. I can't help but wonder, with all this ferment against the process, all this cry about the need for reform, whether or not we are likely to achieve the kind of reform we ought to have.

Earlier this month you may have noticed that Congressman Jim O'Hara of Michigan and I undertook to challenge the vote of a North Carolina elector by the name of Dr. Lloyd Bailey.

The fact that he was elected on the Republican ticket or the fact that he was chairman of a chapter of the John Birch Society, or the fact that he voted for George Wallace is immaterial.

The Congress refused to challenge the vote cast by Dr. Bailey. Bear in mind the facts: he was an elector on a Republican party slate, nominated by his district convention, endorsed by his party State convention to be a Presidential elector on the Nixon slate.

In North Carolina, as in 34 other states, the names of the electors do not appear on the ballot. Only the name of the slate's Presidential candidate appears on the ballot. So the electors are chosen only if their candidate for President receives the approval of the electorate of the state.

In North Carolina, Mr. Nixon received the plurality vote of the state and Dr. Bailey was elected an elector as a direct consequence. And yet on Electoral College day in December he declined to vote for Mr. Nixon and cast his vote for Mr. Wallace because in his personal individual judgment Mr. Wallace on that day was the better candidate.

We have the statute under which the Congress has the authority to refuse to count such a vote, and the Congress refused to exercise that authority.

What Congress has done by that action, is to liberate Presidential electors to the degree that they have never been free and independent for over 130 years. Between the years 1820 and 1948 electors always assumed that if they ran for office as a Presidential elector on a party slate, they were bound to honor their party's candidate for President.

PRECEDENT SHATTERED

In 1948, for the first time since 1820, an elector chose to ignore that mandate. Again in 1956 this happened. In 1960 it happened, and then in this election campaign you will recall all of the speculation of what was to happen if no candidate received a majority in the electoral college.

It was common knowledge that Governor Wallace had pledged his electors to cast their votes in whatever way they chose. It was his view and his objective to decide the election, not in the House of Representatives, where the Constitution provides that it shall be decided, failing a majority for any candidate in the electoral college. Wallace wanted to decide it in the Electoral College where he could exert maximum pressure and put together a maximum compromise and a maximum bargain along lines he would dictate.

Well, now, the Congress has liberated the Presidential elector. In future elections, as a result of that decision, electors are free on Electoral College day, to vote for the candidate of their personal choice whether or not they were elected on a party slate, whether or not their names are on the ballot which goes to the voters.

This is the situation in which we find ourselves today. And the interesting thing is that there are members of Congress who have said in the course of debate against Dr. Bailey, and since, that maybe it isn't too bad an idea to leave this discretion in the hands of the electors rather than in the hands of the Congress.

So the whole thing is loose, the whole thing has come apart. It was said up on the Hill, it was said in the Senate, we don't really need to be worried about this because it is inevitable that we'll have reform of the Electoral College in this Congress. Well, is it inevitable? And if it comes, what form will it take? And if the reform that's proposed the Congress is inequitable or inappropriateor if it runs counter to the wishes of the people, what will we do about t?

SEVEN YEARS MINIMUM

If we should adopt a Constitutional amendment dealing with electoral reform, that amendment will be alive for seven years so that the states can act on it. Suppose that it takes seven years before the states either finally approve or disapprove such an amendment.

Once we have put an amendment in motion, we are not really in a position to consider another one, or a better one, for seven years. And if such an amendment is rejected, so that we must consider another one, that will take another six or seven years before that one is finally adopted. So it is conceivable that as much as twelve years would pass before we finally resolve this problem.

Twelve years means three more Presidential elections, three more Presidential elections subject to the risk of faithless electors; three more Presidential elections subject to the danger of manipulation in the Electoral College; three more elections subject to the risk that the will of the people will be frustrated.

It's incumbent upon us then to consider electoral reform as an urgent piece of public business and secondly, we should consider it as so important at this time that we put together the best possible kind of reform.

In my judgment there is one kind of reform that meets the test. The test ought to be this:

That we eliminate the possibility of free choice in the hands of electors;

That in any election campaign the appeal ought to be not to states, but to voters;

That every voter's vote is to be of equal value and of equal importance wherever it is cast.

Now there is only one reform that meets all three of those tests. And that is the direct popular election of the President of the United States.

There are those who say, well, we ought to preserve the electoral vote even though we don't preserve the Presidential electors in order to preserve the integrity of the state. To that, may I say that the election of the President is the election of the President of all the states of the country and not the President of any particular state.

As a matter of fact, under the present system, the small states have less influence than they would have under a direct election system.

Under the present system the Presidential electors in the larger states have more influence upon the choice of the President than the electors of the small states. The balance,between large and small states seems important to you. The important thing is that under the present system, where the winner takes all in every state, those who voted for the minority candidate in a particular state are disenfranchised in the election of the President of the United States.

PROBLEM OF DIRECT ELECTION

There is only one problem with respect to the national election of a President by direct popular vote that ought to concern us, and that is the question of uniformity of election procedures, uniformity of requirements establishing eligibility to vote, because obviously these could be manipulated by states undertaking to increase their influence upon the national results.

In addition there is the problem of the close election. The method of resolving a close election is a test of any election process whether it's under the present system involving the Electoral College or under a direct popular vote system. It is the close election which raises public doubts as to whether the final result will be their choice or the choice of a few men manipulating the process for their own benefit.

It is easy to accept the result of any election when one candidate has a clear majority. It is less easy to preserve the result in a close election.

But if we have the direct election of the president by the people and we have a close election, one that is decided by a few hundred thousand votes as in 1968:

How do we decide which ballots have been cast properly and which ballots have been cast improperly?

How do we decide who is eligible to challenge and who will supervise the challenging procedure?

When we deal with this subject, we are dealing with a subject that has been the traditional responsibility of the states. When we are dealing with the election of a President, it seems to me that we ought to make sure that at the same time we establish a direct popular vote system, that we also have in mind the method for dealing with the close election. Otherwise, we might find ourselves right back where we are with a close election and the danger of manipulation by the people who ought not to have that power.

(From the Panhandle magazine, autumn, 1968, published by Panhandle Eastern Pipeline Co.]

Do WE NEED AN ELECTORAL COLLEGE?

(By Jerald F. terHorst) 1

Jerald F. terHorst, chief of the Washington bureau of the Detroit News, is considered to be one of the most knowledgeable reporters in the Capital on national politics and economics. Many of his stories are syndicated to other newspapers by the North American Newspaper Alliance. A graduate of Michigan State University, terHorst started his newspaper career on the Grand Rapids (Mich.) Press and has been on the Washington scene as a newspaper correspondent since 1957.

"So you see the Judas of the West has closed the contract and will receive the thirty pieces of silver. His end will be the same. Was there ever witnessed such a barefaced corruption in any country before?"

Those angry words were penned by Andrew Jackson, the popular winner of the 1824 Presidential election, following a Congressional deal that awarded the Presidency to John Quincy Adams, who finished second. The special object of Jackson's scorn was House Speaker Henry Clay, a formidable and powerful leader. The election of 1824 had failed to produce an Electoral College majority for any candidate. As provided in the Constitution, the choice had been tossed to the House of Representatives. Clay, using his influence, rounded up sufficient votes in the House to deny Jackson the Presidency and give it instead to Adams. In turn, Adams rewarded Clay by making him Secretary of State.

THE PRESIDENCY IS THE LAST MAJOR OFFICE IN THE LAND ON WHICH THE VOTERS DO NOT HAVE A DIRECT VOICE

A deal like that today, with its brazen nose-thumbing of the nation's voters, would touch off a popular outcry unmatched in American history. All recent protest marches would look pallid by comparison. Such a deal would seem to be unthinkable. It's been 144 years and 35 elections since the House has had to choose a President of the U.S. But statistics breed a false sense of security.

We have had six narrow escapes since then, including the 1960 Kennedy-Nixon contest. And this Year of 1968 could be another close brush with fate.

The nation's voters just could wake up the morning after the election to learn that it had all been for naught, that they had not chosen a new President; and that the choice of the next President would be made by Congressmen from 26 States.

The reason the 1968 Presidential election is so vulnerable is due both to the weakness of our system for electing Presidents and the special circumstances of this year's campaign. The weakness is that while American voters may think their ballots will elect the next occupant of the White House, the choice is actually made for them by the delegates to the Electoral College from each of the states and the District of Columbia, who are legally able to vote as they please.

The special circumstances of 1968 are that an extremely close race is in prospect between Republican Richard Nixon and Democrat Hubert Humphrey, the two major candidates, plus a kicker: a strong third-party challenge by Alabama's ex-Governor George Wallace, who apparently is basing his strategy on a plan to prevent either Nixon or Humphrey from getting a required majority of those Electoral votes. That would give him a chance to bargain with one or the other in the Electoral College or, failing that, force the election into the House of Representatives where another compromise could be attempted.

The Electoral College system is such a Rube Goldberg contraption that one wonders how it has managed to survive to the present day. At best, it means that no matter how the people vote, their decision must be ratified, as it were, by another body of government. At worst, it permits the will of the people to be tinkered with, warped or even rejected.

Of all the great and noble principles of government expressed in the U.S. Constitution, the provision for an Electoral College is not among them. It is, really, a political expedient that was adopted by the delegates to the Constitutional Convention of 1787 in Philadelphia as a way out of a dilemma.

Having agreed to create the office of President, with potentially great powers even then, they could not agree on how he should be chosen. Some wanted Congress to choose him, but others objected that it would make him subservient to the Legislative Branch and also open the door for "intrigue, or cabal or faction." Some suggested a direct vote of the people, a forward-looking and almost radical idea at the time. But others said the citizens of the land were still too "uninformed" and would be "misled by a few designing men."

So the Constitutional Convention finally compromised on an intermediate elector plan. Each state would appoint, "in such manner as the legislature thereof may direct," a number of (Presidential) electors equal to the number of its Senators and Representatives in Congress. The key words in quotation solved the problem. The electors could be appointed directly by a state's legislature, they could be elected to serve in the Electoral College by a direct vote of the people, or a legislature could give a Governor the right to name a state's electors. The Electoral College came into being simply because the original states, jealous of their own sovereignty, could not agree on any other plan that was acceptable to all of them.

If there is no majority for a Presidential candidate in the Electoral College, then under the Constitution the choice goes to the House of Representatives. Each state would have but one vote: a majority of the states (26 out of 50) would be required to elect the President. If a state's Congressional delegation was split evenly between the two parties, it could lose its vote completely.

BITTER AND FRANTIC POLITICAL INFIGHTING BROUGHT BURR DANGEROUSLY CLOSE TO THE PRESIDENCY

On its first try in 1789, the Electoral College seemed to be a success. But the appearance was deceptive. One major early weakness was to toss the election of 1800 into the House of Representatives, the first election so decided, as Thomas Jefferson found Aaron Burr, his Vice Presidential running mate, in fact, his major contender for the Presidency.

The problem was the system of "double balloting." The Constitution directed each elector to cast two separate votes for President, but he could not differentiate and specify one for President and the other for Vice President. As the fledgling parties solidified on a more national basis in 1796, the first bizarre effect of this "double ballot" resulted in the election of a President from one party and a Vice President from the other. Ironically, a similar result would appeal to a section of the popular vote in this election of 1968.

When the Electoral votes of the election of 1800 were tallied, Thomas Jefferson stood face to face with Aaron Burr, each having received 73 votes. As the House of Representatives retired to its chambers to elect a President, bitter and frantic political infighting brought the inferior Burr dangerously close to the Presidency. This unhappy example spurred passage of the 12th Amendment in 1804, requiring the electors to vote separately for President and Vice President.

To see the potential for national chaos in this antiquated system, one needs only to review the jet-age, nationally-televised Presidential campaign of 1960 between John F. Kennedy and Richard M. Nixon.

The official records show that Kennedy won 303 votes in the Electoral College to 219 for Nixon and thereby became President. But a shift of only 4,491 popular votes in Missouri from Kennedy to Nixon, and a shift of 4,480 in Illinois, where voting fraud charges seemed plausible, would have denied both men a majority in the Electoral College and would have tossed the outcome into the House of Representatives.

The tradition, of course, is that a state's electors will cast their votes in accord with the majority of the popular vote in that state. But they do not have to do so. Indeed, the 1960 "unpledged" electors from Alabama and Mississippi decided to go for neither man. They voted for noncandidate Harry Byrd Sr., the elderly Virginia conservative, as did one elector in Oklahoma.

Suppose the Kennedy-Nixon contest had been thrown into the House of Representatives. The odds would seem to favor Kennedy. But as the New York Times' Tom Wicker has observed: "The trouble with that assumption is that the House would have voted under an archaic provision giving each state delegation one vote, regardless of the size of the delegation, with a simple majority of 26 votes required for election. But at the time a Nixon-Kennedy decision would have been made, there were 23 delegations controlled by Democrats from northern and border states, six by Democrats from the Deep South, 17 by Republicans, and four split evenly between the parties. Obviously the Democratic but anti-Kennedy Deep South states and the four split states would have held the balance of power and it is impossible to say what would have happened after the bargaining, logrolling and vote buying had been completed . . .

"What would have happened had the whole mess been left to the House is too ghastly to think about."

That it didn't happen then, or in the previous close shaves of 1948, 1892, 1860, 1856 and 1836, has to be attributed to Providence which, as the saying goes, looks after fools, drunkards and the United States!

In each of those Presidential elections, a shift of less than one per cent of the popular vote would have robbed the Electoral College winner of his majority and would have sent the decision into the House of Representatives.

In the Kennedy-Nixon race, the shift would have had to be less than two hundredths of one per cent.

In the 1948 contest between Harry Truman and Thomas Dewey, Dixiecrat Strom Thurmond would have been in the driver's seat had a few popular votes shifted. If 23,000 voters in Ohio and California had gone for Dewey instead of Truman -- less than three hundredths of one per cent of the total vote -- Truman would have lost his Electoral College majority. The outcome would have gone into the House.

Thurmond had only 39 Electoral votes that year, and less than 2 per cent of the popular vote, but he could have bargained with either of the two major candidates before the Electoral vote was counted and, had he made a deal, he would have been able to provide an Electoral majority for either Truman or Dewey. Had the Electoral College failed, Thurmond could have bargained as leader of the Southern states in the House.

Is this what George Wallace has in mind for 1968?

There's no question that Wallace's third party candidacy will have an impact on the Democratic and Republican races for the White House. The latest Gallup polls give him 19 per cent of the popular vote, possibly enough to deny either Humphrey or Nixon a majority of Electoral College votes.

Wallace, of course, hopes that he can win he Presidency outright. As he points out, if he can get more popular votes in any state than his rivals -- 34 per cent or better -- he will, by tradition, be entitled to that state's full quota of Electoral votes. The more likely Wallace role, however, is that of the spoiler. His options are varied, but they all hinge on pressing for policy concessions from either Humphrey or Nixon if his own Electoral vote is large enough to deny them a majority of Electoral votes.

The historical odds, of course, are against Wallace. To beat the odds, he would have to carry five or more states (possibly Alabama, Georgia, Mississippi, Louisiana, South Caroina) at the same time that the other two candidates finish within 2 per cent of each other in the popular vote across the nation. The finding is based on a computer analysis by Dr. Charles Bischoff of Yale University. Unless he does better than the Bischoff minimum, Wallace will be out of the running on the day after the November election.

There have been suggestions that the two major parties take a pre-election pledge against bargaining with Wallace. The most nteresting proposal, by Professor Gary Orfield of the University of Virginia, would equire a promise by Democratic and Republican Congressmen that they would give the presidency to whichever candidate received the highest popular vote in event neither has an Electoral majority.

Despite kind words by some officials of both parties, however, the pledge is not likely to be made. The reason is that a no-deal pledge in itself smacks of a deal. Wallace, for one, quickly labeled it as such.

But the basic point, the real question, is not whether Wallace can beat the system but why we still have it.

What's needed is the abolition of the Electoral College system through a Constitutional Amendment that would provide for he direct election of a President by the votes of the people.

If this sounds bold, it's only because the presidency is the last major office in the land on which the voters do not have a direct voice.

The government of the United States, supposedly, is derived from the consent of the governed.

Yet the procedure for picking a president has made it possible for a majority of the voters to be thwarted and, indeed, it has actually happened.

There have been literally hundreds of proposals for changing, modifying, or abolishing the Electoral College system, some plans dating back as far as 1800. American presidents from Madison to Jefferson to Lyndon Johnson have been trying to devise something better.

The best plan, however, is at once the simplest; a direct vote by the people.

THE ELECTORAL COLLEGE SYSTEM IS SUCH A RUBE GOLDBERG CONTRAPTION THAT ONE WONDERS HOW 1T HAS MANAGED TO SURVIVE

Of course, there is the problem of what happens if there are more than two candidates for the White House and no one has a majority.

The American Bar Association, which has conducted an exhaustive study of the Electoral problem, suggests that any candidate with 40 per cent of the national vote be declared the winner.

If no candidate has 40 per cent, the ABA proposes a national runoff between the top two candidates. Senator Birch Bayh, of Indiana, and 19 other Senators have co-sponsored a Constitutional Amendment providing for this but it has not cleared Congress. Actually, a runoff would rarely be necessary unless there were many splinter party candidates. The 40 per cent figure would tend to discourage that. Additionally, a study of 170 governorship contests in 30 states over a 12-year period shows that the winning candidate polled more than 40 percent of the vote in all cases and more than 45 per cent in all but two.

A solution like this is certainly more in the American tradition than the involved and potentially devious Electoral College-House of Representatives System now required to pick a President.

There have been too many elections in which the nation has come dangerously close to handing the world's most powerful office to a man who was not the first choice of his people.

To quote Neal R. Peirce, the respected political editor of Congressional Quarterly and author of the book, "The People's President":

"No one has been able to show how the preservation of a quaint 18th Century voting device, the Electoral College, with all its anomalies and potential 'wild cards,' can serve to protect the Republic. The choice of the Chief Executive must be the people's, and it should rest with none other than them."

The American people have been right more often than wrong. Why continue to play games with their votes?

[From the IUE News, Feb. 6, 1969]

ELECTORAL COLLEGE IS DANGEROUS, UNDEMOCRATIC -- OUTMODED WINNER-TAKE-ALL SYSTEM ONCE AGAIN UNDER FIRE IN CONGRESS

“We propose that the Electoral College be abolished and the President and Vice President be chosen by direct, popular election." This statement, submitted by the AFL-CIO to the platform committees of the 1968 Democratic and Republican National Conventions, is forthright and clear. It addresses itself directly to one of the most serious political needs of the country -- the need for electoral reform.

The present system is as old, in almost all its parts, as the Constitution itself. Under it, the citizen casts his ballot not for the presidential candidate of his choice, but for one of two or more slates of electors, each publicly committed to a particular party ticket.

Whichever slate of electors receives the most votes in each state may cast all of that state's electoral votes for the candidate it represents when the Electoral College convenes. If no candidate receives a majority in the Electoral College, the election is decided by Congress, with the House of Representatives choosing the President and the Senate choosing the Vice President.

The system was built into the Constitution largely as a result of two fears.

One was a fear of democracy. Real democracy was something new and almost untried, a revolutionary idea, when the Constitutional Convention met in 1787.

Conservatives such as Alexander Hamilton hoped that the Electoral College would serve as a buffer against democracy by placing the selection of the President in the hands of a small group of prominent citizens (the electors), who would exercise their own judgment, not the people, in making a choice.

The other was the fear among the small states that, in the new and tighter federal system, they would be at the mercy of the more populous states. As the price of their ratifying the Constitution, they insisted on various safeguards, including the provision that the Electoral College be weighted their favor by making the number electors in each state equal to the states representation in the House, plus two extra for the state's two senators.

Both fears might have been understandable, if not excusable, in 18th-century America. But they, and the whole Electoral College system, are completely out of date in the 20th century.

CRITICISMS

Constitutional experts have pointed out any number of defects in the system. Here are just a few:

Although Hamilton's idea of a small body of independent electors hasn't worked out as he hoped, since electors usually vote their constituents' wishes, the system is still undemocratic. It insults the voter with the implication that he is unfit to choose his President directly.

On several occasions in American history, it has resulted in the election of minority Presidents.

In 1876 and 1888, respectively, Democrats Samuel J. Tilden and Grover Cleveland each polled more popular votes, but won fewer electoral votes, than their Republican opponents. The Republicans went to the White House.

It weights votes unequally. On the one hand, small states have the advantage of two additional electors. On the other, there's the argument that the voters responsible for the winning margins in a few crucial large states actually hold the balance of power. Whatever the case, it's a long way from "one man one vote."

Then, by its winner-take-all character, the system wipes out all votes for unsuccessful candidates in each state.

For example, in 1968, 1,237,000 New Jersey voters cast their ballots for Hubert Humphrey. But since Nixon carried the state by 50,000 votes, all Jersey electors were Republicans. As far as they were concerned, the Democratic voters might just as well have stayed home.

Another difficulty is that there is no assurance that electors will vote as they've promised. In the last election, one North Carolinian pledged to Nixon defied the will of his constituents and cast his ballot for George Wallace.

THE LESSON OF 1968

In a very close electoral count, this kind of arrogance could change the course of history.

The 1968 campaign furnishes an example of the dangers inherent in the system. George Wallace's American Independent Party managed to get on the ballot in all 50 states. During the campaign, there was speculation that Wallace might carry enough states to deny an Electoral College victory to either of the two major party candidates.

This didn't happen. But suppose it had? Wallace's strategy would have been to seek to make a "covenant," or bargain, with one of the other Presidential candidates. The deal -- Wallace's electoral votes in exchange for a promise not to enforce civil rights laws, or for a Wallace veto over administrative and judicial appointments, or for whatever else the former Alabama governor might have dreamed up.

If no deal had been made, there would have been no Electoral College majority, and the election would have been thrown into the House.

There, each state's delegation would have voted as a unit for one of the candidates. (That is, a state with 10 Congressmen, six Republicans and four Democrats, would have cast one vote for Nixon). The candidate who received the votes of the most state delegations (not necessarily of the most Congressmen) would have won.

I t would have been possible, too, for the House to have deadlocked, by failing to give any candidate the nods of 26 of the 50 delegations. And it might have taken weeks, or even months, to resolve the deadlock -- possibly through the Senate choosing a Vice President who then would have become acting president.

It could have wound up that the nation had no duly elected President by Inauguration Day.

Considering the turbulence of the past year or so, it takes no great effort of the imagination to picture what might have happened then.

PROPOSALS FOR REFORM

Over the years, hundreds of proposals for changing the system have been introduced into Congress.

In the present Congress, Sen. Birch Bayh (D-Ind.) is holding hearings of the Constitutional Amendments Subcommittee on the merits of several alternative plans, one of which he himself has introduced.

The proportional plan, introduced by Sen. Sam Ervin (D-N.C.), would divide the electoral vote of each state among the various candidates in proportion to their shares of the popular vote. The candidate receiving the greatest number of electoral votes (above 40 percent) would be elected.

This would eliminate one of the worst features of the present system, the "winner-take-all" feature. But it would still give undue weight to smaller states, since it would make no change in the distribution of electoral votes among the states. And it would still, in cases where no candidate receives 40 percent, allow Congress to choose the President.

The District plan, advanced by Sen. Karl Mundt (R-S.D.), would provide that electors in each state be chosen individually, in single-member districts, rather than as a group. It would also make it impossible for electors to vote against the wishes of their constituents. But it, too, is obviously no more than a half measure.

Sen. Bayh himself has proposed a constitutional amendment practically identical with the AFT-CIO position. His proposal would junk the whole, obsolete Electoral Collegeege system, and substitute a system of direct election by the people. In the event no candidate should receive 40 percent of the popular vote, a runoff election would be held between the two leading candidates. The Bayh proposal attacks the problem it its root. It would ensure that the man elected President would be the choice of the greatest number of voters.

But the outlook for its passage is uncertain. Any one of these proposed constitutional amendments must be approved by two-thirds majorities in both houses of Congress, then ratified by three-fourths of the state legislatures.

With several other plans competing for approval, Sen. Bayh is pessimistic about the prospects for getting the resolution through present Congress.

Even if he does, it will have a difficult time with the state legislatures, many of which can be expected to oppose it.

Still, something needs to be done, and soon. As Sen. Bayh has said, "People just aren't willing to patch the roof when it isn't training, and memories fade fast."

In other words, it won't be long before most people forget the fears, so prevalent during the 1968 campaign, that we would have a minority President, or a President who had got his office by making a corrupt bargain with George Wallace, or a period without any President at all.

If electoral reform is put off until the next Presidential election year, it might be too late. And what was only a frightening possibility in '68 might become a grim reality in '72.

[From the Washington Post, Jan. 28, 1969]

FAITHLESS ELECTOR PROVES NEED FOR ELECTORAL REFORM

(By David S. Broder)

The most intriguing aspect in the testimoney of Dr. Lloyd W. Bailey, the North Carolina Republican presidential elector who bolted to George Wallace, was his account of the process that made him one of the few Americans actually empowered to help choose the new President.

Sen. Birch Bayh (D-Ind.) invited the Rocky Mount ophthamalogist to appear before his Constitutional Amendments subcommittee last week in hopes the Bailey case would demonstrate the need for electoral reform.

The results were better than Bayh could have hoped. The good doctor proved to be a man so totally candid and so splendidly self-righteous that he showed the present system for what it is -- not just awkward but dangerously absurd. His story is a case study in the casual irresponsibility of the electoral college system.

Dr. Bailey explained that he went to the 2d District GOP convention last February, "knowing that I would be proposed for nomination to the position of presidential elector. I did not seek this position, but I did not decline it.... We were in the position of having to find people to fill every office in the party structure. No one else was proposed for presidential elector, so I was nominated.

"This was a number of months before we even knew who the presidential nominees would be." he noted. "There was no discussion of party loyalty, there was no pledge, and there was no commitment made to any candidate."

Personally, Dr. Bailey said, he was disappointed when the Republican convention nominated Richard Nixon, rather than Strom Thurmond or Ronald Reagan. Therefore, he felt no twinge of conscience last fall in supporting and voting for George Wallace.

North Carolina is one of those States that neither pledges presidential electors to support Party nominees nor bothers to list their names on the ballot. In a system of symmetrical irresponsibility, the electors are as unknown to the voters who elect them as they are free of obligation to heed their wishes.

"As an example of how lightly the position of Republican elector was taken," Dr. Bailey told the subcommittee, "I had even forgotten that I was the elector until I was reminded of it by Dr. Stroud, the 2d District Republican chairman, shortly before the general election."

Those who wish may scoff, but Dr. Bailey is a busy man; it is a long time from February to November; and it is easy to see how that little extracurricular chore of choosing the President might have slipped his mind.

But the doctor is also a conscientious man, whose interest in public affairs had long since been evidenced by his membership in the John Birch Society. Once reminded of his duty as an elector, he began to pay close attention to Mr. Nixon's activities. His first instinct, he testified, was to give Mr. Nixon his electoral vote, even though the 2d District has supported his personal choice, Mr. Wallace.

But then Dr. Bailey noticed the Presidentelect had named a half-dozen staff members whom he recognized (from reading Dan Smoot's book, "Invisible Government,") as members of the Council on Foreign Relations, a sinister group whose goals, he told the subcommittee, "appear to be uncomfortably close to those of the international Communist criminal conspiracy." When Mr. Nixon asked that other Birch Society nemesis, Chief Justice Earl Warren, to remain in office and to administer the presidential oath, the "forgetful elector" was moved by conscience and love of country to become "the faithless elector." Rejecting the suggestion that he resign his post as "cowardice under fire," Dr. Bailey, on the appointed day in December, calmly and deliberately cast one of the 12 electoral votes Mr. Nixon had won in North Carolina for Wallace. He was only the fifth elector in the last 150 years to vote his conscience, rather than his party, but his constitutional right to do so was solemnly affirmed by both houses of Congress when the electoral vote was officially canvassed early in January.

By their decision, the lawmakers served notice -- in headline-size type -- that any elector, however chosen, was free under our present system to do exactly what Dr. Bailey had done. The doctor himself told the subcommittee he hopes his example will be widely imitated.

The mass of voters, he said, have been so victimized by the distortions of the news media that it would be preferable to have the President chosen by "informed men" like himself, who (with the help of Dan Smoot and Robert Welch) "take the time to go into things."