CONGRESSIONAL RECORD -- SENATE

January 6, 1969

Page 197

COUNTING OF THE ELECTORAL VOTE

Mr. MUSKIE. Mr. President

Mr. MANSFIELD. Mr. President, will the Senator yield briefly to me without losing his right to the floor?

Mr. MUSKIE. I yield.

Mr. MANSFIELD. Mr. President, I ask unanimous consent that until the Senate proceeds to the House at 12:45 for the counting of the electoral vote, it proceed to a discussion of the possible issues which may arise in that session, and that the time be equally divided and controlled by the proponents and opponents, with the majority leader or someone designated by him in charge of the time for the proponents, and the minority leader or someone designated by him in charge of the time of the opponents.

Mr. DIRKSEN. Mr. President, reserving the right to object, and this may be as good an opportunity as any for knowing what the format will be, I understand when we go into joint session it is expected that the objection which has been referred to with respect to a certain elector will be proffered in the joint session.

The PRESIDENT pro tempore. The law provides for the objection to be submitted at the joint session.

Mr. DIRKSEN. That is correct.

The PRESIDENT pro tempore. But that is the limit of the authority of the joint session, and the law then requires the Senate to repair to its Chamber and consider the objection, and the House to consider the objection in its Chamber, and, of course, the Senator is familiar with the law that provides that if one body agrees and the other disagrees, the certificate stands. There are other provisions of the law, but they will be settled in the Senate, except when we return to the House of Representatives to report the results of the proceedings of the Senate.

Mr. DIRKSEN. If I may propound a parliamentary inquiry, I should like to ascertain now, if possible, exactly how this objection is going to be registered, and whether or not it is to be done on a voice vote, or whether a roll call is anticipated, and whether we are operating under the rules of the House of Representatives or of the Senate. Those matters are all obscure now.

The PRESIDENT pro tempore. The objections must be filed in writing, signed by a Senator and a Representative. The joint session may not take any action whatever, may I say to the Senator from Illinois; but the Senate will return to this Chamber and when it returns, it will be bound by the law which, as I recall, provides for 2 hours of discussion, limited to 5 minutes to each Senator. The Senate will then determine whether it will decide the issue on a viva voce vote or a rollcall vote, or on a standing division.

Mr. DIRKSEN. Mr. President, is my understanding correct that the only issue before the Senate, if and when we return, will be the question of the revision of the statute to cover a case of this kind?

The PRESIDENT pro tempore. No; there cannot be any issue on the revision of the statute at that point. It will be on the application of the statute to the constitutional principles regarding the action of electors.

Mr. DIRKSEN. I have a copy of it, prepared by the Parliamentarian, which I anticipated was a modification of the statute which was to be offered here in order to cover the case.

Mr. MUSKIE. Mr. President, will the Senator yield?

Mr. DIRKSEN. I yield.

Mr. MUSKIE. At one point last week we contemplated the possibility of liberalizing the terms for debate by the introduction of a resolution, which could have been done last Friday and hopefully enacted by both Houses and signed by the President before noon today.

But rather than pursue that route, after discussing the matter with the Parliamentarians of both Houses, the distinguished Senator from Georgia (Mr. RUSSELL), the distinguished Senator from North Carolina (Mr. ERVIN), and others, it was decided to ask the Senate, with respect to the debate, to give unanimous consent to the usual procedure in the Senate; that is, that the 2 hours be divided equally between the proponents and the opponents and controlled by the majority and minority leaders or any other Senators they may designate, and that the debate thereafter continue as it customarily does in the Senate under such unanimous-consent agreement. Since we found agreement among the Senators I have mentioned that this procedure was possible, subject, of course, to approval of the Senate, we decided to follow that route. So this afternoon, after we reconvene, I take it that a unanimous consent request will be propounded to that effect, governing the terms of the debate.

Mr. CURTIS. Mr. President, reserving the right to object, and I shall not object, I should like to inquire, inasmuch as the House of Representatives and the Senate both recognize as valid an action taken by unanimous consent, whether it would be possible, in the joint session, to ask unanimous consent that all other electoral votes be counted, that the result be declared and certified, and that the one vote in question be deferred for further deliberations.

My reason for the inquiry is that the Constitution gives to each body the right to determine its own membership; yet, when a contest arises, the apparent winner is sworn in and the matter is deferred for due deliberation, committee hearing, and so on.

Would it violate the Rules of the Senate to have a Senator propound a unanimous-consent request in the joint session, to the effect that all votes except this one be counted, and the result declared, and the contested matter be deferred?

The PRESIDENT pro tempore. The Chair states to the distinguished Senator from Nebraska that the joint session is not conducted under the Rules of the Senate; it is conducted under the express provisions of the Constitution of the United States relating to the election of the President, and the Constitution prescribes the procedures.

It is a common saying that the Senate can do anything by unanimous consent. I do not know whether that applies to the Rules of the House of Representatives or not. The Chair would hope that we would proceed in the regular order. It takes only about 15 or 20 minutes to run through the States, and to do otherwise might be construed as denying some Members a right to interpose objections as authorized by the law. While the Chair would not object, the Chair would hope that some other Member of this body or of the House of Representatives would object to dispensing with the constitutional procedure that is set forth in some detail.

Mr. CURTIS. I thank the distinguished president for his comment on the matter. I believe that the same constitutional prerogatives to determine contests in the Senate exist; yet, over a long period of time, we have adopted our procedure, sometimes by unanimous consent.

The PRESIDENT pro tempore. Of course, this is purely an advisory opinion, and the present occupant of the Chair does not look with any high degree of approval on advisory parliamentary opinions. But it is the opinion of the Chair that under the wording of the statute, considered in connection with the Constitution, no final declaration of the vote can be made until after the two bodies have separately considered any objection that might be entered. I doubt very seriously that the unanimous-consent request would be in order.

Is there objection to the request of the Senator from Montana?

Mr. MANSFIELD. Mr. President, this applies only to this morning.

The PRESIDENT pro tempore. I understand. The request is that the time be equally divided from now until 12:45, when the Senate will retire to the joint session, the time to be controlled by the majority leader and the minority leader.

The Chair hears no objection, and it is so ordered.

The Chair recognizes the Senator from Montana.

Mr. MANSFIELD. Mr. President, I now yield to the Senator from Maine.

Mr. MUSKIE. I thank the Senator from Montana.

I take it that Senators are fully informed about what it is that I intend to propose this afternoon, when the Senate meets in joint session with the House to count the electoral votes for President and Vice President of the United States.

To the best of my knowledge, only one objection will be filed. That objection will be filed to the vote of the elector from North Carolina who was elected an elector on a Nixon slate, but who cast his vote for George C. Wallace and Curtis LeMay. That objection will be limited to the request that, if both Houses agree, that vote will be rejected.

There has been some discussion about a proposal that, in addition, Congress be asked to declare that the vote to be cast for Mr. Nixon and Mr. Agnew. Those who support the objection will not make that request this afternoon. The reason we will not is that, after discussion with persons who were in a position to advise us on the parliamentary implications of such a move, we were afraid that to make both requests might result in a different action in each House, and thus vitiate any effective action by Congress with respect to the vote in question. Under the statute, each House must take the same action if the challenge is to be sustained. If the Houses disagree, the challenge is not sustained.

To introduce both requests for relief, it seemed to us, therefore, would open up possibilities of disagreement, even though both Houses might agree, or might be in agreement, with respect to the request to reject the vote for Mr. Wallace. To avoid that risk, therefore, we shall limit the objection to a request that if both Houses agree, the challenged vote will be rejected.

Mr. MURPHY. Mr. President, will the Senator from Maine yield?

Mr. MUSKIE. Yes; I am happy to yield to the Senator from California.

Mr. MURPHY. I should like to ask a simple question: Would this procedure in any way whatsoever cloud the official announcement of the election?

Mr. MUSKIE. Would it what?

Mr. MURPHY. Would it cloud the official announcement of the election in any way?

Mr. MUSKIE. No; I cannot see how that decision by Congress with respect to this vote would change the result in any way or affect the result or cloud it in any way.

Mr. MURPHY. In other words, do I correctly understand that the only question in issue is with respect to one particular vote?

Mr. MUSKIE. The Senator is correct.

Mr. MURPHY. I thank the Senator.

Mr. MUSKIE. I am not aware of any other challenge with respect to any other vote or any other State. We are concerned with this one vote, and this one vote alone.

The discussion this morning was scheduled because of what appears to be very rigid limitations in the statute concerning the debate once the Senate returns to its Chamber to debate the objection. The statute provides that the debate shall be limited to 2 hours and that each Senator shall be entitled to speak for 5 minutes and not more than once. This restriction, it seemed to us, if enforced, would rigidly limit the possibility of conducting a discussion on this issue which would be useful to the country. So we scheduled this discussion this morning, when we are unrestricted, in that rigid sense, in order to give Senators who are interested an opportunity to have an understanding of the issue before we begin the formal debate. The time this morning has been divided, as Senators have heard, between the opponents and the proponents before we get down to the question of this objection.

Mr. MUNDT. Mr. President, will the Senator from Maine yield?

Mr. MUSKIE. I am happy to yield to the Senator from South Dakota.

Mr. MUNDT. I am not sure whether I have understood the Senator correctly. When we were discussing the matter last week, I thought the thrust of his proposal was to transfer the vote of Dr. Bailey from Wallace, for whom he cast it, back in support of Richard Nixon, for whom the people of North Carolina voted. Was not that the thrust of the original proposal?

Mr. MUSKIE. We proposed two steps. First, that the vote cast for Mr. Wallace in North Carolina be rejected; second, that the vote be announced for Mr. Nixon; yes. Two steps were proposed, as the Senator has said.

Mr. MUNDT. Has that been changed?

Mr. MUSKIE. We have dropped the second request, for the reason that I tried to describe earlier. I shall be glad to try to describe it again.

Under the statute that we are using to bring the question before Congress, in order to sustain the challenge -- or the objection; that is the word of art -- both Houses must agree. We sought a way to make it possible for each House to speak out on each of these points; that is, the question of the rejection of the vote and also the question of casting the vote for Mr. Nixon. We considered, for example, the possibility of filing two objections, one limited to the rejection of the vote, the other covering both points.

But it was our impression, after discussing the question with our parliamentary consultants, that if we were to take the second course, and if the two Houses were not in complete agreement with respect to both courses, we might then face the possibility that the action of the two Houses would be declared in disagreement because they did not agree totally. So the possibility faced us that even though both Houses agreed to reject the vote cast for Mr. Wallace, if one House disagreed with respect to casting the vote for Mr. Nixon, the action of the Houses in agreeing to the first point would be vitiated.

Mr. MUNDT. I can understand the dilemma that disturbs the distinguished Senator from Maine.

But it would seem to me that the dilemma could be resolved by putting both provisions within the same objection, because we then consider the problem differently from what the Senate is now undertaking to do.

The first proposal would have retained for the people of North Carolina whatever number of electors they are entitled to under the Constitution. The second proposal, it seems to me, deprives the people of North Carolina of one of their electors. I just do not see how we have any right, as a Congress, to tell the people of North Carolina that they have the number of electors to whom they are entitled, minus the one which we have rejected.

As long as the Senator retained the thrust of the other vote, as he read it, I thought he was on sounder ground.

Mr. MUSKIE. I am in complete agreement with the Senator's position. The question that faced us was. "Should we risk setting a larger precedent at the risk of losing a lesser precedent?" It is my feeling that if Congress will take the position which I hope it will take; namely, that the vote cast for Mr. Wallace ought to be rejected, that action on the part of Congress will, in the future, inhibit electors from taking the action that Dr. Bailey, of North Carolina, took in this case.

I would make this observation, too: That as the North Carolina situation now stands, the effective vote of North Carolina is limited to 11 votes, because one of the votes cast for Mr. Nixon is offset by the vote cast for Mr. Wallace. So if Congress were to reject the vote cast for Mr. Wallace, one vote -- one effective vote -- would have been added to North Carolina's total, and North Carolina would have 12 votes cast for Mr. Nixon without any offsetting ones cast for Mr. Wallace. I felt we ought to take that much of a gain, even though we could not, perhaps expect to get the total gain we would like.

Mr. MUNDT. What disturbs me is that there is a switch from what originally seemed to be an effort to deprive Dr. Bailey of his option, which he took, and thereby punish him for taking it, and instead to punish the people of North Carolina by depriving them of the vote of one of their electors. The two provisions could be joined with the simple conjunction "and."

Mr. MUSKIE. The difficulty with that is that we were advised by the Parliamentarian that to submit that kind of proposal might be subject to a motion for a division in one or both Houses, again opening the door to a different action in each House, and thus causing a vitiation of the whole proceeding. We do not want to take that risk. There are a great many holes in the electoral procedure at the present time, and we cannot deal with all of them in this proceeding.

Really, my principal purpose in joining in this effort is to open the issue, to expose it, perhaps to identify the dangers and the risks, and by so doing to stimulate the movement for constitutional reform of the entire process.

Mr. CURTIS. Mr. President, will the Senator yield for a question?

Mr. MUSKIE. I yield to the distinguished Senator from Nebraska.

Mr. CURTIS. According to the interpretation placed upon it by the distinguished Senator from Maine, what will happen to this one electoral vote if the Senator's position is sustained?

Mr. MUSKIE. If the objection we intend to file is filed and acted upon and supported, then one of the North Carolina electoral votes will be uncounted.

Mr. CURTIS. Is there anything to the report that the Senator from Maine does not seek to get his resolution agreed to?

Mr. MUSKIE. No. I want it agreed to. I believe in my position.

I have mixed feelings about winning, because I suspect that by losing I might develop more momentum for constitutional reform than by winning.

Mr. CURTIS. I certainly do not mean to challenge the sincerity of the distinguished Senator, because he is so well respected by all Members of the Senate; but I could not help being affected to some extent by his statement that this action is being taken to call attention to some other problem that the distinguished Senator regarded as important.

Mr. MUSKIE. No. Perhaps I made my statement too broad.

All we can hope to do effectively here today, I believe, is to expose this particular weakness or shortcoming in the electoral process and to give the country the benefit of the congressional view with respect to it -- to establish a precedent, for whatever weight that precedent may have in the future. I believe that is a useful exercise, and we should do it. But by getting involved in it, I may say to the distinguished Senator, I think we have dramatized the entire problem and perhaps focused public attention on it in a way that otherwise it would not be focused.

Mr. CURTIS. In dramatizing the problem, is it the contention of the distinguished Senator from Maine that the action he proposes is in accord with the Constitution and existing statutes?

Mr. MUSKIE. Yes; I do. In my opening remarks, I shall amplify that point a little more.

Mr. TALMADGE. Mr. President, will the Senator yield?

Mr. MUSKIE. I am glad to yield to the distinguished Senator from Georgia.

Mr. TALMADGE. I agree with the Senator that the electoral college needs some reform. But would not this be a dangerous precedent, in that it would arrogate to Congress, and not to the electors, the power to elect the President and Vice President? For example, we now have a Democratic majority in the Senate. We have a Democratic majority in the House. If this Democratic majority were so venal, could they not vitiate the entire election process and say that Hubert Humphrey was elected President rather than Richard Nixon?

Mr. MUSKIE. I suppose we could do that with respect to our own election as Senators. I do not believe there is any question as to our right, as a Senate to pass finally upon the election of the qualifications of anyone elected to this body.

Mr. TALMADGE. There is a difference.

Mr. MUSKIE. If we anticipate venality–

Mr. TALMADGE. Senators are elected by popular vote, and each House is the judge of its own membership. But Presidents are elected by the electoral college. As I understand it, we exercise only the function of supervising the casting of those votes and declaring the result.

Mr. MUSKIE. I understand.

Of course, it was the intention of the founders to establish three separate departments of the Federal Government, each as independent of the others as possible. Yet, it was not possible to isolate them from one another because there is a relationship among the three that from time to time has had to be recognized, and the methods by which we recognized that relationship have been referred to as the checks and balances of the Constitution.

Here we have a problem: Electors are elected in accordance with the provisions laid down by State legislatures under the Constitution. Every election is certified by State officials, and they are required to meet on a day set by Congress for the purpose of casting their votes. That date last year was December 16, 1968. Prior to that time, their election as electors had been certified. The 13 North Carolina electors in question, including Dr. Lloyd Bailey, were elected on a Nixon slate. The names on that slate were not on the ballot. There was also a Wallace slate. The names of the Wallace electors were not on the ballot.

These electors were elected only because the presidential candidate of the same party was given votes by North Carolina voters which were then transferred to the electors by operation of State law. There was every anticipation, it seems to me, that the electors of any one of the three slates, if elected, would support the candidate of their party. Prior to December 16, there was nothing to indicate that this was not going to be the case. As a matter of fact, the North Carolina attorney general anticipated that these 13 electors would follow the apparent mandate of the people and that all 13 of them would vote for Mr. Nixon; and the papers were prepared to be transmitted to the seat of government in Washington in accordance with that assumption. But when the electors met, Dr. Bailey decided he was not going to follow that mandate, and he decided to vote for Mr. Wallace and Mr. LeMay.

As a consequence of that, the results of the meeting on December 16 could not be recorded on that day and transmitted to the seat of government, and they were received within the last few days, because it was necessary to revise the papers; and I understand it was necessary for those in charge to travel some 1,200 miles by automobile, from one elector to another, to get the signatures on the new papers.

So the entire process, up until the time Dr. Bailey cast his vote, was geared to the assumption that he had been nominated by district convention to be a Republican elector, that his nomination as such had been filed without his objection with the appropriate State officials, and that his party's candidate for President had gone on the ballot, carrying his vote with it. After the election, his election as a Republican elector was certified by the appropriate State officials, and he did not object. It was not until the electors met in Raleigh that he announced he was not going to do what everybody up to that point assumed he would do -- that is, cast his vote for Mr. Nixon.

He announced what he did. He did not have to do that. The vote on the part of electors is by ballot, presumably secret, if they so choose. So it is conceivable that he could have done this without any warning or any announcement to anybody, that his action would not have been known until the North Carolina certificates were opened in the joint session of the two Houses, and that his action would then become known.

Mr. ERVIN. Mr. President, will the Senator yield?

Mr. MUSKIE. I should like to complete my statement; then I shall yield. The questions that face us are these: First, did he have a right to do what he did? Second, if he did not, what provisions for relief are available, not only to the people of North Carolina but also to the people of the country? We are talking about the President of the entire country, not the president of North Carolina; and the North Carolina votes could well have been decisive in transferring the victory from Mr. Nixon to Mr. Wallace.

So if this surprise were sprung on us this afternoon, sometime between 1 and 2 o'clock, we must ask ourselves this question: Is it something the elector or electors had a right to do? If not, what remedy is available to the country ?

Finally, does Congress have any authority to apply a remedy?

Mr. TALMADGE. Mr. President, will the Senator yield?

Mr. MUSKIE. I yield.

Mr. TALMADGE. I agree with the Senator as to the breach of faith on the part of the elector. It seems to me that it would be even more dangerous if Congress undertook to nullify electoral votes or to change electoral votes, however they may be cast.

Mr. MUSKIE. In other words, the Senator is saying that the least danger involved in this situation is that fraudulent electors, motivated by improper purposes, might elect themselves under this weakness in the electoral process to change and frustrate the result indicated by the electorate and we should stand silently by and let it happen.

Mr. TALMADGE. I am not saying that. I say that it should be changed in a constitutional manner rather than resorting to an unconstitutional method of having Congress either nullify these votes or change them in accordance with its will. I think it would be more dangerous if Congress undertook to declare or to say that we are responsible for how this electoral vote should be cast. We could change the entire result.

Mr. MUSKIE. What I am proposing to the Senate, and I have not had an opportunity to get into my argument, is something far less than that.

Mr. TALMADGE. I thank the Senator for yielding. I do not wish to take any more of the Senator's time.

Mr. MUSKIE. I cannot think of a better time to go into the argument.

Mr. BAYH. Mr. President, will the Senator yield?

Mr. MUSKIE. I yield.

Mr. BAYH. I think the point raised by the Senator from Georgia and replied to by the Senator from Maine is a point well taken. I do not in any way suggest that we, as individual Senators, do not have the right to interrupt the distinguished Senator from Maine. I think I speak for him, and I know I speak for myself.

This effort does not contemplate doing anything that is unconstitutional. I think the Senator from Georgia is correct in saying that we would be derelict in our duty not to do so. It does not contemplate anything unlawful.

I would suggest that the Senator from Maine make his presentation and deal with the constitutional question and the point of law involved; then this body could zero in on those two issues and decide whether the case has merit.

Mr. MUSKIE. I thank the Senator from Indiana. The purpose of the presentation is to answer questions. I believe some minimum presentation on my part will be helpful.

Mr. MILLER. Mr. President, will the Senator yield?

Mr. MUSKIE. I am happy to yield to the Senator from Iowa.

Mr. MILLER. To point up this matter, as I understand it, the point raised by the Senator from Georgia and the Senator from South Dakota is that we are going to be faced with what amounts to a choice between two evils: The evil that if we reject the resolution, then a fraudulent vote can be cast

Mr. MUSKIE. And counted.

Mr. MILLER. And counted. There is that proposition as against the evil that if we adopt the Senator's resolution, the State of North Carolina will be deprived of one of its electors. I think it comes down to that.

Bearing on that, there should be a discussion of the legal procedures that North Carolina either has gone through or could go through with respect to this particular elector. I would appreciate it if the Senator would include this point in his discussion or perhaps yield to the Senator from North Carolina for a discussion on that point, because I think the point as to whether North Carolina may or may not have forfeited its right to hang onto that elector would bear on my decision.

Mr. MUSKIE. If the Senator will remind me of that point later, I will be glad to touch on it. I would like, first, to touch on the positive argument and then come back to that specific point toward the end of my remarks.

This procedure is not intended as a way to achieve constitutional reform. In common with many of my colleagues in the Senate and in the House of Representatives, I am for constitutional reform, but only by constitutional amendment and reforms which must be much broader than the action we propose today. I think that in the history of the country there have been over 500 resolutions proposing the reform of this system. None of them has gotten anywhere, so we are still living with the present electoral system. I think it is possible for us to correct any inadequacies or to shore up any weaknesses, or eliminate them, not by unconstitutional means but by careful study and analysis of the options open to us.

Mr. COOPER. Mr. President, will the Senator yield?

Mr. MUSKIE. I yield to the distinguished Senator from Kentucky.

Mr. COOPER. Perhaps the Senator has already discussed this problem, but if he has not I wish to direct attention to it. I shall be brief in my background remarks.

I think it is clear that article II of the Constitution and the 12th amendment, do not provide specific requirements of the electors as to the candidates for whom they should vote.

Nevertheless, I believe that in the enactment of the 12th amendment it was made clear that they would vote separately for President and Vice President. However, the amendment did not provide that the electors must vote for that candidate for President or Vice President who received the majority vote in the State.

As the Senator pointed out in his remarks, the Supreme Court has upheld the constitutionality of a State statute which requires an elector to take a "loyalty oath" to vote for his party's nominee prior to his certification as an elector as not being contrary to the 12th amendment.

But none of these State statutes provide a remedy to enforce the elector's statutory requirement that he shall vote for the candidate for President or Vice President who receives the majority vote. The Supreme Court has avoided any determination of this issue. In fact, it has suggested in the Ray against Blair decision that such statutes are unenforceable.

As the Senator said, at the time of the Hayes-Tilden election Congress enacted the statutory provision providing for the method of counting the votes. As I read the statute, it simply provides that the votes shall be counted in both Houses of Congress but and I quote "the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been certified."

I now come to my question: Where do we find the authority, or what is the authority, which permits Congress to exclude the vote of this elector, or, to go further, not only exclude it but to reinstate it and count it for Mr. Nixon in this case? Where is that authority found?

Mr. MUSKIE. There are two possible places to look for the authority: The first is the Constitution itself, which may encompass greater authority for Congress in this respect than Congress has implemented with the statute of 1887. The statute of 1887 was an attempt on the part of Congress to codify its understanding of its authority because of the crisis which the Hayes-Tilden situation created for the country.

I think the 1887 statute was broader than was necessary to merely deal with the situation of the Hayes-Tilden matter. It was broader than that, and the words of the key phrase are "regularly given."

The certification by the State relates to the election of the electors. It is not to that point of certification whether the vote cast by the electors was "regularly given." If the phrase "regularly given" involves the vote, then somebody must be in a position to decide whether or not the vote was "regularly given."

The State has not done so in this instance. Indeed, if the votes were cast by secret ballot, there was no opportunity for the State to do so; and since the sealed ballots are to be opened this afternoon after 1 o'clock, there will hardly be an opportunity then for the State to do so. If the phrase "regularly given" is to be evaluated by somebody between 1 and 2 o'clock this afternoon, there is only one instrument for doing so: The Congress of the United States.

Mr. COOPER. The Senator has answered my question. It is his view that the language "regularly given" provides to Congress the authority to determine whether an elector is required to vote according to the majority vote of the State. Is that the argument?

Mr. MUSKIE. That is the argument.

Mr. COOPER. One other question; then I will close. This language is found in the statute, which, since the Hayes-Tilden election, has been amended as recently as 1941. In the statute providing for the electoral vote for the District of Columbia. Congress provided that "each person" elected as elector of President and Vice President, shall in the presence of the Board, take an oath or solemnly affirm that he will vote for the candidates of the party he has been nominated to represent and it shall be his duty to vote in such manner in the electoral college." This indicates the intent of Congress.

Would the Senator consider, then, that to arrive at the result he desires, and to arrive at it properly, that Congress could amend the statute to cover this situation in the future?

These are technical questions but I think we should consider them so as to find out what our powers are.

(At this point the President pro tempore resumed the chair.)

Mr. MUSKIE. We could consider a broadening of the statute of 1887. As a matter of fact, it is arguable that Congress has greater authority to deal with this question than may be found in the statute, because the Constitution in the 12th amendment, which is the pertinent language here, reads:

The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all certificates and the votes shall then be counted;

Bear in mind that the certificates are sealed, and that until they are opened and the contents disclosed, no one -- including Congress -- is in a position to know the extent to which votes may have been irregularly given. If Congress is helpless to act at that point, no one else is in a position to act effectively.

Mr. President, in view of the fact that the Senator from Florida (Mr. HOLLAND) is on his feet to ask me questions, I may point out that not more than 25 minutes remain to me, and I have not yet made my presentation, after which I should like to open the discussion to questions, unless the Senator from Florida has a very pertinent question on this point.

Mr. HOLLAND. Mr. President, I would be very happy to be recognized when the distinguished Senator from Maine completes his main statement, if he will recognize me at that time.

Mr. MUSKIE. Very well.

Mr. President, let me try to simplify my presentation.

To minimize the use of the precedents in order to give the Senate the thrust of my argument, it is clear that the Constitutional Convention intended that presidential electors shall be free agents.

I do not believe that we should consider custom since that time, whatever it has been, as a repeal of an effective constitutional amendment for that purpose. In other words, my argument proceeds on the understanding that it was the intent of the constitutional convention that electors shall be free agents, entitled to express their individual preferences on the day they cast their ballot. But then I add this: free to exercise their individual preferences on that day, unless they, by their act, have previously limited the scope of their freedom.

Mr. President, when the Constitution was written, it did not envision political parties. But, almost immediately, political parties developed and political parties assumed the responsibility of putting together slates of electors committed to the presidential candidate of that party.

From the beginning, that action, and the action of the electors in accepting nomination to such slates, has been regarded as limiting the freedom of choice of the electors on the day designated officially to cast the ballots.

Without any interruption of historical development, that has been the case since the first and second elections. Indeed, the Jefferson-Burr controversy arose out of the fact that the Federal electors felt bound to cast their votes for the two persons nominated for President and Vice President; and because they felt they were bound, and because there was no constitutional provision for separating their votes for President and Vice President, the election was thrown into the House of Representatives.

So that controversy was the direct result of the fact that the electors felt bound and did not feel they were free, on the day officially designated to cast their votes, to depart from the commitment and responsibility which they had accepted.

Thus, we had the Jefferson-Burr controversy, and the 12th amendment was adopted in 1804. The 12th amendment was adopted on the assumption that electors in the future would also feel bound. The 12th amendment was adopted in order to avoid just those stalemates similarly arising.

Why did they arise? Because the electors felt bound.

The solution of the 12th amendment was to permit the electors to vote separately and to do that for President and Vice President; not to eliminate the practice of bound electors, but to act on the assumption that they would feel bound.

If Senators will read the debates in the Senate and House they will find expression after expression by Members of both Houses that the objective was to tie the results as closely as possible to the wishes of the people.

Since that time, there have been 16,510 presidential electors and only six, including this one, have been faithless to a commitment which they had made. Only six.

One of these was in the election of 1796, when a Federalist elector voted for Mr. Adams rather than Mr. Jefferson. One of his constituents, commenting upon that action, stated:

Do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chose him to act, not to think.

The second faithless elector voted in the election in which Mr. Monroe received a unanimous vote of the electoral college, except for this one elector. He was faithless because, he said that no man should enjoy Washington's distinction of a unanimous vote. That was his only excuse.

During the Hayes-Tilden controversy, a Republican elector from New York was tempted to vote for Mr. Tilden, because Mr. Tilden had a majority of the vote, in order to avoid a crisis which would follow the throwing the election into the House and into a special presidential commission. What did he say about his right to do so? I think his exact words are pertinent here.

This was in 1876:

In my own judgment, I have no choice, and am honor bound to vote for Hayes, as the people who chose me expected me to do. They did not choose me because they had confidence in my judgment, but because they thought they knew what the judgment would be. If I had told them that I would vote for Tilden, they would never have nominated me. It is a plain question of trust.

Now, from that time until the 1948 election there were no faithless electors, and the tradition of being bound to their party slate became more and more firmly fixed in the tradition of the country, not as an amendment of the Constitution, but because their acceptance of a place on the party slate indicated their preference for President before the general election, before the electoral college met, under circumstances that entitled the electorate to rely upon that expression of preference. This is the whole point. We are not proposing to amend the Constitution.

Now the question arises, Is it unconstitutional for the elector to limit his freedom of choice on the day the electoral college meets? Well, we have a little guidance from the courts on this question, and they say it is. In an Alabama case they said it is. Let me read the language.

Mr. ERVIN. Mr. President, will the Senator yield?

Mr. MUSKIE. I know the Senator from North Carolina would put a different interpretation on it, but since my time is running out, I will have to ask the Senator to use some of his time to give his interpretation.

In Ray against Blair, in addition to responsibilities making it possible for parties to bind their electors by pledge to the party's presidential candidate, the question arose whether or not that was constitutional, and the Court said this:

Neither the language of Article II nor that of the Twelfth Amendment forbids a party to require of every candidate in its primary a pledge of political conformity with the aims of the party.

Now, if it is possible for the party to require that of a presidential elector, surely it is possible for the elector to bind himself, by whatever act, but especially when he accepts a place on the party's slate, especially, as in North Carolina, where his name does not appear on the ballot. There can be no clearer indication that what is involved is not whether or not the electorate trusts the judgment of the elector. His name is not on the ballot. His identity is not disclosed. How can there be any reliance upon the judgment of an elector? His name was eliminated from the ballot because the legislature of the State regarded the electoral college, in the light of the long traditions of the country, as the means of accepting his ministerial act to record the will of the voters.

Thirty-five States have such statutes. That has a bearing upon the precedent that Congress does or does not set today. Are we going to say to those 35 States that none of these electors are bound by accepting nomination of the party as presidential elector on slates where their names do not appear on the ballot?

I think some 17 or 18 other States provide for explicitly pledged electors. Two States make it possible for slates of explicitly unpledged electors to be elected. May I say to my colleagues that if such a slate were elected and were to meet on electoral college day, in my judgment, notwithstanding all of the history, those electors would be perfectly free to cast their vote in accordance with their individual preferences on that day.

But we are not talking about that date. We are talking about a case in which a North Carolina elector understood the tradition of 180 years, of being bound to one's party's candidate. He understood when he was nominated that he was being nominated as a Republican elector, and he did not object. He understood that he was elected as a Republican elector, and he did not refuse the election after election day. He chose to wait until electoral college day to let us know that he had changed his mind. Has he a right to do so?

Mr. CHURCH. Mr. President, will the Senator yield?

Mr. MUSKIE. I yield to the distinguished Senator from Idaho.

Mr. CHURCH. In the excellent memorandum the Senator has provided for our instruction, I read that:

Since the foundation of the Republic, 16,510 electors have been chose to perform this formal duty. Only six of these votes have been cast in derogation of that duty.

I wish to ask the Senator what action has previously been taken by the Congress in connection with other maverick electors.

Mr. MUSKIE. They have never been challenged.

Mr. CHURCH. This is the first time Congress has been called upon to act?

Mr. MUSKIE. Yes. In the case of the 1796 and 1820 electors who were faithless, I have given my colleagues a description of what was involved. It was not critical to the result, and apparently people took the same view of their aberration as others have since -- that it was of no consequence and unimportant.

The thing that troubles me today is that, beginning in 1948 we began to have a different line of examples, of a clear intention to use this constitutional freedom, so-called, for the purpose of frustrating the will of the electorate.

In 1960 the proposition was circularized to Kennedy- and Nixon-pledged electors that they withhold their votes so that they could exact a bargain from the presidential candidate to whom they would give their votes -- a bargaining commitment presumably on substantive policy matters. That campaign failed, except that an elector from Oklahoma who was elected on a party slate shifted from Nixon to our late colleague Senator Byrd of Virginia.

In this election campaign there was quite a bit of open speculation that one of the presidential candidates was going to undertake to use supposed constitutional freedom of electors to control the election in the electoral college.

So we face this question now not as an isolated instance, but as a deliberate design on the part of people to frustrate the popular will. We have to decide, whether we like it or not, whether we are going to encourage those kinds of movements; whether, in the light of history and the development of the statutes and the circumstances of this case, electors have limited themselves to that kind of freedom of action on electoral college day.

In each instance the record of our country was free of any examples of these faithless electors from 1820 until 1948. Then we began to have the emergence of inconclusive examples, but as a part of a growing philosophy of a belief that, if properly organized and mobilized, the electoral college could become the instrument of people, outside the college, to frustrate the result of the people's vote on election day.

So we have an opportunity here to eliminate that weakness, not on the basis of some new theory, nor on the basis of electors for 180 years, including this one, putting themselves in a position of committing themselves about their vote on election day. I think we ought to speak. Really, either way, this debate should be useful. Congress could say that this kind of thing is possible.

Congress, by the failure to exercise this challenge, would encourage this kind of thing, and then we would really have a constitutional problem, to which we should address ourselves without a moment's delay.

If Congress should sustain the objection, then, as long as we operate under this system, we will have eliminated, or at least reduced, the risk of frustrating the popular will to take place.

Mr. CHURCH. I thank the Senator.

Mr. MUSKIE. I think I would like to reserve whatever time I have left.

Mr. President, how much time do I have remaining?

The PRESIDENT pro tempore. The Senator has 9 minutes remaining.

Mr. MUSKIE. I would like to reserve my time, and then perhaps we could divide our time for answering questions.

Mr. ERVIN. Mr. President I would like to ask the Senator a question. The Senator has made what I construe to be an argument on the statute which North Carolina adopted in 1933. This statute provides that instead of printing the names of the many candidates for elector on the ballot, the names of the candidates for President and Vice President will be printed on it, and that each vote cast for the candidates of a particular party will be counted as votes cast for the electors of such party. This statute is now codified as section 163-209 of the General Statutes, and merely provides, in substance that:

A vote for the candidates named on the ballot shall be a vote for the electors of the party by which those candidates were nominated and whose names have been filed with the secretary of state.

A discussion of the effect of this statute appears in the North Carolina Law Review, volume 11, 1932-33, at page 229. I invite the Senator's attention to this, because I know he does not wish to give an incorrect impression about the law of North Carolina.

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. MUSKIE. I understand that the statute is not expressly binding.

The question we have before us is whether or not the North Carolina statute and the form of the North Carolina ballot add another circumstance which the elector, if he is an intelligent man, ought to have taken into consideration in offering himself for elector.

There was a Wallace slate in North Carolina. There was a candidate in his district. If he were that committed to Mr. Wallace, he could have sought election on the Wallace slate. He did not do so; and, without having had an opportunity to read the North Carolina Law Review or an occasion, really, to read the statute, I think that the voters of North Carolina have a right to assume that, when the only names that appear on the ballot are the names of the presidential candidates, their action in voting has a direct relationship to the result.

In this election campaign in Ohio, the question arose as to whether or not Mr. Wallace's electors could find a place on the Ohio ballot, notwithstanding the fact that he had not complied with the provisions of Ohio law with respect to filing, and notwithstanding the fact that his party did not hold a primary in Ohio.

The Supreme Court held that the names of his electors ought to be on the ballot, because otherwise the voters would not have an effective voice in the choice for President. That is what I call the "effective choice" doctrine.

We are talking about whether or not, if you can have this kind of faithless elector, those who wanted to vote for Mr. Nixon in North Carolina had an effective voice in the selection of a President of the United States, in the light of these circumstances, of which Mr. Bailey made himself a voluntary part.

Mr. MILLER. Mr. President, will the Senator yield?

Mr. DIRKSEN. Mr. President, a parliamentary inquiry.

The PRESIDENT pro tempore. The Senator will state it.

Mr. DIRKSEN. On whose time? I have yielded no time.

The PRESIDENT pro tempore. I understood the Senator from Maine to say he yielded to the Senator from North Carolina on the time of the Senator from North Carolina.

Mr. DIRKSEN. I have not yielded. The Senator from North Carolina has no time until I yield it.

The PRESIDENT pro tempore. The Senator from Illinois is correct.

Mr. DIRKSEN. And I have some requests for time.

Mr. MUSKIE. Mr. President, I reserve whatever time I have remaining, and I have no objection to taking out of my time the time that has already been used. I assume, with the usual graciousness of Senators to each other, that if it is imperative I say something further, I can obtain the time.

Mr. DIRKSEN. Mr. President, I yield whatever time it takes for one question.

Mr. MILLER. I thank the Senator.

The PRESIDENT pro tempore. Is the Senator yielding time to the Senator from Iowa?

Mr. DIRKSEN. Yes, for one question.

Mr. MILLER. I should like to ask the Senator from Maine, and if he wishes he may yield to the Senator from North Carolina for this purpose: What remedy do the people of North Carolina who feel aggrieved by this fraudulent casting of an electoral vote have within their own State? That is the question I should like to have answered. Are the people of North Carolina left without remedy, and they can only look to Congress now, or did they have a remedy which they could have used?

Mr. MUSKIE. To the best of my knowledge, there is no statutory remedy. Whether or not there is a remedy in the courts is a question that has been debated by legal scholars, without really resolving it. There is the question of whether or not what we are talking about is a political question, to which the courts will not address themselves, on the understanding that Congress has that responsibility. But that has not been settled in the courts, and we do not know.

The PRESIDENT pro tempore. The Senator is advised that the 1 minute yielded by the Senator from Illinois has expired.

Mr. DIRKSEN. I think we should hear the other side, and I yield 20 minutes to the Senator from North Carolina.

Mr. ERVIN. Mr. President, I was much gratified when the Senator from Maine said that the elector in question, Dr. Bailey, was under no legal obligation to vote for the Republican candidates for President and Vice President.

This whole objection to Dr. Bailey's vote is based on the theory that Congress can take what was an ethical obligation and convert it into a constitutional obligation.

Under the Constitution of the United States, North Carolina has a right to cast 13 electoral votes.

The duly elected electors cast those 13 electoral votes, 12 for the Republican nominees for the offices of President and Vice President, and one for Governor Wallace for President and General LeMay for Vice President.

This is a proposal to deny the State of North Carolina the right to cast all its electoral votes. I have received no complaints from North Carolina, concerning how Dr. Bailey cast his vote; but I have received this telegram from Dr. David R. Stroud, the chairman of the Republican Second Congressional District Committee. That is the district for which Dr. Bailey was serving as presidential elector.

It says:

A majority of the Republican Executive Committee of the Second Congressional District of North Carolina has been polled, and reaffirmed their support of Dr. Lloyd W. Bailey, presidential elector, in performing his constitutional duty by his vote in the Electoral College.

North Carolina is not complaining about Dr. Bailey's vote, but North Carolina does complain, and I complain, of the effort to deprive the State of the right to have its 13 electoral votes counted as cast at the duly held meeting of the electors.

The Constitution is very plain on this subject.

The original constitutional provision on the subject of the election of the President and Vice President was article II, which read as follows so far as it is presently pertinent:

The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the president of the Senate. The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

In the election of 1800 Thomas Jefferson was supposedly the candidate of the Democratic Party for President, and Aaron Burr was supposedly the candidate of the Democratic Party for Vice President. When the electoral votes were counted under article II, it was disclosed that they had received the highest number of votes and that the totals of their respective votes were exactly the same. So the election was thrown into the House under article II, and Jefferson was chosen President over Burr.

This event engendered much controversy, and resulted in a demand that the Constitution be amended so as to require the electors to vote separately for President and Vice President.

Pursuant to this demand, Congress and the States adopted the 12th amendment, which is now the supreme law of the land on this subject and which all Members of Congress are bound by oath or affirmation to support.

Here is what the 12th amendment provides:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least shall not be an inhabitant of the same state with themselves; they shall name in their ballots the persons voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of 'the Senate; The President of the Senate shall in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

I digress to observe that the 12th amendment says that–

The votes shall then be counted.

Not that they shall be rejected by the Congress.

I continue to read the 12th amendment:

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.

Then comes the provision for election by the House in case nobody has a majority.

Then the same procedure for Vice President:

The person having the greatest number of votes as Vice President, shall be the Vice President-

Provided he has a majority. Then the 12th amendment provides that in case no candidate for Vice President obtains a majority of the electoral votes, the Vice President shall be elected from the two receiving the highest number of votes by the Senate.

What is the truth about this? The man who helped to draw the original article II, Alexander Hamilton, stated in as plain words as can be found in the English language, in Federalist No. 68, that presidential electors had the power under the Constitution to elect as President and Vice President the persons they thought best qualified for the two highest offices in the Nation.

In those days there were no rapid methods of communication or transportation -- no radio, no television, and very little newspaper circulation. There were no railroads or airplanes. People traveled by horseback or stagecoach or boat.

So Alexander Hamilton says that this language was used in order to enable the voters to select a small group of sufficient intelligence and information to make a selection for President and Vice President for them.

Let us see what the latest book on this subject has to say on this point. I refer to Neal R. Peirce's "The People President." I may add that the book was written by a great researcher and scholar, who advocates a constitutional amendment which would abolish our present system of choosing the President and the Vice President. Here is what Mr. Peirce says at 121:

In 1826, Thomas Hart Benton, of Missouri -- incidentally, he was a native of North Carolina –

said that the Founding Fathers had intended electors to be men of superior discernment, virtue, and information, who would select the President according to their own will and without reference to the immediate wishes of the people.

The case from Alabama, Ray v. Blair (343 U.S. 214), does not hold that Congress has a right to control the vote of an elector. It merely holds that a political party in Alabama -- the Democratic Party -- acting under authority conferred upon it by the legislature of Alabama, could exclude as a candidate for presidential elector in its party primary, any man who refused to take a pledge to support the nominees of the party for President and Vice President. That is all the case holds.

Justice Reed, who wrote the opinion for the majority, conceded, in effect, that the Court could not enforce that decision in case a man made the pledge but did not keep it after being chosen elector.

I invite the attention of the Senate to what Justice Reed says on page 230. That part of the opinion of Judge Reed, on page 230, holds that a political party, if permitted by State statute, can exclude a person who wants to run in its primary as a candidate for its elector if he refuses to take the pledge. That is all the case holds.

Let us see what one of the greatest men ever to adorn the Supreme Court declared in the same case. Justice Jackson, in a dissenting opinion in 343 U.S. 232, said: No one faithful to our history–

I read those words again:

No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.

Certainly under that plan no State could control the elector in the performance of his Federal duty, any more than it could a U.S. Senator, who also is chosen by and represents a State.

Let me read another statement on this point -- it is an admission to the same effect made in the Muskie-O'Hara memorandum, page 1:

The office of presidential elector was undeniably visualized by Article II, Section 1 of the Constitution as being one of judgment and independence. The Founding Fathers clearly intended that electors should be chosen for their good judgment and discernment of public men and issues, and that they should elect a President in fact as well as in form.

There has been no change on that point in the Constitution. The only change of article II, section 1, has been made by the 12th amendment, which provides that instead of the man receiving the highest vote becoming President and the man receiving the second highest vote becoming Vice President, the electors shall vote separate ballots, one for President and the other for Vice President. That is the only real change that is made.

The Senator from Maine argues for a new theory for changing or amending the Constitution.

Article V of the Constitution provides that the Constitution may be changed in only one way, and that is by the concurrent action of two-thirds of both Houses of Congress and that of three-fourths of the States. This whole case rests upon two premises, both without foundation: The first is that Congress can take an ethical obligation and convert it into a constitutional obligation. That is ridiculous.

Mr. MUSKIE. Mr. President, will the Senator from North Carolina yield?

Mr. ERVIN. I yield.

Mr. MUSKIE. I have not made that point. I have simply not made that point.

Mr. ERVIN. I am glad to hear the Senator say that.

Mr. MUSKIE. I have not made it in that way.

Mr. ERVIN. The point the Senator makes is that because political parties have developed and because men ordinarily pledge themselves to vote for particular candidates for President and Vice President when they seek appointment to the office of elector, in some way the words of the Constitution, which make it plain that an elector is constitutionally a free agent, have been altered.

Mr. MUSKIE. Mr. President, will the Senator further yield?

Mr. ERVIN. I yield.

Mr. MUSKIE. So long as the Senator is presuming to state my argument, I think I ought to interject long enough to state it in my own words.

What I am saying has nothing to do with a constitutional interpretation or a constitutional revision or amendment. What I am saying is that a presidential elector under the Constitution is a free agent, entitled to express his individual preferences on electoral college day; but that if prior to electoral college day he expresses his preference in a way which makes people justified in relying on what he himself says or the actions he takes, he himself limits the freedom which the Constitution gives him.

Mr. ERVIN. The Senator from Maine says, as I construe his meaning, that an elector is still a free agent; but that if he undertakes to act as a free agent when he casts his vote, he can be denied the right to vote. That is the proposition stated by the Senator from Maine.

Mr. MUSKIE. I would not expect a lawyer to convert my argument into that kind of language. There is such a thing as putting one's self in a position in which people rely on what he says and upon what he has done.

The Senator from North Carolina says that electors should be free of any consequences of their own action. I am saying that when they make it possible for other people to rely on what they say or do, they ought in some way be bound by their own actions.

Mr. ERVIN. The difference between what the Senator from Maine says in his own words and what I am saying in interpreting them is not as great as that between Tweedledum and Tweedledee.

Senator Benton said in 1826, 22 years after the 12th amendment was adopted, that the elector "may give or sell his vote to the adverse candidate, in violation of all the pledges that have been taken of him. The crime is easily committed, for he votes by ballot; detection difficult, because he does not sign it; prevention is impossible, for he cannot be coerced; the injury irreparable, for the vote cannot be vacated; legal punishment is unknown and would be inadequate."

In other words, Senator Benton said that, if a man has no ethical standards and feels no moral obligation, he can cast his electoral vote as he pleases, regardless of any pledges that may have been made by him.

The idea -- which the Senator says he does not entertain -- that the Constitution can be changed by a practice inconsistent with the words of the Constitution or by the lapse of time is emphatically rejected in the Alabama case of Ray against Blair, by Justice Jackson. On page 233 of his dissenting opinion in that case, Justice Jackson stated:

But I do not think powers or discretions granted to federal officials by the federal Constitution can be forfeited by the court for disuse. A political practice which has its origin in custom must rely upon custom for its sanctions.

Here the proposal is that, instead of relying on customs for sanctions, we shall rely upon positive action by the Senate and the House of Representatives, both of which are forbidden to interfere with these matters by the act of 1887, except in very restricted cases.

Mr. BAYH. Mr. President, will the Senator yield?

Mr. ERVIN. I yield.

Mr. BAYH. I should like to return to what the Senator from Maine said, inasmuch as he agrees with the general definition of the power of the elector, but his argument is based on acts taken by the electors which of themselves proscribe the freedom that the elector has.

Inasmuch as the Senator from North Carolina has been so free in quoting Thomas Hart Benton, I think we should look to what Thomas Hart Benton said in connection with the degree to which the electors by precedent had limited themselves. In 1826, Thomas Harl Benton said that the electors have degenerated into mere agents in a case which requires no agency and where the agent must be useless if he is faithful and dangerous if he is not.

Mr. ERVIN. Yes, he said that; and in the same document he said this:

The Founding Fathers had intended electors to be men of "superior discernment, virtue and information," who would select the President "according to their own will" and without reference to the immediate wishes of the people.

The practice alluded to by Senator Benton has not changed the words of the 12th amendment.

Let me cite what the author of a recent treatise on constitutional law, Bernard Swartz, a scholar of liberal views, has to say on this subject in volume 2 of his book entitled "Powers of the President." On page 8, he declares that

The independence of electors still continues as a matter of constitutional law -- regardless of the rarity with which it may, in fact, be asserted.

On page 9, he asserts:

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.

Also in this book, written by Nell R. Peirce, entitled "The People's President," on page 122 appears the statement I read, which Thomas Hart Benton made at the same time, that a man was not bound by any pledges. The author says:

Since Benton's day, some efforts have been made to restrict the elector's independence, but his basic point still holds.

The PRESIDENT pro tempore. The time of the Senator has expired.

Mr. ERVIN. I ask for 15 additional minutes.

Mr. DIRKSEN. I yield 5 minutes to the Senator.

The PRESIDENT pro tempore. The Senator is allowed 5 additional minutes.

Mr. YARBOROUGH. Mr. President, will the Senator yield for a question?

Mr. ERVIN. I have only 5 minutes.

Mr. YARBOROUGH. I shall be brief. Is there any statute in North Carolina that binds the electors to vote for the nominee of the party on whose ballot they are listed?

Mr. ERVIN. There is not.

In 1933, there was great confusion in balloting because we had 13 electoral votes. The State had to print 26 names on every ballot, 13 candidates for electors for each of the two major parties and 13 more names for each third party having candidates. To avoid confusion, the legislature passed a statute which provided for the printing of the names of the candidates for President and Vice President on the ballot and that votes cast for them would be counted as votes for the electors of the parties of those candidates.

The North Carolina Law Review, in interpreting that statute, said this: 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.

Consequently, Dr. Bailey was not bound to vote a party ticket.

Mr. MUSKIE. Mr. President, will the Senator yield?

Mr. ERVIN. I do not yield. I do not have any time.

Mr. DIRKSEN. Mr. President, will the Senator yield?

Mr. ERVIN. I yield.

Mr. DIRKSEN. I yield the Senator from North Carolina 10 additional minutes.

Mr. MUSKIE. Mr. President, will the Senator yield?

Mr. ERVIN. Not at this moment. I take this course simply because the time at my disposal is less than the time I need to state my position.

The press of North Carolina announced, before the electoral college met, that Lloyd W. Bailey made a statement in which he pointed out why he was going to vote for Wallace. He said he was against Johnson, and he decided that Mr. Nixon, on account of certain appointments he had made, would carry on the same policies as Mr. Johnson. Dr. Bailey said this:

I realize that it is perhaps unusual for an Elector not to vote for his party's nominee, but as an Elector it is my duty to place loyalty to my country before loyalty to my political party.

He pointed out that in his district 461/10 percent of the voters voted for Wallace, and that he voted in accordance with the wishes of the majority of his constituents.

Mr. President, I ask unanimous consent that the statement of Dr. Bailey be printed at this point in the RECORD.

There being no objection, the statement was ordered to be printed in the RECORD, as follows:

ROCKY MOUNT, N.C.

December 16, 1968.

As the Republican Elector for the Second Congressional District of North Carolina, unpledged, I have had a very difficult decision to make. Having no interest in politics other than that of a concerned American citizen who believes that our Constitution is the greatest political document yet conceived by man, I certainly find that my position as an Elector is one which cannot be assumed as a mere formality. I realize that it is perhaps unusual for an Elector not to vote for his party's nominee, but as an Elector it is my duty to place loyalty to my country before loyalty to my political party. According to the Federalist Papers, the framers of our Constitution intended that Electors be free to elect even a man who had not been running for office instead of the nominee of the popular vote if evidence indicated that it would be in the national interest.

Mr. Nixon has a mandate to change the course of our Government as evidenced by the combined Nixon and Wallace vote against the present policies of the Johnson Administration. He has already clearly shown to us that we are going to have more of the same thing. Some of the men who have been appointed to high positions on his personal staff are members of the un-American and infamous Council on Foreign Relations. They include Paul W. McCracken, Henry Cabot Lodge, Robert Murphy, and Henry A. Kissinger. This organization, called the Invisible Government by Dan Smoot in his book by this title, is one which seeks to undermine our national sovereignty and merge us with other nations under a world government, perhaps like the United Nations. The goals of the Council on Foreign Relations appear to be uncomfortably close to the goals of the International Communist Conspiracy. Since the 1950's, men who are members of this internationalist organization have managed to have themselves appointed to the highest policy-making positions in our Government, regardless of which party was in office. Strangely, this makes it appear that the same men are running both parties. I strongly recommend that every concerned American read this book, The Invisible Government, for it shows beyond any doubt that our country has been guided by these appointed officials rather than by our elected representatives. It is apparent that we are going to have the same men running our Government in spite of the large vote against their policies. Daniel Moynihan, a national board member of the Americans for Democratic Action, a left-wing Democrat, is another appointee to a high position and it is abundantly clear from his record that he would not want to make any change toward Americanism and constitutional government for our Republic. I sincerely doubt that Mr. Nixon will find any support among his voters for this appointment. The response of the people toward a permanent surtax is already being investigated by the Nixon Administration, Mr. Nixon has endorsed the no-win Johnson foreign policy for Vietnam, and this includes the United States Government supplying more than 80% of the materials for the enemy to use against our own men. He has also asked Earl Warren to remain as Chief Justice of the United States Supreme Court until June. This is unthinkable!

The Electoral College is under fire as being antiquated. However, I wonder how many people stop to think of the fact that if it were not for the Electoral College, the Federal Government would run the elections and would be responsible for counting the votes. Under the present system the state governments manage the elections. Can you imagine how it would be if President Lyndon Johnson were running for re-election and counting his own votes? In our system of government the minority view is supposed to be respected and represented. The Electoral College is one part of the system of checks and balances which guarantees that the minority voice can be heard. Yet, strangely, the very ones who claim to represent minorities are the ones who are seeking to abolish the Electoral College.

In view of these facts, and in view of the fact that Mr. Wallace polled 46.1% of the vote in my district, I find that I cannot support Mr. Nixon until he gives definite evidence that he intends to make the changes which the people are demanding. I do not intend this as an attack upon Mr. Nixon personally, and I sincerely hope that he will lead us up from the depths to which our Republic has descended. Though it may not be the popular thing to do, I humbly take this position with the firm belief that it is my moral obligation to do so.

LLOYD W. BAILEY,

Republican Elector, Second Congressional District of North Carolina.

Mr. ERVIN. I do not defend Dr. Bailey's position. If I had been in his place, I would have felt morally bound, according to the standard of ethics which I happen to entertain, to cast my ballot for the nominees of the party which had chosen me elector. But that is not the question. The question is whether we can throw Dr. Bailey's vote away because he has not done so.

This is one of the rare occasions on which the Washington Post and the New York Times agree with me. When the Washington Post and the New York Times agree with me, I must be right.

Mr. President, I ask unanimous consent to have an editorial published in the New York Times and an editorial published in the Washington Post printed at this point in the RECORD.

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

[From the New York Times, Jan. 6, 1969]

ELECTORAL CHALLENGE

Representative James G. O'Hara and Senator Edward Muskie -- acting with Republican as well as Democratic support -- plan to make an important challenge when Congress counts the electoral votes today. Viewed technically, their action may perhaps be seen as an effort to correct one wrong by committing another. It is, in a large sense however, a challenge to the nation to get on with the business of electoral reform.

The two Democrats plan to challenge the electoral vote cast in North Carolina by Dr. Lloyd W. Bailey, who was elected on a slate of electors committed to Richard Nixon, then became disenchanted with Mr. Nixon's initial appointments and switched to vote for George C. Wallace.

Dr. Bailey chose to exercise the discretion that the Constitution gives Presidential electors. Yet he was wrong in the sense that his action violated party pledges and disfranchised those who voted for him.

Representative O'Hara and Senator Muskie will doubtless make this argument in their challenge.

Congress is empowered to count electoral votes, and the power to count implies the power not to count. In the elections of 1820 and 1832 several electoral ballots were rejected by Congress on technical grounds. In 1880 the ballots of Georgia's electors were not counted because they had been cast on the wrong day. In 1872 Horace Greeley, the Democratic nominee, died after the popular voting but before the Electoral College convened, and Congress refused to count electoral ballots cast for him on the ground they had been cast for a deceased candidate. A Congressional commission set up after the disputed Hayes-Tilden election chose between several competing slates of electors.

All of this gives some precedent to the move expected today. Never before, however, has Congress refused to count the ballot of an elector who simply disregarded his pledge and voted his personal whim. This electoral discretion, enshrined in the Constitution, has formed the basis of unpledged elector and third-party movements. The two challengers would like to deny third-party candidates the leverage that Wallace planned to exercise by promising his electoral votes, in case of a deadlock, to whichever major cadidate agreed to adopt certain of his policies.

The challenge itself raises constitutional issues. Certainly any attempt to give the defecting elector's ballot to Mr. Nixon, as Representative O'Hara and Senator Muskie have indicated they plan, would raise grave doubts. Who would cast this ballot? How?

In the sense that the challenge runs contrary to the Constitution, it too can be considered wrong. While two wrongs of this sort cannot make a right, the challenge nonetheless should serve to alert the nation once again to the dangers inherent in the present Electoral College system for choosing Presidents and Vice Presidents. And, by their own admission, this is the challengers' main purpose. Their action should remind a nation, which still seems to need reminding, that fundamental electoral reform is long overdue.

[From the Washington (D.C.) Post, Jan. 4, 1969]

MOMENTOUS ELECTORAL CHALLENGE

Sen. Edmund S. Muskie and Rep. James G. O'Hara are rendering a national service by challenging the vote of an unfaithful elector from North Carolina. That elector, Dr. Lloyd W. Bailey, was chosen as a Republican on the assumption that he would cast his vote for Richard Nixon, but he has cast it in fact for George Wallace. Messrs. Muskie and O'Hara will ask the Senate and House, when the electoral votes are counted on Monday, to "vacate" the Wallace vote and to count all the electoral votes from North Carolina for Mr. Nixon.

Justice, common sense and democratic principle run strongly in the direction that Sen. Muskie and Rep. O'Hara have taken. Regardless of what the Constitution says, the people have come to expect presidential electors to vote for the candidate to whom they are pledged, whether by law, party rules or custom. The casting of an electoral vote in defiance of such obligation is indeed a betrayal of trust which should not be tolerated.

It is a very different question, however, as to whether Congress has a right to alter such a vote for the purpose of thwarting the betrayal and making the will of the people prevail in the so-called electoral college. One has to start with the fact that the Founding Fathers did originally intend that the electors should use their judgment in the selection of the President, and the system has not been changed by constitutional amendment. Usage has changed it so that the electors customarily function as mere agents to carry out the will of the majority within their state. In six instances, however, electors have voted in defiance of their instructions and no means has been found to date to prevent them from doing so.

Messrs. Muskie and O'Hara now think that the Electoral Count Law of 1887 can be used for this purpose. That measure permits one Senator and one Representative to challenge electoral votes as they are counted. Since Dr. Bailey's vote will be challenged in both houses, the two bodies will have to decide whether, under the law, it has been "regularly given" by an elector "whose appointment has been lawfully certified."

In support of their argument the two congressional leaders note that North Carolina law provides for the nomination of elector candidates by party convention and deems them to have been appointed to represent the state in the electoral process if the presidential nominees of the same party receive a plurality of the votes cast for President and Vice President. But this would seem to mean that Dr. Bailey was undoubtedly elected in North Carolina. The only question at issue is whether Congress can force him to vote as the people who elected him thought he would.

There is little indication that Congress had any such intent in passing the 1887 act. Rather, its intent seemed to run in the other direction -- to prevent Congress from setting aside any vote regularly given by an elector certified by the state. This act was the congressional response to the Hayes-Tilden scandal of 1876. Congress had disposed of that contest by setting up a congressional commission which gave all the disputed votes to Hayes, and Congress in 1887 wanted to make sure that this would never happen again. The law which Messrs. Muskie and O'Hara are trying to use was primarily intended to keep future disputes over electoral votes within the states. There is nothing in the history of the act that suggests any intent to let Congress change a vote by an elector because he had disregarded his supporters' wishes.

We think it is highly desirable, nevertheless, to test the issue. If Congress should decide that it can throw out electoral votes or recast them so as to conform to the majority wishes within a state, the consequences would be far-reaching. It would mean, for example, that the tactic which George Wallace has intended to use, of shifting electoral votes for him to another candidate who might lack an electoral majority, thus preventing a choice of the President by the House of Representatives, would no longer be available to third-party aspirants.

The sponsors of this "unfaithful-elector" challenge, however, make no pretense that acceptance of their view by Congress would eliminate the need for more basic reforms in the electoral system by constitutional amendment. Whatever the outcome, the need for a new electoral system is likely to be accentuated. For even if Congress asserted the right to overrule an unfaithful elector this time, it might not choose to do so in the future. A new system completely eliminating electors who may thwart the will of the people is the really urgent need.

Mr. ERVIN. We have heard about the times presidential electors have repudiated their pledges to their party's nominees. I wish every Member of the Senate could read this book, "The People's President," the latest publication on this subject, by a man who advocates an amendment to change the system for electing Presidents and Vice Presidents. He points out that in 1792 six Virginia electors shifted their votes from Adams to Clinton; that in 1796 a Pennsylvania Federalist elector voted for Jefferson; that in the same year former Senator William Plumer, of New Hampshire, cast his vote for Adams rather than for Monroe to whom he was pledged; that in 1824, North Carolina's 15 presidential electors went back on their pledge; and that in 1824, seven New York electors pledged to Clay went back on their pledges.

The book reveals that there have been several other incidents of this character in recent years and that in all of these cases the electoral votes as cast were counted.

I wish to read another statement from this same book showing first what the Court decided in the Alabama case. It did not decide that a State or a political party or any other power on earth could control the actual casting of an elector's vote:

Even if a loyalty pledge were unenforceable, the Court said it would not follow that a party pledge as a requisite for running in a primary was unconstitutional, since any person not wishing to take the oath could run independently of party.

Incidentally, the Court did not decide anything except that a person could be excluded from running for elector in a party primary if he refused to pledge himself to support the party's nominees when a State statute authorized the party to require him to make such pledge.

This interpretation is rightly put upon Ray v. Blair (343 U.S. 214) by Mr. Peirce on page 126 of his book entitled the "People's President." I read what he says:

But the Court did not rule on the constitutionality of state laws that require electors to vote for their party's candidates, or indicate whether elector pledges, even if given, could be enforced. The preponderance of legal opinion seems to be that statutes binding electors, or pledges that they may give, are unenforceable. "If an elector chooses to incur party and community wrath by violating his trust and voting for some one other than his party's candidate, it is doubtful if there is any practical remedy," in the view of James C. Kirby, Jr., an expert on electoral college law. Once the elector is appointed, Kirby points out, "he is to vote. Legal proceedings which extended beyond the date when the electors must meet and vote would be of no avail. If mandamus were issued and he disobeyed the order, no one could change his vote or cast it differently. If he were enjoined from voting for anyone else, he could still abstain and deprive the candidate of his electoral vote."

Mr. President, I wish to raise one additional point. The Senate is forbidden by the very statute under which this objection is filed to reject Dr. Bailey's vote. If I construe the argument of the distinguished Senator from Maine right, the word "regularly" as used in title 3, section 15, can be made to mean anything. I challenge that interpretation. The statute speaks of votes being regularly given by an elector. By this it means simply that that vote must be given or cast in the manner prescribed by the Constitution. Section 8 of title 3, which is a part of the statute invoked by the Senator from Maine, provides:

Manner of voting: The elector shall vote for President and Vice President, respectively, in the manner directed by the Constitution.

I would like to point out that these electors met on the day fixed by the Constitution; they voted two ballots as required by the Constitution, one for President and one for Vice President. Dr. Bailey voted for George Wallace for President and on a separate ballot voted for Gen. Curtis LeMay for Vice President. He has cast his vote regularly in the manner provided by the Constitution. This very statute so provides. I invite the attention of Senators to its language because it puts an end to this objection if the Senate is going to abide by the law which the Senate and the House of Representatives passed and which the President signed.

The ACTING PRESIDENT pro tempore. The time of the Senator has expired.

Mr. ERVIN. Mr. President, I ask unanimous consent that I may proceed for 2 additional minutes.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. The Senator from North Carolina is recognized for an additional 2 minutes.

Mr. ERVIN. Mr. President, section 15 of title 3 of the United States Code provides:

No electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected.

Mr. BAYH. Mr. President, will the Senator yield?

Mr. ERVIN. No, I have only a few minutes remaining.

Mr. BAYH. It might be wise to read the rest of it.

Mr. ERVIN. The rest of it has nothing to do with this.

Mr. BAYH. With all due respect I think it is the critical question.

Mr. ERVIN. It has nothing to do with it. I have read the critical clause. The three conditions of the clause which forbids the Congress to reject Dr. Bailey's vote exist.

First. His vote was regularly given in the manner prescribed by the Constitution.

Second. More than 6 days before the meeting of the electors the executive of North Carolina, Gov. Dan K. Moore, certified as required by section 6 of title 3 of the United States Code that Dr. Bailey and his fellow electors had been duly appointed in accordance with the laws of North Carolina.

Third. The return of their votes made by Dr. Bailey and his fellow electors was the only return received.

In other words, Dr. Bailey's vote was cast in the manner provided by the Constitution. That is, regularly. It was cast by one certified to be a duly chosen elector for the State, by Governor Moore, the Governor of North Carolina, then it was reported to Congress in the only return received. Hence, under this act, Congress cannot reject Dr. Bailey's vote without violating both the Constitution and the statute -- Title 3, section 15 -- implementing it.

Mr. President, I ask unanimous consent to have printed in the RECORD the certificate of Gov. Dan K. Moore.

There being no objection, the certificate was ordered to be printed in the RECORD, as follows:

CERTIFICATE

To the Administrator of General Services: The undersigned, Dan K. Moore, Governor of North Carolina, hereby certifies, as required by United States Code, Title 3, Sections 6, 9, and 11, that the following named persons, electors for the Republican Party, were ascertained to be duly elected as Presidential Electors for the State of North Carolina, and that by the canvass and ascertainment under the laws of the State of North Carolina each of said persons hereinafter listed received six hundred twenty-seven thousand, one hundred ninety-two (627,192) votes, which vote has been duly ascertained by the State Board of Elections of the State of North Carolina and certified by said Board to the Secretary of State of North Carolina, and duly certified by the Secretary of State of North Carolina to the undersigned, in conformity with the laws of said State:

ELECTOR AND CONGRESSIONAL DISTRICT

A. W. (Billy) Houtz, First.

Dr. Lloyd Bailey, Second.

Sam E. Godwin, Third.

Russell N. Barringer, Sr., Fourth.

H. F. Stanley, Fifth.

James Rodgers, Sixth.

J. T. Clemons, Seventh.

W. S. Bogle, Eighth.

R. Powell Majors, Ninth.

Edward H. Smith, Tenth.

R. Curtis Ratciiff, Eleventh.

Electors at large H. J. Liverman.

Mrs. Dorothy Presser Furr.

And each of the following named persons, electors for the American Party, received four hundred ninety-six thousand, one hundred eighty-eight (496,188) votes, which vote has been duly ascertained by the State Board of Elections of the State of North Carolina and certified by said Board to the Secretary of State of North Carolina, and duly certified by the Secretary of State of North Carolina to the undersigned, in conformity with the laws of said State:

ELECTOR AND CONGRESSIONAL DISTRICT

Byrd Hinshaw, First.

James Atwood Holmes, Second.

Dr. Donnie H. Jones, Jr., Third.

Brandon Bruner York, Fourth.

Bob Cook Miller, Fifth.

William E. DeLotch, Sixth.

J. Cardon Meshaw, Seventh.

Mrs. George C. P. Gilliam, Eighth.

Lowell C. Terry, Jr., Ninth.

Charles Boyce Falls, Tenth.

Dr. Henry T. Gunter, Eleventh.

Electors at Large Charles R. Vance, Jr.

Jefferson Gordon Dildy.

And each of the following named persons, electors for the Democratic Party, received four hundred sixty-four thousand, one hundred thirteen (464,113) votes, which vote has been duly ascertained by the State Board of Elections of the State of North Carolina and certified by said Board to the Secretary of State of North Carolina, and duly certified by the Secretary of State of North Carolina to the undersigned, in conformity with the laws of said State:

ELECTORS AND CONGRESSIONAL DISTRICTS

Miss Ann Reid, First.

H. Maynard Hicks, Second.

Mrs. J. V. Whitfield, Third.

Brooks W. Poole, Fourth.

R. J. Harris, Fifth.

William C. Stokes, Sixth.

Robert M. Kerman, Seventh.

Hugh A. Lee, Eighth.

Gordon Rhodes, Ninth.

James A. Dugger, Tenth.

Frank Watson, Eleventh.

Electors at Large James T. Hedrick.

Jonathan H. Woody.

In witness whereof, the undersigned, Dan K. Moore, Governor of North Carolina, has hereunto set his hand and caused to be affixed the Great Seal of the State of North Carolina, on this the 2nd day of December, 1968.

DAN MOORE, Governor.

Mr. ERVIN. Mr. President, I do not agree with the ethics of the elector, but I think it would be more unethical for Congress to usurp power it does not possess under the statute under which it is acting. And even more unethical for Congress to usurp power denied it by the 12th amendment.

The ACTING PRESIDENT pro tempore. The time of the Senator has expired. Who yields time?

Mr. DIRKSEN. Mr. President, I yield 5 minutes to the Senator from Florida.

Mr. HOLLAND. I thank the Senator for yielding. I hope the Senator from Maine will follow my remarks. First, I commend him. I think it is a good thing that this question has been raised, but I think the fact that it is being raised simply points out the need for constitutional amendment.

Whether it be by constitutional amendment favored by the Senator from Indiana, or the one favored by the Senator from North Carolina and myself, or the one favored by the Senator from South Dakota is beside the question.

The Senator from Maine has made it very clear that we need to change this provision in our Constitution. Briefly, he admits that under the Constitution the electors are free agents. I note that the Senator shakes his head in affirmation of that point.

Mr. MUSKIE. May I say–

Mr. HOLLAND. I have only 5 minutes.

The Senator admits that six times heretofore, Congress, by canvassing and accepting votes cast in the same way that Dr. Bailey's votes were cast, has set a precedent for recognizing the fact that such votes can be cast, and the only difference between those situations and this situation is that this is the first time a direct proposal has been made against the receipt of the votes.

Mr. MUSKIE. May I say on my time–

Mr. HOLLAND. Not right now. I wish to finish my statement. The Senator did not yield to me. If the Senator will permit me to finish my remarks I will be glad to yield to him on his time.

Mr. President, the third matter I call attention to is the fact that while perhaps every Senator at one time or another has been complaining about Supreme Court encroachment on the Constitution and its making new law by judicial fiat, we are now being asked to do the very same thing by the procedure involved in this motion.

The next thing I wish to mention is that by one statement he made the Senator made it clear, or at least clear to me, that such a precedent as he proposes to set up affects only this one vote this time. He referred to the fact that one of the candidates for President this year made repeated statements indicating that he proposed to use his electoral votes in such a way as to avoid the election being thrown into the House of Representatives. Of course, that is a fact. We all heard Governor Wallace make that statement many times.

I am calling attention to the fact that the logical meaning of our establishing this precedent would mean that if a third-party candidate succeeded in getting enough votes to throw the election either way, because neither of the other two candidates received sufficient votes to have a majority of the electoral votes, and attempted to do so by asking his electors to vote one way or the other, the same procedure we are asked to approve here would apply and then Congress could throw this matter into the House of Representatives for the election of the President by simply vitiating votes cast by electors for the third-party candidate who instead voted for one of the candidates of the major parties.

I do not believe there is any doubt about it. I hope the Senator will think it through. That is exactly what is being proposed, because if this is good as to one elector, it is good as to more than one elector. What he is doing, in effect, here, is trying to set a precedent which, in effect, will draw the teeth of any third-party movement insofar as trading electoral votes prior to the action of the electoral college is concerned.

Mr. President, so far as the Senator from Florida is concerned, he agrees completely that we have need for change. He himself has suggested something comparable to the Lodge-Gossett amendment during the past several Congresses. I have already prepared an amendment which I hope to submit on the first day bills are submitted.

But, I do not favor setting a precedent as dangerous as this. I do not want to favor doing something which I regard as unconstitutional.

The ACTING PRESIDENT pro tempore. The time of the Senator from Florida has expired.

Mr. HOLLAND. I thank the Chair for ruling. I thank the Senator from Illinois (Mr. DIRKSEN) for yielding to me.

The ACTING PRESIDENT pro tempore. Who yields time?

Mr. ALLEN. Mr. President.

Mr. DIRKSEN. Mr. President, I yield 10 minutes to the distinguished Senator from Alabama.

The ACTING PRESIDENT pro tempore. The Senator from Alabama is recognized for 10 minutes.

Mr. ALLEN. Mr. President, I thank the Senator from Illinois.

Mr. President, I rise with some degree of hesitancy to take the floor of the Senate so soon after having been sworn in on last Friday, because I subscribe to the policy and the custom which provides that a new Senator shall work hard, shall study long, and that while he may frequently be seen -- and he should be seen at his desk and in committee sessions -- he should seldom be heard on the floor of the Senate.

However, the name of a former Governor of my State, whom I greatly admire and who made a gallant race for the Presidency, receiving some 10 million votes without any machine, without any local ticket, and without adequate funds, has been raised on this floor.

Let me hasten to say, Mr. President, that whether Governor Wallace receives 45 or 46 electoral votes in the electoral college and in the canvass by the joint Houses, that will be of small consequence.

The question is the same, no matter who is losing the vote: I would be just as strongly against the objection that is to be filed if an effort were being made to take the vote away from the distinguished Vice President of this country and the distinguished junior Senator from Maine.

A great constitutional question, however, is involved. I agree with the distinguished junior Senator from Maine on one point, and on one point only, and that is that the matter under discussion and any other matter under discussion in the Senate should be subjected to lengthy debate. For that reason, I was glad when the junior Senator from Maine suggested that this informal session of the Senate be held so that arguments could be made that would not be limited by the 2-hour rule which will prevail this afternoon. I hope that the distinguished junior Senator from Maine will adopt the same view later in the session when, possibly, efforts will be made to limit the time for debate rather than to extend the time for debate, which he now stands for.

Mr. President, if there was ever a case of tilting at windmills, that is what we have in this objection which is to be filed this afternoon.

This is the wrong forum to consider this question. If a constitutional question is involved, it should be considered by the Supreme Court. I do not like the thought of the Senate's taking over the job of the Supreme Court. I do not like the idea of it interpreting the Constitution. I want to see Congress legislate; I want to see the Supreme Court not legislate but interpret.

I might say in passing that I believe I would come nearer resting a constitutional question -- if that were permitted -- in the hands of the Senate rather than in the hands of the Supreme Court as presently constituted. But that is not what the Constitution provides.

Thus, we are in the wrong forum. An effort is being made to amend the Constitution by usage and by custom.

Shorn of the legal technicalities and the legal verbiage involved, that is exactly what the junior Senator from Maine is trying to do.

Many points have been made that I had in mind making in my brief remarks. One suggestion, I believe, has not been covered. The junior Senator from Maine would seek to make robots of electors -- rubber stamps who have no discretion of their own.

Mr. President, I should like to ask two questions of the junior Senator from Maine and hope that he will answer them during his rebuttal time.

Question No. 1. Suppose there is a great change in the President-elect or the person who receives the greatest number of votes, apparently, in the general election between the day of the general election and the time the electoral college meets, and it is found that the assumed President-elect is a crook, an embezzler, a disloyal American citizen, a Communist, if you will, Mr. President – would the junior Senator from Maine contend that the electors would have to go ahead and vote for such a man for President of the United States?

Question No. 2. In 1872, Horace Greeley was the nominee of the Democratic Party for the office of President. He was alive on election day but he died on November 29, 1872, before the electoral college met. Had Horace Greeley been successful in the general election of 1872 and apparently been elected President of the United States, would the Senator from Maine contend that when the electoral college met, the electors pledged to Mr. Greeley, on account of the fact that they were electors of a party, would have to vote for a dead man for the office of President of the United States?

Certainly the electors have discretion. They have discretion to act as free agents and any effort to change that rule by the House or Senate certainly would violate the constitutional provisions with regard to electors.

Mr. President, I hope that we will go ahead and canvass the returns of the electoral votes of the various States this afternoon. Mr. Nixon will be declared to be the President of the United States, and Mr. AGNEW will be declared to be Vice President of the United States.

I hope that if an objection is made -- if, in fact, it is to be made, and I hope it will not be made, I hope that we will cease tilting at windmills -- the Senate this afternoon will promptly reject that objection.

Certainly the attitude of the distinguished Senator from North Carolina should be persuasive in this matter. He does not want to see the electors of the sovereign State of North Carolina and the people of North Carolina deprived of the number of electoral votes to which the State of North Carolina is entitled. And that is what the effort of the objectors would do.

I hope, Mr. President, that the Senate will vote against the objection, if it does come up for a vote.

I appreciate the time and attention of the Senate. I do not apologize, but I express my sincere appreciation for being allowed to speak on this subject, which is so vital to the people of Alabama and the Nation.

The ACTING PRESIDENT pro tempore. The time of the Senator has expired.

Mr. DIRKSEN. Mr. President, a parliamentary inquiry.

The ACTING PRESIDENT pro tempore. The Senator will state it.

Mr. DIRKSEN. As I understand, we will proceed to the House Chamber in time for the opening of the session at 1 o'clock. Is that correct?

The ACTING PRESIDENT pro tempore. The Senator is correct.

Mr. DIRKSEN. At that time they will open the electoral votes, tellers will be appointed, and the President pro tempore or the Vice President will preside. Is that correct?

The ACTING PRESIDENT pro tempore. The President pro tempore will preside. Tellers have been designated.

Mr. DIRKSEN. They will undertake then to count the electoral votes, alphabetically, by States, as I recall.

The ACTING PRESIDENT pro tempore. The Senator is correct.

Mr. DIRKSEN. I assume that when they get to North Carolina and the vote is announced, there will then be objection.

The ACTING PRESIDENT pro tempore. If objection were to be made, that would be the appropriate time to make the objection.

Mr. DIRKSEN. Mr. President, if objection is not made, we have been wasting a precious lot of time, and I could be dictating mail or seeing constituents.

But, Mr. President, assuming the objection is made, it is at that point, I take it, that something has to be said as to where the joint body proceeds from there and hears the something that is to be said.

The ACTING PRESIDENT pro tempore. The Presiding Officer will then receive the objection and announce that the separate bodies will return to their respective Chambers and debate the question, under the statute.

Mr. DIRKSEN. The Senate will then repair to its own sacred Chamber to further consider this matter; and I presume the first order of business will be the entertainment of a unanimous consent request for a modification of the existing law with respect to a further consideration of this matter.

The ACTING PRESIDENT pro tempore. That would be up to the respective Members of the Senate. It would be in order to make such

Mr. DIRKSEN. Mr. President, I should watch my language. It would be in order, then, to submit a unanimous consent request?

The ACTING PRESIDENT pro tempore. It would be in order to submit such a request.

Mr. DIRKSEN. Now, that request could be submitted in one form or another. One form would be to ask consent to waive the provisions of the statute and take the 2-hour period and slice it in half and put it under the control of the majority and minority leaders, without any further provision or apportionment of the time that is in the consent request.

The ACTING PRESIDENT pro tempore. Such a request could be submitted and would be in order at that time.

Mr. DIRKSEN. Or a request could be made to limit the debate to 2 hours, notwithstanding the statute, and also apportion the time, but place a limitation of 5 minutes on each Senator who wishes to speak.

The ACTING PRESIDENT pro tempore. That is the present statutory provision.

Mr. DIRKSEN. Well, I will pursue it no further, because for the moment, then, it is in the laps of the gods, including my distinguished friend from Maine and the majority leader; but I think that is enough for the clarification of the Senate as to what will happen this afternoon.

The ACTING PRESIDENT pro tempore. Do Senators desire to yield further time?

Mr. DIRKSEN. Yes. I yield 5 minutes to the distinguished Senator from South Carolina (Mr. THURMOND).

The ACTING PRESIDENT pro tempore. The Senator has 6 minutes remaining.

Mr. DIRKSEN. I give the 6 minutes to the Senator from South Carolina.

The ACTING PRESIDENT pro tempore. The Senator from South Carolina is recognized for 6 minutes.

Mr. THURMOND. Mr. President, I supported and voted for Richard Nixon for President of the United States. I want to say, however, that, in my judgment, under the Constitution an elector has the right to vote for whomever he pleases in the electoral college, once he has been selected as a duly qualified elector.

Down through history this precedent has been followed. Our method of choosing a President is unique in the world. Originally, if I conceive the purpose of those who wrote the Constitution, the idea was to select electors who would be free to look around over the country and select the best man for President. This conception was followed, as I construe history, up until parties came into being. Once parties came into being, it changed the concept, and people voted more for the President than they did for the elector.

With reference to the case in North Carolina, where a Republican elector voted for Wallace instead of Nixon, in my judgment he had the legal right to do so, although I think he had a moral obligation to vote for Mr. Nixon.

In 1948, when the Senator from South Carolina ran for President, one elector from the State of Tennessee who ran on the Democratic ticket voted for the States rights Democratic nominee.

However, I understand that elector told the people while he was running that he was going to vote that way. The people were aware of his intention. That is a different situation from the elector in North Carolina, as I understand the facts; but in both cases the electors had the power to exercise discretion and vote as they chose.

As a legal and constitutional question, there is no doubt in my mind, unless there is a law that compels an elector to vote a certain way, that he is free to vote as he pleases. Whether we like it or not, that is the law, that is the Constitution. It can be changed, but only by constitutional amendment. Until it is changed, an elector is free to vote his convictions and for whom he pleases.

I repeat, if a citizen runs for elector with an announcement that he is supporting a certain candidate, I feel he has a moral obligation to support such candidate. On the other hand, he is not obligated, legally or constitutionally, to do so, unless a State has a statute that compels him to do so.

The Constitution provides, in article II and the 12th amendment, how the President shall be elected; and there is no prohibition upon an elector voting for any candidate he pleases for President of the United States.

I personally feel that an elector should vote for the ticket upon which he has been elected, unless some information appears that would drastically cause him to change his mind. But he is free to change his mind, I repeat, and I challenge those who are raising the objection today to point out any constitutional or statutory authority to the contrary.

Under the reasoning set out above, I feel the vote of the elector from North Carolina should be sustained as cast.

The PRESIDENT pro tempore (Mr. RUSSELL in the chair). The time of the Senator from South Carolina has expired. The majority leader has the remainder of the time.

Mr. MANSFIELD. Mr. President, I yield back the remainder of the time, and I suggest the absence of a quorum.

The PRESIDENT pro tempore. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. MANSFIELD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDENT pro tempore. Without objection, it is so ordered.

JOINT SESSION OF THE TWO HOUSES -- RECESS

Mr. MANSFIELD. Mr. President, in consonance with the earlier announcement made by the joint leadership, and in accordance with the previous order, I ask unanimous consent that the Senate now proceed in a body to the Hall of the House of Representatives for the purpose of counting the electoral votes.

The PRESIDENT pro tempore. Without objection, it is so ordered. The Senate will stand in recess subject to the call of the Chair.

Pursuant to the previous order, at 12 o'clock and 45 minutes, the Senate stood in recess, subject to the call of the Chair, for the purpose of attending a joint session for the count of electoral votes.