January 6, 1969
Page 210
COUNTING OF THE ELECTORAL VOTES
At 1 o'clock and 39 minutes p.m., the Senate reassembled, when called to order by the President pro tempore.
The PRESIDENT pro tempore. As Senators are aware, we have just been meeting in joint session with the House to count the electoral votes to determine the election of the President and Vice President of the United States. When the name of the State of North Carolina was read, objection was filed, pursuant to law, to the validity of the certificate with respect to that State.
The clerk will read the formal objection.
The assistant legislative clerk read the objection, as follows:
We object to the votes from the State of North Carolina for George C. Wallace for President and for Curtis E. LeMay for Vice President on the ground that they were not regularly given in that the plurality of votes of the people of North Carolina were cast for Richard M. Nixon for President and for Spiro T. Agnew for Vice President and the State thereby appointed 13 electors to vote for Richard M. Nixon for President and for Spiro T. Agnew for Vice President and appointed no electors to vote for any other persons. Therefore, no electoral vote of North Carolina should be counted for George C. Wallace for President or for Curtis E. LeMay for Vice President.
(Signed)
EDMUND S. MUSKIE, JAMES G. O'HARA.
The PRESIDENT pro tempore. The procedure in such cases is spelled out very fully in a brief section of the Code of the United States. Of course, this is the first time that such objection has been filed, and we are sailing in uncharted seas, parliamentarily speaking.
The clerk will proceed to read the section of the code which is applicable. The assistant legislative clerk read as follows:
When the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senator and Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate.
Mr. DIRKSEN. Mr. President, a parliamentary inquiry.
The PRESIDENT pro tempore. The Senator will state it.
Mr. DIRKSEN. Actually, what is proposed here now is, under the Senate rules, by unanimous consent, to waive the applicable provisions of a statute; is that correct?
The PRESIDENT pro tempore. I do not know of any motion to waive a statute.
Mr. DIRKSEN. I understood that was the way we would have to proceed.
The PRESIDENT pro tempore. The Chair is not advised of any proposal to waive a statute.
Mr. DIRKSEN. But it will be offered. There is a limitation in the statute of 5 minutes upon each Senator.
The PRESIDENT pro tempore. If so, the Chair would sustain a point of order by the Senator from Illinois or any other Senator.
Mr. DIRKSEN. I prefer not to raise a point of order until the Senator from Maine makes his unanimous-consent request.
Mr. MUSKIE. Mr. President, I assume that the Senator from Illinois has reference to the unanimous-consent request, which has been discussed with several Senators, but is not binding on any Senator, of course, unless he so chooses.
In order to liberalize the rules of the debate for this 2-hour period, this unanimous-consent request is made: I ask unanimous consent that debate on objections to the electoral vote of North Carolina for George C. Wallace and Curtis LeMay shall be limited to 2 hours, as provided by law in section 17, title 3, United States Code, and that the time be equally divided and controlled by the majority leader and the minority leader.
The PRESIDENT pro tempore. Is there objection?
Mr. DIRKSEN. Mr. President, I am not going to object. I merely wish to note for the RECORD that what we are doing is waiving provisions in a statute by a unanimous-consent request under the Senate rules, in particularizing that the time shall be divided equally between the majority and the minority leaders, and they are to parcel out the time, unless an alternative proposal is offered under which they fix 5 minutes for each Senator, as provided by the statute.
The PRESIDENT pro tempore. As the Senator well knows, one objection strikes down a unanimous-consent request, and we will then revert to the language of the statute.
Mr. CURTIS. Mr. President, a parliamentary inquiry.
The PRESIDENT pro tempore. The Senator from Nebraska will state it.
Mr. CURTIS. Is a unanimous-consent request in order which, by its terms, is not in accord with a duly enacted statute?
The PRESIDENT pro tempore. The Chair will state that unanimous-consent requests can also be received and entertained here that are in conflict with the statutes. Sometimes they are in conflict with the Constitution.
We have three sets of rules in the Senate. Some of them are spelled out in the Constitution, others are spelled out in the Senate rule book, and the great majority of them are embraced in the precedents of the Senate.
For example, one of the constitutional rules had to do with ascertaining the presence of a quorum. We see suggestions of the absence of a quorum made several times during a day, and withdrawn by unanimous consent. That can be done only by unanimous consent. If the proposal of the Senator from Maine can be made only by unanimous consent, any single Senator who thinks it is improper, and that we should follow the statute in this particular case has a right to destroy it completely by uttering two words -- "I object," and the proposal will fall.
Mr. BROOKE. Mr. President, reserving the right to object, do I understand the only difference between the unanimous consent request and the statute to be that the time would be controlled by the Chair and not by the majority and minority leaders, under the statute?
Mr. MUSKIE. As the unanimous-consent request is worded, time would be under the control of the majority and minority leaders.
Mr. BROOKE. That is the only thing that was intended to be achieved by the unanimous-consent agreement?
Mr. MUSKIE. Plus liberalizing the 5-minute requirement. The statute requires that each Senator may speak for 5 minutes, and not more than once. This was discussed quite extensively, and it was felt that the ideal arrangement would be to have full and free debate, with the time controlled and free exchange between Senators. It was felt that this could be done, unless a Senator objected; so we decided to make the effort.
Mr. BROOKE. So under the unanimous-consent agreement, the 2-hour limitation would still be in effect, but one Senator may go beyond 5 minutes, and another Senator not get an opportunity to speak at all?
Mr. MUSKIE. That is correct.
Mr. BROOKE. I thank the Senator.
Mr. CURTIS. Mr. President, a further parliamentary inquiry.
The PRESIDENT pro tempore. The Senator will state it.
Mr. CURTIS. If there is an objection, which would prevail -- 5 minutes for each Senator or 2 hours?
The PRESIDENT pro tempore. Well, not more than 5 minutes for each Senator, totaling 2 hours, is the construction of the Chair of this statute. Thus if each speaker used 5 minutes not more than 24 Senators could be heard; because no Senator can speak more than once, and he cannot be heard for more than 5 minutes. So if we have more than 24 who desire to speak, I hope each Senator will bear in mind the limitation of the statute.
Mr. ERVIN. Mr. President, reserving the right to object -- and I shall not object -- I express the hope that no Senator will object to this unanimous-consent request. The Senator from Maine and I have met with the Parliamentarians and the President pro tempore of the Senate, and have tried to devise a method by which this matter could be handled within the 2-hour limit and give a full and free opportunity for discussion. I have considered this at great length, and the Senator from Maine has given considerable thought to it, and this unanimous-consent request, we think, will conform to what is the custom in the Senate, generally speaking, and will also keep us within the overall provision of the statute as to time limitation.
The PRESIDENT pro tempore. The Chair reminds the Senate that debate on this request is not in order, unless it is charged to the time limitation. Is there objection? The Chair hears none.
Mr. CHURCH. Mr. President, reserving the right to object -- and I do not object -- I would still like someone to explain to the satisfaction of the Senator from Idaho how a unanimous-consent agreement of the Senate can vitiate the provisions of a statute passed by both Houses of Congress and signed by the President.
The PRESIDENT pro tempore. The Senator has a right to vindicate the statute by saying, "I object," and the statute will be as virgin as ever; its provisions will not be affected in any way.
Mr. CHURCH. Mr. President, I have no desire to object, but I do not understand how this can be a proper proceeding.
The PRESIDENT pro tempore. The Chair is not permitted to enter any ruling that purports to pass upon the legality of a unanimous-consent request, any more than is any other Member of this body.
Is there objection?
Mr. BROOKE. Mr. President, it seems to me that the intent of the statute is to give as many Senators as possible an opportunity to be heard on this important issue. As I understand the distinguished Senator from Maine, under the unanimous-consent request, conceivably the distinguished Senator might use 1 hour of the time, and one Senator from the minority side use 1 hour of the time, which in my opinion would certainly frustrate the intent of the statute. I feel so strongly about it, Mr. President, that as much as I dislike to do so, I hereby object.
The PRESIDENT pro tempore. The Senator from Massachusetts objects. The Chair, having tolerated considerable discussion and parliamentary inquiries, now asks of the Senate unanimous consent that that time not be charged against the 2 hours. If there is no objection, it will not be charged; and that leaves the matter open for the Chair to recognize Senators who wish to speak on this subject.
The Chair recognizes the Senator from Maine for 5 minutes.
Mr. MUSKIE. Mr. President, I anticipated that this might result, and I fully understand the reservations expressed by Senators. I have another unanimous consent request to propose. I ask unanimous consent that debate be limited to 2 hours, as provided by statute, that the time be equally divided and controlled by the majority leader and the minority leader, and that the statutory limitation of 5 minutes per Senator be included, but that the 5 minutes available to any Senator may be used to ask or answer questions.
The purpose of this request, Mr. President, is to do two things: First, to insure that both sides of the debate shall have equal access to the attention of the Senate; second, that the use of the 5 minutes shall not be so rigid that there cannot be the kind of exchange that would permit the answering of questions on the minds of Senators. The Parliamentarian has advised me that, in his judgment, this is consistent with the statute. It touches upon points not covered by the statute, and it embraces the limitations of the statute.
The PRESIDENT pro tempore. Does the Senator wish the new request for unanimous consent to be read?
Mr. MUSKIE. Yes.
The PRESIDENT pro tempore. The clerk will read the new request, the time to be charged to the Senator from Maine.
The assistant legislative clerk read as follows:
UNANIMOUS-CONSENT AGREEMENT ordered, That debate on the possible objection to the Electoral vote of North Carolina for George C. Wallace shall be limited to 2 hours, to be equally divided between the proponents and the opponents of the objection, with each Senator limited to 5 minutes, as set forth in Title 3, sec. 17 of the U.S. Code.
Provided further, That the time allotted the proponents shall be under the direction of the majority leader (Mr. Mansfield) and the time allotted the opponents shall be under the direction of the minority leader (Mr. Dirksen), and notwithstanding the precedents and practices of the Senate, any Senator utilizing his time may either yield for a question or ask some other Senator a question for his own edification.
Mr. BAKER. Mr. President.
Mr. MUSKIE. Mr. President, this time is being charged to me. These 5 minutes, under the statute, are under the unanimous-consent agreement. If it is all used up, I shall have no opportunity to present my case.
The PRESIDENT pro tempore. The time is running against the Senator from Maine.
Mr. MUSKIE. I understand that it is.
The PRESIDENT pro tempore. The Chair will recognize any other Senator only by consent of the Senator from Maine.
Mr. BAKER. Mr. President, might I propound a parliamentary inquiry?
The PRESIDENT pro tempore. Only by the consent of the Senator from Maine.
Mr. BAKER. Does that mean that no time is allotted for propounding questions?
Mr. MUSKIE. Within the 5 minutes allotted to every Senator.
The PRESIDENT pro tempore. Is there objection to the unanimous-consent request? The Chair hears none, and the request is agreed to.
The Senator from Maine is recognized.
Mr. MUSKIE. Mr. President, may I inquire how much time I have?
The PRESIDENT pro tempore. The Senator has 3½ minutes remaining.
Mr. MUSKIE. This poses the problem. Now I have a little more than 3 minutes to spell out my position again, to answer any questions about it or to pose any questions of my own, and to cover rebuttal. These are the difficulties of trying to comply with the unanimous consent agreement. All I can do in 3 minutes is to present the thrust of my argument.
I have said that it was the intent of the writers of the Constitution to make the elector a free agent.
I think that is still his status under the Constitution. The question is whether an elector can, and whether in this case an elector has, so exercised his freedom of choice, and made it public, as to bind himself to the choice he has already indicated.
In this case, a North Carolina elector was nominated as an elector by a district convention of the Republican Party in North Carolina. He did not reject that nomination. His name was not placed on the ballot because under North Carolina law, as in the case of 34 other States, only the names of the party's presidential and vice-presidential candidates appear, and electors are elected for the presidential and vice-presidential candidates receiving the plurality of the vote in North Carolina.
Dr. Bailey and 12 other North Carolina Republican electors were so elected on November 5. The election was certified. Dr. Bailey did not reject that election or that certification. So up to that moment, so far as the people from North Carolina understood, he was committed as an elector on the Republican slate, riding under the names of Richard M. Nixon and SPIRO T. AGNEW, to vote for that presidential and vice-presidential ticket.
On December 16, the electors of North Carolina met in Raleigh to cast their votes. It was assumed by the State attorney general that they would do what was expected of them; that the papers to be transmitted to the seat of Government in Washington were made out accordingly; that is, that 13 votes would be cast for Richard M. Nixon. It was at that point that Dr. Bailey decided to cast his vote for the Wallace-LeMay ticket instead.
I say that under the Constitution he had a right of free choice, but that he began to limit his own free choice when he accepted the nomination of his party, when he consented to run on the same ticket with Nixon and AGNEW, when he consented to run under a ballot from which his name was absent, and which would generate votes for him only to the extent that the people of North Carolina chose to vote for Richard M. Nixon and SPIRO T. AGNEW.
So when election day had come and gone without his indicating this intention, I say that he had limited his own choice, and that under the Constitution it is permissible for him to limit his own choice. Having done so, he is bound by it when the electoral college convenes.
The PRESIDENT pro tempore. The Chair regretfully informs the Senator from Maine that his time has expired.
Mr. HATFIELD. Mr. President, will the Senator yield?
The PRESIDENT pro tempore. There is no time to yield.
Mr. HATFIELD. May I speak on my own time?
The PRESIDENT pro tempore. The Senator from Oregon does not have time unless it is allotted to him by the majority leader or the minority leader.
Mr. MUSKIE. I will be happy to yield time to the Senator from Oregon.
Mr. ERVIN. Mr. President, I seek recognition in my own right.
The PRESIDENT pro tempore. The Chair understood that the unanimous consent request was agreed to, Was it not agreed to?
Mr. MUSKIE. It was agreed to.
Mr. HATFIELD. Was it not understood that questions and answers were excluded from the 5-minute limitation?
The PRESIDENT pro tempore. The agreement provides:
Provided further, That the time allotted the proponents shall be under the direction of the majority leader (Mr. Mansfield) and the time allotted the opponents shall be under the direction of the minority leader (Mr. Dirksen).
Therefore, there is no time that the Chair can allot; and he cannot recognize any Senator unless time is yielded to him.
Mr. DIRKSEN. Mr. President, I yield 5 minutes to the Senator from Oregon.
The PRESIDENT pro tempore. The Senator from Illinois yields 5 minutes to the Senator from Oregon. The Senator from Oregon is recognized for 5 minutes.
Mr. HATFIELD. Mr. President, a point of inquiry: May I utilize my time to ask a question of the Senator from Maine?
The PRESIDENT pro tempore. Yes; under the unanimous-consent agreement, the Chair believes that that is permissible.
Mr. HATFIELD. I should like to ask the Senator from Maine whether the laws of North Carolina are so explicit as to indicate what the legal obligations of the elector, Dr. Bailey, are to cast his vote for Mr. Nixon and Mr. AGNEW. Was Dr. Bailey free under the laws of North Carolina as presently constituted to cast his vote for Mr. Wallace and Mr. LeMay?
Mr. MUSKIE. North Carolina makes no provision one way or another with respect to the effect upon a North Carolina elector's freedom of choice of this method of arranging the North Carolina ballot.
Mr. HATFIELD. Mr. President, will the Senator from Maine further yield?
The PRESIDENT pro tempore. The Senator is speaking on his own time.
Mr. HATFIELD. For a layman who is not an attorney, may I understand again the Senator's distinction between the legal responsibilities and the moral responsibilities of this elector?
Mr. MUSKIE. I do not know that I would use either of those words; but, as I understand it, the Constitution, as interpreted by the debates in the Constitutional Convention, clearly makes an elector a free agent. However, from the beginning of the country's history, political parties developed, and the political parties arranged for slates of electors assigned to their presidential and vice presidential candidates. That political party slate of candidates has always been regarded, with but five other exceptions, as binding upon those who are electors on that slate.
So I argue that in the light of that tradition, when an elector chooses to go on a party slate, he is indicating his choice for President.
I say, secondly, that in the case of North Carolina and this statute, which is found also in 34 other States, the fact that only the presidential and vice-presidential names appear on the ballot is confirmation of this tradition; that when an elector accepts a place on a slate under these circumstances, in the light of this tradition, he knows that to the public at large he is saying, by his action, "I am for Nixon for President." He is saying implicitly, in my judgment, "If I am elected an elector under these circumstances, I will vote for Richard Nixon for President."
I believe that is the tradition. I believe that this undergirds the responsibility of an elector; and once he has set that train of understanding in motion, he cannot, after election day, when it is too late for the voters to respond to any change of mind on his part, say, "I changed my mind, and I am going to vote for somebody else." It is in the nature of estoppel.
Mr. HATFIELD. What are the implications in our action here today with respect to precedent for the future?
Mr. MUSKIE. I believe that if we refuse to sustain this challenge, we will be saying that under every circumstance which is present in this North Carolina case, notwithstanding the statutes and the traditions, electors are free to express the preferences they have on electoral college day, whatever their announced preferences may have been before, and that if we do this, we are without recourse. The votes cast on electoral college day are not required to be made public.
They can be kept secret. And if at that point all 13 of the North Carolina electors surprised their State and the country by voting for Wallace instead of Nixon, would we or would we not be helpless to do something about their faithlessness? That is the question before us. If we decide today that we are helpless, that this can be done, we will be opening the door to that kind of maneuvering and faithlessness for the future.
Mr. HATFIELD. What is the Senator's feeling with respect to the free agent concept that the constitutional fathers created out of the elector? The Senator has indicated that this is only if the elector has pledged himself or has not pledged himself prior to the time of casting his electoral vote. Is that correct?
Mr. MUSKIE. Exactly.
The Court has spoken on one aspect of this problem, in an Alabama case, Ray against Blair. The statute provided that political parties could bind their electors to their party's candidate. That issue went into the Court, and the Court held that, yes, this is a permissible statute under the Constitution; so political parties could bind electors.
The PRESIDENT pro tempore. The Chair regretfully informs the Senator from Maine that his time has expired.
Mr. DIRKSEN. Mr. President, I respectfully request that the Chair recognize the Senator from Nebraska (Mr. HRUSKA).
The PRESIDENT pro tempore. The minority leader has designated the Senator from Nebraska (Mr. HRUSKA), and he is recognized for 5 minutes.
Mr. HRUSKA. Mr. President, I rise in opposition to the objection. The Senate should be aware and it should bear in mind, in this very brief and inadequate debate, that the rights, responsibilities, and duties of both Congress -- including this body -- and the electors serving in their official capacity are conferred or imposed by the provisions of our Constitution. Let us start out with that proposition. There is no question about it.
We are asked, in a very limited period of time, to take action pursuant to a statute passed 80 years ago, a statute of highly doubtful constitutionality, a statute of highly doubtful applicability to the situation at hand. We are asked to act without study, without reference to a committee, without being given adequate opportunity to give this matter the type of consideration that Congress always should give very momentous decisions.
I believe we should give serious consideration to that proposition.
Now we are doing more than just acting under the Constitution. We are engaged in establishing a precedent. Whether we like it or not, we are establishing a precedent upon voting to proceed under the statute; and whatever action we take under this statute will be used in future cases to say, "But the Senate has already construed this statute. It has imparted color of constitutionality, of legality, of validity to it."
The Senator from Maine freely says in substance yes, if we make a decision here, in all future cases just like this we will be governed by this precedent.
Neither he nor anyone else will rise to say that this is as far as we will go; we will go this far and no further; and all cases adjudged to be similar to this will be followed according to the decision we make here today. There may be other cases under this statute going further than this, in which Congress will undertake to say such and such a ballot from such and such a State, in some future election, was not cast regularly, and therefore we, the Congress, assume that responsibility, and we will cast it according to the fashion we wish and instruct.
Mr. MUSKIE. Mr. President, will the Senator yield for a question?
Mr. HRUSKA. I shall yield after I complete this brief statement.
We are members of a body who are not qualified to serve as electors, and we are asked to arrogate unto ourselves, the right to pronounce judgment upon and act on behalf of those who are chosen as electors. Such a judgment, such an action, I believe, would be unconstitutional.
I yield to the Senator from Maine.
Mr. MUSKIE. I have no time.
Mr. HRUSKA. On my time.
Mr. MUSKIE. This is the point I make, and I ask it in this question: Is it not true that whatever we do or fail to do today, whether we sustain the challenge or do not sustain it, is a precedent for the future? That is the importance of this matter.
Mr. HRUSKA. It is.
Mr. MUSKIE. Whatever we do, we can say on the one hand that in no case, where circumstances like this obtain, is Congress empowered to do anything, or we can say Congress can take action.
Mr. HRUSKA. That is true.
But, I say to my colleagues, let us therefore be prudent. Let us say we will not go out to say that we will even take this much authority under a statute of doubtful constitutionality. Let us not take action under it and leave the way open at a time when we are about to engage in a regular legislative process later, starting a week from today, processing proposed legislation which will constitute a resolution to reorganize this entire electoral procedure. Let us refrain from approving the pending motion, and thus avoid the making of a dangerous and unnecessary precedent.
The PRESIDENT pro tempore. The time of the Senator from Nebraska has expired.
Mr. KENNEDY. Mr. President, I ask the Chair to recognize the Senator from Michigan (Mr. HART).
The PRESIDENT pro tempore. The Senator from Michigan is recognized for 5 minutes.
Mr. HART. Mr. President, would I be in order if I were to ask the following question of the Senator from Maine– that he, for my edification, explain what else he wanted to say if he had 5 more minutes?
The PRESIDENT pro tempore. The right to ask questions is specifically in the agreement.
Mr. HART. I ask the Senator from Maine to develop what he would have developed more fully if he had had 5 more minutes.
Mr. MUSKIE. Mr. President, I believe it important to bring to the attention of the Senate some of the instances in which courts of one jurisdiction or another have spoken on questions that relate to this matter.
A case directly in point is Thomas against Cohen, in which a voter challenged the constitutionality of the practice of putting only the names of the presidential and vice-presidential candidates on the voting machine, as in the case of this North Carolina situation. He argued that since he was voting for electors who would be free to exercise discretion, he had a right to know for whom he was voting.
This is what the court said:
The electors are expected to choose the nominee of the party they represent, and no one else. So sacred and compelling is that obligation upon them, so long has its observance been recognized by faithful performance, so unexpected and destructive of order in our land would be its violation, that the trust that was originally conferred upon the electors by the people, to express their will by the selections they make, has, over these many years, ripened into a bounden duty -- as binding upon them as if it were written into the organic law. The elector who attempted to disregard that duty could, in my opinion, be required by mandamus to carry out the mandate of the voters of his state.
This is the one court case we have which speaks directly on the point before us.
Mr. HOLLAND. What was the name of the case?
Mr. MUSKIE. This was the case of Thomas against Cohen. It is a New York case found at 146 New York Misc. 836.
Mr. HOLLAND. I thank the Senator.
Mr. MUSKIE. It is a case from the New York Supreme Court.
I wish to call the attention of the Senate to one other case. In this very election campaign, in the State of Ohio, when Mr. Wallace, who had not met the requirements of the local law for putting his electors on the Ohio ballot, and had not met the time requirements, and had not held a primary election as required by Ohio law, went to the court to get his electors on the ballot, the court said he had every right to do so because to do otherwise would be to deprive the voters of an effective voice in the selection of the President of the United States. That is the effective voice doctrine I have been talking about.
If this elector could refuse to honor the mandate of his party and if all 13 of them could do so, and they could if we so hold today, the voters of North Carolina who wanted to vote for Richard Nixon would be deprived of an effective voice as was said by the court in Ohio.
We cannot ignore the responsibility of the consequences of what we do notwithstanding the statement of the Senator from Nebraska. If we do not question Dr. Bailey's action, we will be opening a door to fraud and saying that even though we knew Dr. Bailey was motivated by fraudulent reasons -- and I do not charge he was -- but even though we knew it, then Congress is powerless to act when that fact is exposed for the first time under similar circumstances.
Therefore, the precedent which we are in a position to make today should give pause to prudent-minded Senators. Neither choice is a happy one. I wish the Constitution were clear.
I understand, too, that what we do here will not fill up all the holes in the electoral process, but we have an opportunity to reduce one kind of risk that is potentially a serious risk, frustrating the will of the people and throwing the country into a turmoil in some future presidential election.
I have tried to bring this matter to the attention of the Senate.
The PRESIDENT pro tempore. The time of the Senator has expired.
Mr. DIRKSEN. Mr. President, I ask that the Chair recognize the Senator from Massachusetts.
The PRESIDENT pro tempore. The Senator from Massachusetts is recognized for 5 minutes.
Mr. BROOKE. Mr. President, the question before us is a grave and complicated one. It appears that a serious inequity is impending. The people of North Carolina have voted in the expectation that their certified electors would cast their ballots for the presidential and vice-presidential candidates who carried the State. Thus, they no doubt expected all 13 electoral votes to be cast for the Honorable Richard Nixon and the Honorable SPIRO AGNEW.
It seems clear that the elector involved is guilty of bad faith, of violating the trust of the people who voted for the Republican ticket in North Carolina.
The injustice of this is evident, but the appropriate remedy is far less so. In the brief time allowed for comment, I cannot review all the factors involved. I would like to indicate the considerations which seem to me governing.
In a system of constitutional government matters of procedure often become vital issues of substance. I submit that such a case is now before us. There are strong constitutional grounds for the authority of a State to bind its electors to vote as they are pledged. If a State has so bound its electors, I would contend that the Congress can properly act to see that the State's legal requirements are fulfilled. This would be a reasonable construction of the 1887 statute which provides that Congress can reject an elector's vote which has not been regularly given.
But it is my considered opinion that, unless the State chooses to bind its electors, Congress cannot do so after the fact.
Among the many serious implications of this situation, one lesson in particular stands out:
No official should ever be granted discretionary authority unless the people clearly understand that, under some circumstances, he may actually use it. And if such authority, once granted, is deemed excessive or unwise, the people should explicitly and promptly rescind it.
As I understand the relevant constitutional guidelines, the power to remedy this particular problem lies with the people of North Carolina acting through their representative institutions at the State level. After all, they are the parties most directly abused by the elector's alleged faithlessness.
In addition, however, there is a national interest in removing so critical a loophole in our constitutional system. If the electoral college is to remain an element in our political life, surely we should move to design a constitutional amendment which, once and for all, binds electors to vote for the candidates to whom they are pledged. I hasten to add that this possible change in our electoral system will certainly not suffice. Indeed, one of the paramount tasks of this Congress will be to examine the full range of constitutional proposals to create a fair and secure procedure for presidential elections.
For these reasons, I cannot support the resolution to reject the vote in question. The fact that such an obvious inequity can occur is, in my opinion, a most compelling argument for prompt and urgent efforts to amend the Constitution and eliminate this serious defect in our electoral system.
If I have time remaining, I am pleased to yield to the Senator from Maine.
The PRESIDENT pro tempore. The Senator has one-half minute remaining.
Mr. MUSKIE. I thank the Senator.
I wish to make this point. When the Senator concedes that an elector can be bound by a pledge to his party or under a State statute, it seems to me he must take the next step and agree that an elector may bind himself. He does if he accepts the pledge imposed by a party or if he accepts the pledge imposed by a State statute. If he puts himself in that position, it seems to me he would be bound.
The PRESIDENT pro tempore. The time of the Senator has expired. To whom does either leader yield time?
Mr. DIRKSEN. Mr. President, I ask that the Chair designate the distinguished Senator from Tennessee.
The PRESIDENT pro tempore. The Senator from Illinois designates the Senator from Tennessee.
The Senator from Tennessee is recognized for 5 minutes.
Mr. BAKER. Mr. President, I am a stanch advocate and supporter of electoral reform. It has always seemed clear to me that a paramount goal of any democratic society must be the continuing effort to insure that the vote of each citizen is as equal as institutionally possible to the vote of every other citizen. Careful revision of statutes and ordinances at every level should be undertaken to guarantee the greatest possible participation of every enfranchised citizen in the processes of government.
The Presidency of the United States is the greatest, and most powerful symbol of elective office in the world. It and the Vice Presidency are the only offices in our republican form of government that belong to all of the people. The President's constituency is not a district or a State but the entire Nation. It appears to me absolutely essential that the election of the President of the United States be accomplished in the most direct, democratic, and participatory manner that can be devised.
The existing electoral college system does not meet the needs of our modern democracy. The national election just past has made the dangers incipient in the system so perilously clear that large segments of the public and many Members of Congress are at last disposed to make long-needed changes in our manner of electing Presidents.
Mr. President, as I understand the argument of the distinguished Senator from Maine, there are two principal reasons for the challenge.
The first is that there is a moral commitment on behalf of Dr. Bailey, the North Carolina elector, to cast his ballot for the Republican nominee because of his acceptance of that nomination by his party.
The second is -- and this may be, inferentially, assumed rather than directly stated by the distinguished Senator from Maine -- that by drawing attention to the situation, we may heighten the pressure for constitutional reform and that this will obviously necessitate facing the problem in the future.
On the first point of the moral responsibility of this North Carolina elector, this Nation is and was conceived as a nation of laws and not of men. The laws on the statute books of this Government and the various State and local governments in the United States are our bulwark against capricious action by anyone or by any Executive or legislature now or in the future. If the Senate and the House now engage themselves in determining the morality or the propriety of an activity, as distinguished from the effects of statute law, it seems to me that we breach one of the principal safeguards of this Republic for individual freedom.
On the second point of whether the Congress can bring increased attention to the requirement for electoral reform, let me suggest that if we take this action by upholding the objection, instead of increasing the pressure for electoral reform, we will, in effect, diminish that pressure because many people around the country will say, "Well, maybe the electoral system is not so bad after all. If there are errant electors, Congress can, after all, take care of them."
Mr. President, I have no desire to see the Republic converted into a parliamentary system, but that is precisely the direction we will move if we uphold this objection. By establishing this precedent, we would, by implication at least, create within the House and Senate the authority to elect the President regardless of the electoral college or the electoral machinery that exists now or may exist in the future.
Mr. President, I applaud the purpose expressed by the distinguished Senator from Maine
The PRESIDENT pro tempore. The time of the Senator from Tennessee has expired.
Mr. BAKER (continuing). But I cannot support his motion.
Mr. KENNEDY. Mr. President, I yield 5 minutes to the distinguished Senator from Idaho (Mr. CHURCH).
The PRESIDENT pro tempore. The Senator from Idaho is recognized for 5 minutes.
Mr. CHURCH. I should like to ask, for purposes of clarification, two or three questions of the distinguished Senator from Maine.
The first question, as I understand the distinguished Senator from Maine, is that he is not contending the Constitution is not perfectly clear that an elector is a free agent.
Mr. MUSKIE. The Senator is correct.
Mr. CHURCH. If Dr. Bailey had been unpledged, then I take it that there would be no basis for objecting to the vote that Dr. Bailey cast.
Mr. MUSKIE. The Senator is correct.
Mr. CHURCH. When Dr. Bailey made a pledge to the people of North Carolina, he assumed a moral obligation. It is argued that his failure to abide by his pledge was a violation of this moral obligation as distinguished from a legal obligation. But I would ask the Senator from Maine if it is not entirely possible, in fact, if it is not well known to the law of equity that a moral obligation can become a legal obligation, under the doctrine of estoppel; in particular, if a person makes a representation upon which others rely to their detriment, that person can be held to the representation he made by court action, is not that correct?
Mr. MUSKIE. That is correct, as I understand the laws of estoppel from my days in law school, which are quite a number of days behind me now.
Mr. CHURCH. Where the court finds this condition exists, then the court can enforce the commitment. Is that not essentially the argument which the Senator from Maine is making, that since Dr. Bailey represented to the people of North Carolina that he would vote for Mr. Nixon, that since they presumably voted for him in order to support the Nixon candidacy, he has, by his own act, declared in advance how he will act in discharging his agency when he casts his vote as an elector, so that under the doctrine of estoppel, he should be bound to that commitment?
Mr. MUSKIE. That is right. There is another way to put it; that under the Constitution he is free to express his individual preference, but the Constitution does not say that he has to express it only on electoral college day. If he starts expressing it several weeks or months before under circumstances that lead the voters to rely upon his expression, not only is he discharging his right under the Constitution to express his free choice but, in addition, he is putting himself in the position where the people rely on what he has done. So I think that what Dr. Bailey did, up until the time he cast his vote, is consistent with the Constitution and was consistent with the commitment on his part from which he should not have been able to back away.
Mr. CHURCH. I would say, in addition, that we are not discussing here merely a moral commitment but one that has become legally binding. If Congress recognizes the validity of Dr. Bailey's irregular vote, by voting down the objection raised by the distinguished Senator from Maine, then we declare our impotence to undo a fraud perpetrated upon the people of North Carolina.
Mr. MUSKIE. That is the way I see it.
Mr. ERVIN. Mr. President, will the Senator from Idaho yield for a question?
Mr. CHURCH. Yes, I am glad to yield, within the time I have remaining.
Mr. ERVIN. Does the Senator from Idaho seriously contend that the pledge Dr. Bailey made was a false statement as to who he should vote for and that that would amend the Constitution of the United States?
Mr. CHURCH. I would say to the Senator that there is no question here about the free agency of Dr. Bailey, had he run unpledged.
But the free agency of Dr. Bailey was pledged to the people of North Carolina when he told them he would vote for Mr. Nixon. That is the essence of the argument being made by the distinguished Senator from Maine.
Mr. ERVIN. My question is, Does Dr. Bailey, if he made a false promise, change the Constitution? That is the argument of the Senator, as I understand it.
Mr. CHURCH. I can merely repeat what I have already said, that when Dr. Bailey indicated his stand, he exercised his agency and should be held to it.
(At this point the Acting President pro tempore assumed the chair.)
Mr. SCOTT. Mr. President
The ACTING PRESIDENT pro tempore. Does the Senator from Pennsylvania desire to yield time?
Mr. SCOTT. Mr. President, I yield 5 minutes to the distinguished Senator from North Carolina (Mr. ERVIN).
The ACTING PRESIDENT pro tempore. The Senator from North Carolina is recognized for 5 minutes.
Mr. ERVIN. Mr. President, in 1933 North Carolina had to print the names of 26, 39, or more candidates for electors on every ballot. To simplify matters, the State legislature provided that each political party should file the names of its candidates for electors with the secretary of state; that the name of the candidates of each party for President and Vice President should be printed on the ballot; and that votes for the candidates of a political party for President and Vice President should be votes for the electors of the party by which those candidates had been nominated and whose names had been filed with the secretary of state.
This statute merely undertook to avoid the confusion of printing the names of numerous candidates for electors on the ballot. It did not undertake to pledge the electors to do anything.
As a writer stated at the time on pages 229 and 230 of volume 11 of the North Carolina Law Review:
Neither the old law nor the new law, however, pledges the elector to cast a party vote. and legally, at least, the individual elector, as was intended by the framers, still has discretion to cast his vote for whomsoever he individually desires.
Mr. President, this whole question is answered in the last comprehensive set of books on constitutional law written by a man who would be judged to be quite liberal in his philosophy of the Constitution; namely, Bernard Schwartz. The relevant volume of this treatise, volume 2 of the Powers of the President, was printed in 1963. It answers the whole question here. The author points out that all the court held in Ray against Blair was that the State Legislature of Alabama could empower a political party to require one seeking the nomination of that party for an elector in the party's primary, to take a pledge to support the nominees of the party for President and Vice President.
The Supreme Court held, by a majority opinion, that under the authority of an Alabama statute the party could do this and exclude a man from running in a primary for its nomination as its presidential elector if he refused to take the pledge. That is as far as the Court went. It did not hold the State or the party or any other agency could control the vote of the elector when he violated his pledge.
I shall not take the time to read this statement of Bernard Schwartz, but it appears in volume 2, at pages 8 and 9. He takes up all the arguments that have been made here and he says emphatically that the independence of the electors still continues as a matter of constitutional law, regardless of the rarity with which it may, in fact, be asserted. He also said the Supreme Court, in reversing the Supreme Court of Alabama, made an undue effort to impair an elector's freedom to vote as he wishes.
Let me quote at length what Mr. Schwartz says on this question on pages 8 and 9 of volume 2 of the Powers of the President:
The examples of electoral independence in 1948 and 1956 just referred to, and similar incidents in 1960, as well as attempts in recent years by dissident Democrats in several southern states to obtain the nomination of uncommitted Democratic electors, have led to attempts to deal with the problem of the personal role of electors. Thus, in 1952, the Democratic Committee of Alabama, acting under the authority of state law, adopted a rule requiring candidates for nomination as Presidential electors in the Democratic primary to take a pledge to support the nominees chosen by the party's national convention. A candidate for the office of elector in 1952 refused to take such pledge and the party officials, in turn, refused to certify him as a candidate in the Democratic primary. He then brought a mandamus proceeding. The highest state court held in his favor, on the ground that the required pledge violated the freedom of choice which the Constitution vested in Presidential electors.
The Supreme Court reversed. According to it, the Twelfth Amendment does not bar a political party from requiring the pledge to support the nominees of the national convention. The Constitution does not prohibit an elector's announcing his choice beforehand -- hence, in effect, pledging himself. A party may require such a pledge as a condition to running in its primary. Candidacy in a primary is a voluntary act which requires compliance with the rules of the party concerned. As the Supreme Court expressed it, "Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge."
The high bench decision upholding the Alabama pledge is sound if we consider the pledge itself as of no more legal effect than the prevalent custom of electors to vote for their party's choices. An elector who violated his pledge would, it is true, subject himself to severe moral censure, but his ballot would not be subject to any legal attack.
An entirely different situation is presented when the state does directly interfere with the elector's freedom of choice in actually casting his ballot. Such direct interference occurred under a 1945 Alabama law, which provided that electors "shall cast their ballots for the nominee of the national convention of the party by which they were elected." Such law, requiring the elector to cast his vote in a particular way, was declared unconstitutional by the Alabama court six months before the 1948 election. After the election, petitions were filed with the Supreme Court in Washington to enjoin the electors in Alabama from voting for other than the Democratic nominees, but the Court refused to entertain the action.
It is difficult to see how a different decision could be reached than that of the Alabama court. It is one thing for electors to vote at their party's call, or even for them to be required to take a legally unenforceable pledge to do so. It is quite another for them to be bound by statute to vote a certain way. So long as Article II and the Twelfth Amendment remain unchanged, a law cannot make a legal obligation out of what has become a voluntary general practice.
I wish to emphasize Mr. Schwartz' assertion that even a State can not control the vote of an elector. He points out that after an election in Alabama, which had been held under the 1945 Alabama law, petitions were filed in the Supreme Court of the United States asking that the electors be compelled to cast their votes for the nominees of their party. The Supreme Court of the United States refused to entertain that suit, recognizing that it could not order electors how to vote in a presidential election.
The action of the Supreme Court is equivalent to a holding by the Supreme Court that no court, not even the Supreme Court of the United States, can compel a presidential elector to keep a pledge which he has made either under State law or voluntarily.
Mr. Schwartz concludes his discussion with these words:
So long as Article II and the Twelfth Amendment remain unchanged, a law cannot make a legal obligation out of what has become a voluntary general practice.
Surely, Dr. Bailey's pledge could not change the meaning of the Constitution of the United States. It is absurd to maintain that it could.
The ACTING PRESIDENT pro tempore. The time of the Senator has expired.