SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCPROPOSALS FOR ELECTORAL COLLEGE REFORM
THURSDAY, SEPTEMBER 4, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 10:05 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Bob Inglis, Ed Bryant, Bob Barr, Robert C. Scott and John Conyers, Jr.
Staff present: Kathryn Lehman, chief counsel; John Ladd, counsel; Keri Harrison, counsel; Robert J. Corry, counsel; Brett Shogren, staff assistant; and Brian Woolfolk, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADAY
Mr. CANADY. The subcommittee will be in order.
Good morning. Every 4 years the American people go to their local voting booths to cast their vote for the man or woman they believe should be our President. What many may not understand, however, is when they do so, they are not actually casting their vote for President, but rather for a group of electors pledged to vote for a particular ticket. It is not until December, when the electors chosen by the people in the November general election cast their votes, that the President and Vice President are actually chosen.
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Our founders spent a great deal of time and consideration determining who should select the person to be our Nation's chief executive and how they should be chosen. In the end, their solution, the Electoral College, was a compromise between those who favored the direct election of the President by the people and those who would have the Congress elect the President. There have been more constitutional amendments introduced to reform the Electoral College than have been offered on any other topic.
There are indeed potential problems with the current manner in which we elect our President. It is possible that the person who actually wins the electoral vote may receive fewer popular votes than his opponent. It is also possible that due to a strong third party candidate, no candidate will receive a majority of the electoral votes, and the election of the President would be carried out by the House of Representatives.
In practice, however, the current system seems to have served the Nation fairly well. In most every election since our founding, the candidate receiving the most votes from the American people also received the majority of electoral votes and was elected. Since the adoption of the twelfth amendment in 1804, we have had one election sent to the House of Representatives. Many suggest the very fact the system has generally seemed to work suggests we should not tamper with it even though the potential for a problem exists. Others argue that the Electoral College is essential in preserving the principles of federalism embedded in our Constitution.
When this issue has surfaced in the past it has often been prior to a Presidential election in which there was great concern that the process might break down, or it was immediately after an election which was decided by a narrow margin. Evaluating the constitutional process by which we choose our President is an endeavor that requires a great deal of thought and care and is not best handled in a heated political atmosphere of a Presidential election. I hope today's hearing serve as a useful vehicle to hear arguments from the various sides of the issue in an environment removed from such an atmosphere.
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Today we will hear testimony from a number of distinguished witnesses on the need for reform of the electoral college, focusing on House Joint Resolution 28 and House Joint Resolution 43, proposals offered respectively by Representatives LaHood and Campbell. Both proposals would abolish the Electoral College and provide for the direct popular election of the President and Vice President. I look forward to hearing from all of our witnesses here today.
[The information to follows:]
INSERT OFFSET RING FOLIOS 1 TO 6 HERE
On our first panel this morning, we will hear from Representative Ray LaHood. Congressman LaHood has represented's Illinois 15th District since 1995 and serves on House Committees on Agriculture, Transportation and Infrastructure, and Veterans Affairs. He is also the author of House Joint Resolution 28, as I indicated, one of the bills the subcommittee will be discussing today.
We are also pleased to welcome today delegate Robert Underwood, who represents the territory of Guam. Representative Underwood, we thank you for coming today.
I look forward to hearing both of your comments concerning reform of the Electoral College.
Mr. CANADY. Let me recognize Mr. Scott because I have omitted to do so. I am sorry.
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Mr. SCOTT. Thank you, Mr. Chairman. Who is it that talked about being a potted plant?
Mr. CANADY. I feel like a potted plant myself today.
Mr. SCOTT. Since the passage of the twelfth amendment of the United States Constitution in 1804, there have been hundreds of attempts to radically change the electoral college system of electing the President and Vice President. Other than amending the Constitution in 1961 to give the District of Columbia three electoral votes, there have been no significant changes to the electoral college system despite the introduction of hundreds of constitutional amendments. There are some very good reasons why the electoral college system has not been changed and should not be changed, and this reasoning is as sound today as ever.
As I have said before, protecting the Constitution is among our most important responsibilities. It should not be taken lightly. The Constitution should only be amended as a last resort to resolve a pressing national dilemma. The idea of amending the Constitution and abolishing or reforming the electoral college has been illegitimately considered in many previous sessions of Congress. A careful review of the record reveals that proposals before us today are not much different from proposals that have been considered and rejected by previous Congresses for many good reasons.
As an initial consideration we must ask what is the pressing national dilemma that can only be cured by changing the Constitution? The central argument of direct election proponents is that without direct elections, we run the risk of electing Presidents that, despite getting more popular votes than their opponents, lose the election because their opponent wins more electoral votes. I am not convinced that this minority President concerned is all the problem it is made out to be. First, our national government is a federalist system composed of States and the District of Columbia. With our current system candidates seeking national office must address the needs of these States consistent with the manner in which our government is organized. Any change in this system would lead to significant decline in our federalism and in the sovereignty of the States.
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In addition, the proponents of direct elections assert that the winner-take-all method of voting unfairly reflects the support a candidate has in losing any given State. They point out the mathematical curiosity that a person can win the majority of their electoral votes, but lose in the popular votes. That mathematical curiosity is not just in the electoral system, we have it in sports. One must win the majority of their contests or sets in tennis or games in the World Series. The World Series is not determined by who wins the most cumulative runs in the series, but who wins the most games. There is a mathematical curiosity that in the last five World Series, the team that scored the most runs lost the World Series three out of the last five World Series. No one is upset about that because we established the rules, and winning games was how you would win series. And with the Electoral College, winning States is how you win the national election.
To be President one has to be the voters' top choice in the number of States which equals an electoral college majority. This ensures balanced and broad support. Any other system would, in essence, reward a lopsided winner in a few popular States at the expense of a national candidate that wins the most States. A candidate just cannot win a landslide in their home State and run away with the votes in their own geographical region; they have to do well outside of their part of the country. And we should not abolish the electoral college in order to reward regional candidates who have little broad-based support.
Moreover the elimination of the Electoral College in favor of the direct elections could lead to many other concerns that pale in consideration to other concerns that we have with the present system. For example, how would campaigns differ? With the Electoral College, the candidates spend their last few weeks in the so-called battleground States where converting a few votes could make the difference. With the direct election they may well abandon those States and focus simply on turnout in their own home region. Are we more or less likely to get an issue-oriented campaign with one national election rather than 51 different elections, where people have to take specific positions? For example, in the campaign in Kansas, you have to take specific positions in farming; in Florida, specific positions dealing with the elderly. In California, you have to address the environment; urban affairs in New York and the District of Columbia.
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You cannot get away with just running a sleaze and personality campaign, you have to address issues on a State-by-State basis. And therefore, what different kind of President would we likely to be electing as a result of such election?
Mr. Chairman, both the constitutional amendments before the committee today include runoff triggers. If a candidate does not receive 40 or 50 percent of the vote, then a runoff would be held amongst the top two candidates. This would have interesting situations because runoffs can cause confusion, delaying candidates from taking office, or change the final outcome of election.
For example, in 1992, President Clinton did not receive over 50 percent of the popular vote. If H.J. Res. 53 had been the law in 1992, a runoff election would have been triggered between Bill Clinton and George Bush. There is no way to tell who may have been elected President if this amendment had been in effect. But there is one thing for sure. It is likely that fewer voters would have come out a second time in an election held without the concurrent election of Governors, Senators, State representatives and other local elected officials. We have a difficult time enough getting people registered to vote and having them vote. What would happen because a candidate gets 49 percent of the vote and another election must be held? In fact, what happens if a candidate gets 49.99 percent? You might have to have a recount to determine whether it is 50 percent or 49.9 percent, notwithstanding that the next candidate only had 25 percent of the vote.
Furthermore, what power would a coalition of local candidates with a narrow legislative agenda wield in a situation where they can deny a candidate an absolute majority?
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I am also concerned about the logistics in direct elections. Recounts and voter fraud investigations would be almost impossible in a national election where every vote and every ballot box would have to be opened to have a recount. Now, an election candidate who loses, say, Virginia by one vote and would have a recount and changes the outcome of the election would only affect Virginia's 13 electoral votes. Any direct election recount or fraud allegation would have much greater relevancy because its effects would not be just isolated to Virginia and its 13 votes. Instead, the entire Nation would be affected.
Additionally, how would we account for the differences in various States' election laws if every vote in every State counts against every vote in every other State? It would not seem fair, for example, if State A had same-day registration, and the State B residents have to register a month before the election. How would these issues be reconciled?
It is these possibilities that should all give us pause in changing or abolishing the Electoral College. I look forward to learning more about today's issues from the various witnesses, and I appreciate your time and indulgence. Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott.
[The prepared statement of Mr. Scott follows:]
PREPARED STATEMENT OF ROBERT C. ''BOBBY'' SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Page 8 PREV PAGE TOP OF DOC Thank you, Mr. Chairman.
Since the passage of the twelfth amendment to the U.S. Constitution in 1804, there have been hundreds of attempts to radically change the Electoral College system of electing the President and the Vice President. Other than amending the Constitution in 1961 to give the District of Columbia three electoral votes, there have been no significant changes to the electoral college system despite the introduction of hundreds of constitutional amendments. There are some very good reasons why the electoral college system has not been and should not be changed. This reasoning is as sound today as ever.
As I have said before, protecting the Constitution is among our most important responsibilities. It should not be taken lightly. The Constitution should only be amended as a last resort to solve a pressing national dilemma. The idea of amending the Constitution and abolishing or reforming the Electoral College has been diligently considered in many previous sessions of Congress. A careful review of the record reveals that the proposals before us today are not much different from proposals that have been considered and rejected by previous Congresses for many good reasons.
As an initial consideration, we must ask what is the pressing national dilemma that can only be cured by changing the Constitution? The central argument of direct election proponents is that without direct elections we run the risk of electing Presidents that, despite getting more popular votes than there opponents, lose the election because their opponent wins more electoral votes. I am not convinced that this ''Minority President'' concern is all of the problem that it is made out to be. First of all, our national government is a federalist system composed of states and the District of Columbia. With our current system, candidates seeking national office must address the needs of these states consistent with the manner in which our government is organized. Any change to this system would lead to a significant decline in federalism and in the sovereignty of the states.
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In addition, proponents of direct elections assert that the winner take all method of voting unfairly reflects the support for the candidate losing in any given state. In most sports, championships are not cumulative. One must win the majority of contests to be victorious. The winner of the World Series is not determined by who scored the most cumulative runs of the series. In fact, in 3 of the last 5 World Series, the losing team actually scored more runs in the series than the winner. The winner of the World Series is chosen by who wins the majority of the games of the series. To be President, one has to be the voters top choice in a number of states which equals an electoral college majority. This ensures balance and broad support. Any other system would, in essence, reward a lopsided winner in a few populous states at the expense of a national candidate that wins in most states. A candidate can't just win a landslide in their home state and run away with the votes in their geographical region. They have to do well outside of their part of the country. We should not abolish the Electoral College in order to reward regional candidates who have little broad based support.
Moreover, the elimination of the Electoral College in favor of direct elections could lead to many other problems that pale in comparison to any concerns anyone has with the current system. What type of President would we elect in a direct popular election system? If we were to eliminate the broad based support required of a candidate that is competitive in our current federalist system, would we then create the opportunity for extremists to be elected to our highest office?
Both of the Constitutional Amendments before the Committee include runoff triggers. If a candidate does not receive 40 or 50 percent of the vote, then a runoff election must be held against the top two candidates. This would be devastating to our system of government. We have seen how runoffs can cause confusion, delay candidates from taking their offices, and change the final outcome of elections. In 1992, Bill Clinton did not receive over 50% of the popular vote. If H.J. Res. 53 had been the law in 1992, a runoff election would have been triggered between Bill Clinton and George Bush. There is no way to tell who would have been elected President if this amendment had been in effect. One thing, however, is for sure. Fewer people would have come out to vote in the second election which will be held without the concurrent elections of governors, senators, state representatives and local elected officials. We have a difficult enough time getting less than half the population to register to vote and vote on election day. What will happen when, because a candidate gets 49% of the vote, another election must be held. Furthermore, what power would a candidate wield in a situation where he or she could deny a candidate their 50% and quite possibly the Presidency.
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I am also concerned about the logistical difficulties of direct elections. Recounts and voter fraud investigations would be almost impossible in a national election system where every vote counts towards the final outcome of the election. Now, a candidate who loses Virginia by one vote and wins a recount would only change the overall election outcome by Virginia's 13 electoral votes. Any direct election recount or fraud allegation would have much greater relevancy because its effect would not just be isolated to Virginia and its 13 electoral votes. Instead, the entire national election would be affected. In addition, how would we account for the differences in various states election laws if every vote counts against every vote. It would not seem fair for example, if state A has same day registration and state B residents must register a month before the election. How would these issues be reconciled?
It is these types of possibilities that should give all of us great pause in changing or abolishing the Electoral College. I look forward to learning more about these issues from today's witnesses. Your time and preparation is greatly appreciated.
Mr. CANADY. Mr. Hyde.
Mr. HYDE. Well, I thank you, Mr. Chairman, especially for holding these hearings. I think this is really a fascinating issue. Some people may think it is dull and academic, but I think it gives us an opportunity to try to better understand what our democracy is all about, our democracy.
Page 11 PREV PAGE TOP OF DOC The notion of an arithmetic winner, in my humble opinion, strikes at the very heart of the compromises that put this country together back in 1789 and 1787. The notion that a President, Presidential candidate, should play to the population centers only and not worry about Idaho or South Dakota or South Carolina, Rhode Island, but work it where the numbers are, New York, Los Angeles, Chicago, Miami, it seems to me flies in the face of this marvelous successful history. There aren't a lot of things that are terribly successful in history, but the compromises between national interests and local interests, the making every citizen feel they are a part of the operation even if their candidate loses is one of the wonders, one of the geniuses of our system.
And, so, the forging of consensus, I think one of our witnesses, Mr. Berns, has said something that in a very few words encapsulates this whole issue: ''What is constitutionalism if not a qualification of majoritarianism?'' And of course, that is right. You can have a majority, but if you've got a Constitution, you need a supermajority. On really important things you need a supermajority to amend a Constitution, override a veto, ratify a Constitution, and that was so the little guys would have a role in this great democracy. The compromise whereby geography is represented in the Senate and people are represented in the House was genius, absolute genius. That is how it happened, how our country came together. So everybody has some voice in the governance of this country.
So I think it is great. It gave me a chance to reread the statements and revisit this issue and understand that our democracy is not a matter of procedures arithmetic, it is a matter of values. And that is what makes it unique, in my judgment, in the historyin human history. So I thank you. I've talked longer than I wanted to.
Page 12 PREV PAGE TOP OF DOC Mr. CANADY. Mr. Inglis.
Now we'll go back to where I jumped to earlier. Again, we appreciate both of you being with us. We are going to use the light, but we won't strictly enforce the 5-minute rule with the Members panel.
STATEMENT OF HON. RAY LaHOOD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. LAHOOD. Thank you, Mr. Chairman. Mr. Chairman, I want to thank you at the outset here. I know that your subcommittee has many, many important issues that you need to deal with as we begin the fall portion of our session, and I'm very grateful for this hearing today. I know that it signifies the importance that you place on this issue, and I appreciate very much the opportunity to have this hearing, particularly given the kind of busy schedule that I know that your subcommittee has.
If you would indulge me, I would like to read my statement because I think it makes the points that I want to make in terms of the amendment that we have introduced.
Mr. Wise is unable to be here today, but he does represent the other side of the aisle and also a small State. I am from Illinois, which is considered a big State in our country, and West Virginia is a small State, and I appreciate the support that I have had from Mr. Wise.
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The answer to the question should we abolish the electoral college, I think the answer is yes. I do not believe that we need the Electoral College. I believe the electoral college is merely a relic of times past, running counter to our democratic processes.
Currently, the only offices not elected by the popular vote in this country are the President and Vice President. The continuance of the Electoral College tradition simply makes no sense given the fact that all other elected offices from the United States Senate down to our local elected officials, including township officials, are elected directly by the people.
I wonder how many voting citizens really realize that a vote for President really isn't a vote for him or her at all. In fact, when a voter steps into the polling booth during a Presidential election, they are not actually electing the President, but rather a slate of electors whose job it is actually to elect the President and Vice President.
In an effort to counter the democratic problem posed by the existence of the Electoral College, I, along with Congressman Wise, introduced H.J. Res. 28 on January 9, 1997. This resolution calls for an amendment to the Constitution to abolish the Electoral College. The House of Representatives overwhelmingly passed similar legislation in 1969 with well over 300 votes which would have abolished the Electoral College, and that legislation failed to pass the Senate, as it was filibustered during the time that it was considered in the Senate.
That amendment, by the way, was brought up as a result of a very close election that occurred between then candidate Nixon and candidate Humphrey, which was, as you recall, a very close election. And Congress subsequently then debated and in the House passed with well over 300 votes a constitutional amendment.
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H.J. Res. 28 is an effort to renew this cause and return the voting power to the voters, thereby ending Electoral College filter that has been used since the beginning of our Constitution. Specifically, our bill proposes a direct method of electing the President and Vice President. This means that the people would directly vote for President and Vice President, and the winner of the election would be that person who receives the most number of votes, providing they received at least 40 percent of the vote; not 50 percent, which Mr. Campbell proposed, but 40 percent. If no candidate receives 40 percent or more of the popular vote, then a runoff election would be held between the two candidates who received the highest number of votes. In the last election, President Clinton obviously having received a plurality, more than 40 percent, would have won the election.
This approach would hopefully rectify a potentially huge, looming political crisis, an election that results in a President being elected without winning the popular vote. And this situation actually occurred three times in the history of our country, which resulted in the election of John Quincy Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 1888.
I believe it is important to act now before the situation occurs a fourth time. All too often Congress is perceived as reactionary and not proactive. Going forward with legislation aimed at dismantling the electoral college would help shed this perception and help avert a potentially huge dilemma.
While I know I am not the first Member of Congress to introduce a bill calling for the dissolution of the Electoral College, Mr. Chairman and distinguished colleagues, I hope that we can act responsibly and proactively by working together to end the electoral college.
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Voters deserve to know that their vote counts, not the vote of some electors they do not even know. And I might add parenthetically in 1988 I had the privilege of being the elector from Illinois and traveled to the State capital of Springfield to vote for then George Bush, who was the candidate of our party, but, in fact, what I could have done when I went to Springfield that day would have voted for any one of you. I could have voted for myself, because electors are not bound to vote for the person who gets the plurality from their state. Electors can vote for anyone. And that is a flaw in the system, that an elector can go to a State capital and vote for anybody they want to.
So, in reality, electors could have gone to their State capitals this year and voted for any person they wanted to vote for, and I think that is another reason that we should consider this important legislation, and I hope that it will be considered. And again, Mr. Chairman, I am grateful to you for holding this hearing on this important issue. Thank you very much.
Mr. CANADY. Thank you Representative LaHood.
[The prepared statement of Mr. LaHood follows:]
PREPARED STATEMENT OF RAY LAHOOD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Thank you, Mr. Chairman, for agreeing to hold these hearings. I very much appreciate your willingness to have this forum for a discussion and a dialogue on a topic that is of profound importance to the American people and to American democratic ideals: whether there is a continued need for the Electoral College.
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My answer to this question is simple: I do not believe we need the Electoral College.
I believe the Electoral College is merely a relic of times past, running counter to the democratic process.
Currently, the only offices not elected by popular vote are the President and Vice-President.
The continuance of the Electoral College tradition simply makes no sense given the fact that all other elected officials (from U.S. Senator down to those holding local offices) are elected directly by the people.
I wonder how many voting citizens really realize that a vote for the President isn't really a vote for him or her at all. In fact, when a voter steps into a polling booth during a Presidential election, they are not actually electing the President, but rather a slate of electors whose job it is to actually elect the President and Vice-President.
In an effort to correct the counter-democratic problems posed by the existence of the Electoral College, I, along with Congressman Wise, introduced H.J. Res. 28 on January 9, 1997. This resolution calls for an amendment to the Constitution of the United States to abolish the Electoral College.
The House of Representatives overwhelmingly passed legislation in 1969 that would have abolished the Electoral College, but the same legislation failed to pass in the Senate.
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H.J. Res. 28 is an effort to renew this cause and return the voting power to the voters, thereby ending the Electoral College filter that has been used since the beginning of our Constitution.
Specifically, our bill proposes a direct method of electing the President and Vice President. This means that the people would directly vote for the President and Vice President, and the winner of the election would be that person who receives the most number of votes, provided they received at least 40 percent of the vote.
If no candidate receives 40 percent or more of the popular vote, then a runoff election would be held between the two candidates who received the highest number of votes.
This approach would hopefully rectify a potentially huge, looming political crisis: an election that results in a President being elected without winning the popular vote.
This situation has occurred three times in our history, resulting in the election of John Quincy Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 1888.
I believe that it is important to act now, before this situation occurs for a fourth time. All too often, Congress is perceived as reactionary and not pro-active. Going forward with legislation aimed at dismantling the Electoral College system would help shed this perception, and help avert a potentially huge political dilemma.
Page 18 PREV PAGE TOP OF DOC While I know I am not the first Member of Congress to introduce a bill calling for the dissolution of the Electoral College, I hope, that I can be the last.
Mr. Chairman and distinguished colleagues, I hope that we can act responsibly and pro-actively by working together to end the Electoral College.
Voters deserve to know that their vote counts, not the vote of some Elector they don't even know.
Thank you, Mr. Chairman.
Mr. CANADY. Please proceed.
STATEMENT OF HON. ROBERT A. UNDERWOOD, A REPRESENTATIVE IN CONGRESS FROM GUAM
Mr. UNDERWOOD. Thank you, Mr. Chairman. And I appreciate your indulgence in allowing me to speak today on short notice. My view on this is obviously shaped by the fact that I am a nonvoting delegate from Guam, and as a consequence my view of this is particularly shaped by that reality.
We are U.S. citizens. I represent 150,000 people on the other side of the date line who are not full participants in the American system. I have had discussions, brief discussions with Mr. Wise and Mr. LaHood on this, and I do not mean to complicate their proposals because I know that their proposals are aimed at simply eliminating the Electoral College for States and the District of Columbia, and that the proposals do not touch on the issue of the voting participation of U.S. citizens from the territories. But I do want to take this opportunity to raise that issue with the committee and to discuss my point of view.
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There are over 4 million U.S. citizens who live under the U.S. flag in areas that are territories and/or commonwealths of the United States who do not participate in national elections and are represented in the House of Representatives by nonvoting Members of the House. One of the quickest ways to distinguish this type of U.S. citizenship from other types of U.S. citizenship is to simply tell people that we can't vote for the President. That is particularly ironic considering the fact that many of our sons and daughters are in the service, and one of the ways that distinguishes them from other members of the armed services is that they have no right to participate in the selection of the Commander in Chief.
And as a consequence, our view of American historyI think ismuch the same as most people's view of American history, and that is that American history is really the story about perfecting democracy. It is the story about how to include more and more people into the democratic process and to find a way toin Mr. Hyde's termsinclude the little guys. We are really little. We are beyond little in terms of our impact on the American political process.
And I know that in respect to Mr. Hyde, he was referring to people from South Dakota and States which are small politically and small in population, but it would really help perfect and build up support for the notion of American democracy to extend the right of participation and selection of the Commander in Chief to those who are able to join and who are eligible for the draft and those who have participated.
Certainly Guam, my own territory, has participated not only in terms of sending men and women to participate in the Nation's wars, but also endured horrific occupation during World War II. We are the only American territory with civilian population on it that endured an occupation by a foreign power since the War of 1812.
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As we see it, it is not simply a mathematical issue. I appreciate and understand all the arguments that have been raised on this issue. But there is the fact that normally you do not change the Constitution, you do not seek to amend the Constitution unless there is some kind of pressing dilemma. Admittedly, there is not a pressing national dilemma to include the territories, but it is a pressing dilemma for those people, for those individuals who regularly witness and are affected by the decisions of the chief executive of this country and who have no way to participate in the selection of the chief executive.
I do not think that the inclusion of the territories in the election of the chief executive will in any way alter or shape the nature of State relationships to the Federal Government or territorial relations to the Federal Government, because participation of the territories in the Congress is shaped either by a change in political status or by altering the Constitution in some other way.
But the chief executive of this country affects the lives of American citizens in territories in ways that go even beyond, I think, citizens in the 50 States and in the District of Columbia, and it is for that very special reason that I think adequate consideration should be given to the participation of U.S. citizens in the territories when we elect the President.
The added element of this is Guam is the only territory on the other side of the international dateline. Were we to participate in the Presidential elections, we would be the first to report our results.
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Mr. CANADY. Thank you, Delegate Underwood.
Mr. CANADY. Again, I want to thank both of you for being with us. We appreciate your input on this important subject.
Thank you. We will now move to our second panel.
Mr. CONYERS. Could I ask, Ray, that this is probably where this trust that we have in use from Hershey, where you earned great permanent respect, came from. But you never voted different, did you, all the time you were an elector?
Mr. LAHOOD. I was an elector on one occasion, and I voted for George Bush, who did get the plurality of votes in Illinois that year. But during that election throughout the country, actually some electors did vote for another candidate.
Mr. CONYERS. Is that right?
Mr. LAHOOD. Correct.
Mr. CONYERS. Now, if you got representation, my dear brother and neighbor, would you pay taxes?
Mr. UNDERWOOD. No, we would not. The taxation issue
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Mr. CONYERS. I mean, representation without taxation; is that what you represent?
Mr. UNDERWOOD. No. Let's try the reverse.
Mr. CONYERS. Okay. Taxation and then you get representation.
Mr. UNDERWOOD. Well, I think the origin of this country is no taxation without representation, not no representation without taxation. If I could, let me just deal with that issue.
It is true that the citizens of the territories do not pay U.S. taxes directly. They participate in different ways in the taxation of income taxes, but that is a function of the fact that they are not States. And, so, if they are to be States or they are to be considered for fuller participation, for example, in the House of Representatives or in the Senate, then I think the taxation system is clearly
Mr. CONYERS. But that is a perfectly legitimate view to bring to Congress. You want representation, but you still do not want to pay taxes. There is nothing wrong with that. I know a lot of people in my district that feel the same way.
Mr. UNDERWOOD. Well, respectfully, that isn't what I said.
Mr. CONYERS. Well, I asked you would you want to pay taxes, and I think you said no.
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Mr. UNDERWOOD. Not if we're not going to get representation.
Mr. CONYERS. No. I said, if you get representation, would you pay taxes?
Mr. UNDERWOOD. Well, under that scenario, yes, of course.
Mr. CONYERS. Well, now, okay. Now, do you have any bills in to accomplish that objective so I can support you?
Mr. UNDERWOOD. No.
Mr. CONYERS. Well, are you contemplating any?
Mr. UNDERWOOD. No. I do not think they would go very far.
Mr. CONYERS. Well, do you have any bills in on this subject whatsoever?
Mr. UNDERWOOD. We have a bill to change the political status of Guam, yes.
Mr. CONYERS. All right.
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Mr. CANADY. Thank you.
Mr. CANADY. If our second panel would come forward, our second and final panel. I want to welcome the members of this panel. I appreciate all of you being with us today.
The first witness from our second panel today will be Becky Cain. Ms. Cain is president of the League of Women Voters of the United States and serves as chair of that organization's education fund.
Next we will hear from Professor Judith Best. Dr. Best is a distinguished teaching professor of political science at the State University of New York at Cortland and is the author of The Choice of the People, Debating the Electoral College.
Professor Akhil Amar will be next to testify. He is a professor of constitutional law at Yale Law School, my alma mater, and has been published frequently in support of electoral college reform.
We will then hear from Mr. Curtis Gans. Mr. Gans has served as director of the Committee for the Study of the American Electorate for 21 years. He is a renowned authority on voter turnout and political participation.
Our final witness today will be Professor Walter Berns. Professor Berns comes to us from the American Enterprise Institute, where he serves as a resident scholar. He is also the John M. Olan Professor Emeritus at Georgetown University and editor of After the People Vote, a Guide to the Electoral College.
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Again, we thank all of you for being with us today. I would ask that you do your best to summarize your testimony in 5 minutes. We will have the light illuminated there. We are not going to strictly enforce the 5-minute rule, but try to stay as close to that as possible. And, without objection, your full written statements will be included in the permanent record.
Mr. CANADY. Ms. Cain.
STATEMENT OF BECKY CAIN, PRESIDENT, LEAGUE OF WOMEN VOTERS
Ms. CAIN. Thank you.
Mr. Chairman and Members of the subcommittee, I am Becky Cain, and I am president of the League of Women Voters of the United States. I am pleased to be here today to express the League's support for a constitutional amendment to abolish the Electoral College and establish the direct election of the President and Vice President of the United States by popular vote of the American people.
The League of Women Voters is a nonpartisan citizen organization that for over 75 years has worked to educate the electorate, register voters, and make government at all levels more accessible and responsive to the average citizen.
Since 1970, the League has supported an amendment to the Constitution that would abolish the Electoral College and establish a direct popular vote for the President and Vice President of the United States. The League arrived at this position through its time-honored study and consensus process. Leagues in over 1,000 communities across the country participated in a study and came to the same conclusion: our method of electing a President must be changed to ensure a more representative government.
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Political developments since the 1970's have only underscored the need for the elimination of the Electoral College system. The downward trend in voter participation, coupled with the increased cynicism and skepticism amongst the public about the ability of the elected leaders to provide meaningful representation are the warning signs of a potential electoral fiasco.
Picture, if you will, a future national election in which a Presidential candidate receives a majority of the popular vote, but is denied the 270 votes necessary for election by the Electoral College. This has happened once in our Nation's history in 1888. It caused a public furor then when political office was often gained through back-room deals and closed-door maneuverings. Imagine the public outcry today after a long primary campaign and a grueling race for the Presidency. Imagine the public's rage at being denied their candidate of choice.
Now go one step further. Consider a close three-way race for President in which no candidate earns the necessary electoral votes to win. This has happened twice before in our Nation's history, in 1801 and 1825, when the House of Representatives chose Thomas Jefferson and John Quincy Adams respectfully. While the League believes both of these men were great Presidents, we are troubled about the potential for a future Presidential candidate with the highest number of popular votes to lose the election in the House of Representatives dominated by one or another political party.
In the 20th century, we have only narrowly avoided a series of constitutional crises in which the electoral college could have overruled the popular vote. In 1916, a shift of only 2,000 votes in California would have given Charles Evans Hughes the necessary electoral votes to defeat Woodrow Wilson despite Wilson's half-million vote nationwide plurality. In 1948, a shift of only 30,000 votes in three States would have delivered the White House to Governor Dewey in spite of the fact that he trailed President Truman by some 2.1 million popular votes. In 1976, a shift only 9,300 votes in two States would have elected Gerald Ford even though he trailed Jimmy Carter in the popular vote by 1.6 million ballots.
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Apart from the public outcry that would be served by a circumvention of the populous, there are a number of other serious flaws in the electoral college system. The system is fundamentally unfair to voters. In a Nation where voting rights are grounded in the one person, one vote principle, the Electoral College is a hopeless anachronism.
The current system is unfair for two reasons. First, a citizen's individual vote has more weight when he or she lives in a State with a small population than if that citizen lives in a State with a large population. For example, each electoral vote in Alaska is equivalent to approximately 112,000 people. Each electoral vote in New York is equivalent to approximately 404,000 eligible voters, based on the 1990 census, and that is if everybody votes.
The system is also unfair because a citizen's individual vote has more weight if the percentage of voter participation in the State is low. For example, if only half of all the people in Alaska vote, then each electoral vote is equivalent to roughly 56,000 people. Moreover, the electoral vote does not reflect the volume of voter participation within a State. If only a few voters go to the polls, all the electoral votes of that State are still cast.
Finally, the electoral system is flawed because the Constitution does not bind Presidential electors to vote for the candidates to whom they have been pledged. For example, in 1948, 1960 and 1976, individual electors pledged to the top two vote-getters cast their votes for third place finishers and also-rans.
For all these reasons, the League believes that the Presidential election method should incorporate the one vote, one person principle.
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Until the amendment is passed or changed the current system, we would also support changes in the rules and regulations under which the House operates and the Senate operates in choosing the President and Vice President.
The time has come to take the next step to ensure a broad-based democracy. Our history and our Nation has a history of including, from the fifteenth amendment to the seventeenth amendment to the nineteenth amendment to the twentysixth amendment, of incorporating people in the election process. This is the next step. Fairness argues for it. Retaining the fragile faith of American voters in our representative system demands it. We urge the House and Senate to pass a constitutional amendment abolishing the Electoral College system and establishing the direct popular election of our President and Vice President.
Thank you Mr. Chairman.
Mr. CANADY. Thank you, Ms. Cain.
[The prepared statement of Ms. Cain follows:]
PREPARED STATEMENT OF BECKY CAIN, PRESIDENT, LEAGUE OF WOMEN VOTERS
Mr. Chairman, members of the subcommittee, I am Becky Cain, president of the League of Women Voters of the United States.
I am pleased to be here today to express the League's support for a constitutional amendment to abolish the electoral college and establish the direct election of the President and Vice President of the United States by popular vote of the American people.
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The League of Women Voters of the United States is a non-partisan citizen organization with 150,000 members and supporters in all fifty states, the District of Columbia and the Virgin Islands. For over 75 years, Leagues across the country have worked to educate the electorate, register voters and make government at all levels more accessible and responsive to the average citizen.
Since 1970, the League has supported an amendment to the Constitution that would abolish the electoral college and establish a direct, popular vote for the President and Vice President of the United States. The League arrived at this position through its time-honored study and consensus process. Leagues in over 1,000 communities across the country participated in the study and came to the same conclusion: our method of electing a President must be changed to ensure a more representative government.
Political developments since the 1970s have only underscored the need for the elimination of the electoral college system. The downward trend in voter participation, coupled with increased cynicism and skepticism amongst the public about the ability of elected leaders to provide meaningful representation are the warning signs of a potential electoral fiasco.
Picture if you will a future national election in which a presidential candidate receives a majority of the popular vote, but is denied the 270 votes necessary for election by the electoral college. This has already happened once in our nation's history, when, in 1888, Grover Cleveland out-polled Benjamin Harrison in the popular vote but lost the electoral college vote by 233 to 168. It caused a public furor then, when political office was often gained through back-room deals and closed-door maneuvering. Imagine the public outcry today, after a long primary campaign and a grueling race for the Presidency. Imagine the public's rage at being denied their candidate of choice.
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Now go one step further. Consider a close three-way race for President in which no candidate earns the necessary electoral college votes to win. This has happened twice before in our nation's history, in 1801 and 1825, when the House of Representatives chose Thomas Jefferson and John Quincy Adams, respectively. While the League believes both of these men were great presidents, we are troubled about the potential for a future presidential candidate with the highest number of popular votes to lose the election in a House of Representatives dominated by one or another political party.
In the twentieth century, we have only narrowly avoided a series of constitutional crises in which the electoral college could have over-ruled the popular vote.
In the 1916 presidential election, a shift of only 2,000 votes in California would have given Charles Evans Hughes the necessary electoral votes to defeat Woodrow Wilson, despite Wilson's half-million vote nationwide plurality.
In 1948, a shift of only 30,000 votes in three states would have delivered the White House to Governor Dewey, in spite of the fact that he trailed President Truman by some 2.1 million popular votes.
In 1960, a shift of only 13,000 votes in five states (5,000 in Illinois, 5,000 in Missouri, 1,200 in New Mexico, 1,300 in Nevada and 200 in Hawaii) would have made Richard Nixon president.
In 1968, a shift of 42,000 votes in three states (Alaska, Missouri and New Jersey) would have denied Nixon an electoral college victory and thrown the election into the House of Representatives.
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In 1976, a shift of only 9,300 votes (5,600 from Ohio and 3,700 from Hawaii) would have elected Gerald Ford, even though he trailed Jimmy Carter in the popular vote by 1.6 million ballots.
Apart from the public outcry that would be caused by a circumvention of the popular will, there are a number of other serious flaws in the electoral college system.
The electoral college system is fundamentally unfair to voters. In a nation where voting rights are grounded in the one person, one vote principle, the electoral college is a hopeless anachronism.
The current system is unfair for two reasons.
First, a citizen's individual vote has more weight if he or she lives in a state with a small population than if that citizen lives in a state with a large population.
For example, each electoral vote in Alaska is equivalent to approximately 112,000 people. Each electoral vote in New York is equivalent to approximately 404,000 eligible people (based on 1990 census data). And that's if everyone votes!
The system is also unfair because a citizen's individual vote has more weight if the percentage of voter participation in the state is low. For example, if only half of all people in Alaska vote, then each electoral vote is equivalent to roughly 56,000 people.
Page 32 PREV PAGE TOP OF DOC Moreover, the electoral vote does not reflect the volume of voter participation within a state. If only a few voters go to the polls, all the electoral votes of the state are still cast.
Finally, the electoral college system is flawed because the constitution does not bind presidential electors to vote for the candidates to whom they have been pledged. For example, in 1948, 1960 and 1976, individual electors pledged to the top two vote getters cast their votes for third place finishers and also-rans. Defecting electors in a close race could cause a crisis of confidence in our electoral system.
For all these reasons, the League believes that the presidential election method should incorporate the one-person, one-vote principle. The President should be directly elected by the people he or she will represent, just as the other federally elected officials are in this country. Direct election is the most representative system. It is the only system that guarantees the President will have received the most popular votes. It also encourages voter participation by giving voters a direct and equal role in the election of the President.
Of course, a direct popular vote does not preclude the possibility of a close three-way race in which no candidate receives a majority, or even a plurality, of the votes. The League believes that if no candidate receives more than 40 percent of the popular vote, then a national run-off election should be held.
Until there is a constitutional amendment to abolish the electoral college, the League supports the early establishment of clear rules and procedures for the House and Senate to handle their responsibilities in electing the President and Vice President if there is no majority vote in the electoral college.
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Procedures should be established to avoid the last-minute partisan wrangling that would inevitably take place. In addition, we believe any congressional vote for President must take place in full public view, with individual representative's votes entered into the Congressional Record.
When the constitution was first written, our nation was a vastly different kind of democracy than it is today. Only white, male property owners could vote. The 15th Amendment gave black men the right to vote. The 17th Amendment provided for direct popular election of the Senate. The 19th Amendment gave women the vote. The 26th Amendment established the right of citizens 18 years of age and older to vote.
The time has come to take the next step to ensure a broad-based, representative democracy. Fairness argues for it. Retaining the fragile faith of American voters in our representative system demands it. We urge the House and the Senate to pass a constitutional amendment abolishing the electoral college system and establishing the direct popular election of our President and Vice President.
Mr. CANADY. Professor Best.
STATEMENT OF JUDITH A. BEST, DISTINGUISHED TEACHING PROFESSOR, STATE UNIVERSITY OF NEW YORK AT CORTLAND
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Ms. BEST. Thank you, Mr. Chairman.
I am here to speak in defense of the electoral vote system because it is a device to produce the right winner. Let me quickly interject that I defend the electoral vote system, not the office of elector. The office of elector can, and I think should, be abolished, but not the electoral votes. They can be cast automatically. As the system has operated in practice for 160 years, the electors have been mere ciphers.
In practice, we do have a direct popular Federal election. Most of those who propose constitutional amendments to change the Presidential election system want to abolish the Federal principle in the process. Their idea of legitimacy is numbers alone. They are head counters who confuse politics with arithmetic. Since it is possible, though not likely, that the electoral vote winner could be the loser in the popular vote contest, they say the process is illegitimate.
Their definition of the right winner, in my judgment, is narrow and simplistic. I think it is apolitical. The obvious purpose of the election is to fill the office, but that is too simple. If that is all we want, we could hold a national lottery and pick a name. Obviously we want a lot more than that. The right winner is the one who fulfills the multiple purposes for which we have Presidential elections.
First, the system should avoid contingency elections and disputed elections that create a climate for corrupt deals, tempt foreign enemies, and shorten the time for the orderly transfer of power. On this point, the current system has proven itself in time and practice. In the 160 years since its almost universal adoption, we have never had a contingency election nor come close to triggering one. Only one election, 1876, has been seriously disputed because of fraud. The non-Federal election with a 50 or a 40 percent runoff rule would turn the general election into a national primary, and that election would destroy the State unit quarantine on fraud leading to challenges and court-supervised recounts of every ballot box.
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Second, most of us want to preserve the two-party system which has served our national stability by promoting coalition building. It has been the Federal winner-take-all rule that has nurtured our moderate two-party system. In a non-Federal election the two major parties would lose control over the nominating process, their life blood.
Third, the system should produce a President who can govern. For this he must have a sufficient percentage of the popular vote, and that vote must be properly, that is federally, distributed. The fact that a successful candidate must win States, not just raw, unstructured votes, means that he must create broad cross-national Federal coalitions. Running a sectional or an ideological or a single-issue campaign is a formula for defeat, and the election of 1888 proves that point. The Federal principle in Presidential elections mean that numbers of votes are necessary, but not sufficient, for victory. The vote itself must be properly distributed or the winner will not be able to govern.
Fourth, the selection system should preserve the balance between the national and the local interests. Because the system requires the President to win States, it makes successful candidates sensitive to State and local issues. In non-Federal elections, we would lose this built-in sensitizing process.
Fifth, the proper system should preserve the balance of power between the President and Congress. Our Federal system does this because it makes the power base of the Presidency the same as that of the Congress. A plebiscite would increase the power of the Presidency in relation to the Congress.
Page 36 PREV PAGE TOP OF DOC Sixth and last, the proper system should preserve the Federal principle. If the Federal principle is illegitimate in Presidential elections, why isn't it illegitimate for the Senate? If numbers of votes are all that matters, why should a State with half a million people have the same representation as a State with 20 million people? And why should each State, regardless of its size, have at least one Representative in the House? Why shouldn't small States have to share a Representative with people from another State? And why should each State have an equal vote on constitutional amendments? The attack on the Federal principle in Presidential elections is an attack on that principle in the whole Constitution.
The current system is not perfect. No electoral system is. However, it has successfully served all six of our goals for Presidential elections. A non-Federal election would serve none of them. Some years ago, a student asked me, why does the electoral college keep winning? I was in a hurry and answered quickly: Because the Federal principle is just as important in Presidential elections as it is in the rest of the Constitution. Today I say to you, because from the perspective of our Constitution, it produces the right winner.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Professor.
[The prepared statement of Ms. Best follows:]
PREPARED STATEMENT OF JUDITH A. BEST, DISTINGUISHED TEACHING PROFESSOR, STATE UNIVERSITY OF NEW YORK AT CORTLAND
Page 37 PREV PAGE TOP OF DOC Critics of the electoral vote system believe that the principle of democratic legitimacy is numbers alone, and therefore they think the system is indefensible. On the contrary, the electoral vote system is a paradigmthe very modelof the American democracy, and thus is quite easy to defend. For all practical purposes it is a direct popular federal election. (The Electors are mere ciphers, and the office of elector, but not the electoral votes, can be abolished.) The critics' principle of democratic legitimacy is inadequate because it is apolitical and anti-federal. Logically it boils down to: the majority must win and the minority must lose no matter what they lose. It is a formula for majority tyranny. But majority rule is not the principle of our Constitution. Rather it is majority rule with minority consent. The critics, however, think that because the system does not follow an arithmetical model it may produce the ''wrong'' winner. In fact, I contend, because it is federal it produces the right winner.
The following passage from my recent book, The Choice of the People? Debating the Electoral College explains my point.
Politics and mathematics are two very different disciplines. Mathematics seeks accuracy, politics seeks harmony. In mathematics an incorrect count loses all value once it is shown to be wrong. In politics even though some people are out-voted they still have value and must be respected in defeat. Efforts must be made to be considerate and even generous to those who lost the vote, to make then feel they are part of the community, for if they feel alienated they may riot in the streets. Further, mathematical questions, like those in all the sciences, deal with truth and falsehood. But politics is an art, not a science. Political questions do not deal primarily with truth and falsehood, but with good and bad. We do not ask whether a political decision on war or taxation or welfare or agricultural subsidies is true. We ask, is the policy good for the country? And, will it actually achieve its purpose?
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Those who confuse politics and mathematics, the head counters, operate on an unstated assumption that the will of the people is out there like some unsurveyed land, and all we need do is send out the surveyors with accurately calibrated instruments to record what is there. They also assume that our democratic republic is a ship without a specific destination. Whatever most of the people want, most of the people must get, and the minority be damned. Mathematical accuracy being their sole criterion for legitimacy, they make a great fuss about politically imposed devices, intermediary institutions like the electoral vote system with its federal principle and its winner-take-all rule. From their perspective, such majority building and structuring devices complicate their self-assigned task, distort the accuracy of their count and possibly produce the ''wrong'' result.
If their assumptions were correct they would have a point. But their assumptions are false. Ours is a ship of state bound for a port called Liberty. On such a ship majority rule doesn't suffice without the consent of the minority. Their assumption about the will of the people is particularly false in this vast and varied country, in a continental republic populated by a people who do not share a common religion, race, or ethnic heritage, in a commercial republic populated by people with diverse and competing economic interests. In such a country the will of the people and the will of the majority can be two very different things. Therefore, the will of the peoplethat one thing which all can share, which is the goal of liberty for allmust be constructed and periodically reconstructed. This requires a political, not a mathematical process.
In this country, it requires a federal political process. The federal principle is one of the two fundamental structural principles of our Constitution (the other being the separation of powers). The proposals to abolish the electoral college are proposals to abolish the federal principle in presidential elections. All of our national elective offices are based on the federal principlethey are state based elections for we are a nation of states. Thus our national motto: E Pluribus Unum.
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The federal principle in presidential elections forces presidential candidates to build broad cross-national political coalitions. Thereby it produces presidents who can govern because of their broad cross-national support. In politics as well as in physics there is such a thing as a critical mass. In presidential elections numbers of votes are necessary but not sufficient. To create the critical mass necessary for a president to govern, his votes must be properly distributed. This means he must win states and win states in more than one region of the country.
Under the federal presidential election system, a successful candidate can't simply promise everything to one section of the country and neglect the others. Analogy: Why are professional football teams required to win games in order to get into the playoffs and win the Super Bowl? Why not simply select the teams that scored the most points during the regular season? Any football fan can tell you why. Such a process wouldn't produce the right winner. Teams would run up the score against their weakest opponents, and the best teams in the most competitive divisions would have the least chance to get into the playoffs. Such a system isn't the proper test of the team talent and ability. A nonfederal election is not a proper test of support for the president.
If we abandon the federal principle in presidential elections we will be abandoning a national consensus building device by allowing candidates to promise everything to the populous Eastern megalopolis, or to promise everything to white Christians, or to suburbanites who are now half of all the voters. These are formulas for inability to govern or even civil war. And a system, like direct popular election, based on raw unstructured numbers alone rather than on the structuring federal principle, would effectively reduce the influence of minorities who often are the swing votes in closely divided statesgroups like farmers who are only 2 percent of national population or blacks who are only 12 percent.
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We need to remember that when we change the rules, we change the game and the game strategy and the skills needed to win. Under the federal principle successful candidates must have consensus building skills. The goal of politics in this country is harmonymajority rule with minority consent. But when and why would a minority consent to majority rule? The answer is only if the minority can see that on some occasions and on some vital issues it can be part of the majority. It is irrational to consent to a game in which you can never win anything at all. To gain minority consent the Framers created many devices to allow minorities to be part of the minority, devices that give minorities more influence than their raw numbers would warrant including the state equality principle for representation in the Senate and the state distracting principle for the House of Representatives. (The majority party in the House is often ''over-represented'' if our measure is raw numbers of votes nationally aggregated.) Then, of course, there is the state equality principle in voting on constitutional amendments. And there is the three-fourths requirement for passage of amendments. Such devices are designed to give minorities an influential voice in defining the national interest. The president is a major player in defining the national interest, and therefore it is necessary that the presidency be subjected to the moderating influence of a federal election system.
An equally important outcome of a state based election system is that it serves to balance local and national interests. It is not just racial, religious, ethnic or occupational minorities that must be protected, there are local minorities whose consent must be sought. The people in small states must be protected against misuse of the phrase ''the national interest.'' My favorite example is the problem of nuclear waste which none of us want in our backyardsnot in my state. The rest of us can outvote Utahso let's turn Utah into our national nuclear waste dump. This is majority tyranny in action. Nuclear waste is a national problem and the burden of solving it should not be placed on the people of one state without their consent. Since the president is a major player in making national policy, it is just as important that he be sensitive to balancing national and local interests, and the federal election system is designed to make it so. The right winner is a presidential candidate who recognizes the necessity and often the justice in balancing national and local interests. As Jefferson said, ''the will of the majority to be rightful must be reasonable.'' The federal principle even and especially in presidential elections is a device for building reasonable majorities.
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The opponents of the electoral vote system are head counters who confuse an election with a census. In a census our goal is mere accuracy. We want to know how many people are married or divorced, or have incomes over or under $20,000, or are Catholic or Protestant etc. In short, we want to break down the population into its multiple individual parts. In an election, especially a presidential election, we want to bring the people together. We want to build consensus, to build the support necessary and sufficient for our president to govern.
The proponents of direct national election think their system solves problems, but in fact it creates problems that are addressed or avoided by the federal election system. Presidential elections have multiple goals. Obviously we want to fill the office with someone who can govern, but we also want a swift, sure decision, and we want to reduce the premium on fraud, and most of us want to support the two party systema major source of national stability and a consensus, coalition building system.
From this perspective, the current system has been very successful. Since 1836 with the almost universal adoption of the state unit rule, awarding all of a state's electoral votes to the winner of the popular plurality, we have had never had a contingency election. That's a proven record of 160 years. And we know the reason why: the magnifier effect of the state unit rule, a.k.a. the winner-take-all system. The victor in the popular vote contest for president will have a higher percentage of the electoral vote. The magnifier effect does not exaggerate the mandatepopular vote percentages are widely reported, not electoral vote percentages. The magnifier effect is not like a fisherman's story in which the size of the fish grows with the telling. Rather it is like the strong fishing line that serves to bring the fish, whatever its size, safely to shore. It supports the moderate two-party system, and balances national and state interests. And it makes the general election the only election.
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Of course, there would be no magnifier effect under direct non-federal election, and the result is that contingency elections would become the rule. Under one proposal there would be a national runoff if no candidate received 50 percent of the popular vote. This provision would turn the general election into a national primary, proliferate candidacies and weaken or destroy the two-party system. It would also increase the potential for fraud and result in contested general elections with every ballot box in the United States having to be reopened and recounted under court supervision. Even the Left-handed Vegetarians Party could bring a court challenge because 1 percent or less of the popular vote could trigger a runoff election. And there would be a reason to challenge. In a runoff election even candidates who are not in the contest can win something by making a deal with one of the remaining two in return for support in the runoff. Not only would this mean an extended period of uncertainty about who the president will bea temptation to foreign enemies, but also little time for the orderly transfer of power.
Most proponents of direct election, recognizing that to require a majority of the popular votes would produce these problems, suggest a 40 percent instead of a 50 percent runoff rule. The fact that most supporters of direct election are willing to make this concession indicates the seriousness of the problems attending contingency elections. This is a compromise of their principlethe arithmetical majority principle. Logically, on their principle, whenever no one polls 50 percent plus one vote there should be a runoff election.
And 40 percent is not a magical figure. It could be 42 or 44% with similar resultfrequent runoffs. It is true that only one president, Lincoln, (who was not on the ballot in 10 states) failed to reach the 40 percent plurality figure. However, history under the current system cannot be used to support the 40 percent figure because when you change the rules you change the game. Under the current rules we have had 17 minority presidential termspresidents who came to the office with less than 50 percent of the popular vote. The last two are Clinton's terms. The list includes some of our best presidents, not only Lincoln, but also Wilson (twice), Polk and Truman. Seventeen minority presidential terms out of 42 presidents! The unit rule magnified their popular pluralities into electoral vote majorities because they won states.
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But under direct nonfederal election there would be no magnifier effect. Potential candidates would recognize that multiple entries would be likely to trigger a runoff wherein one losing candidate could win a veto promise, another a Supreme Court nomination and a third a special interest subsidy in return for an endorsement in the runoff. And there is no reason to believe all such deals would be struck in the open. There would be no incentive for coalition building prior to the general election. The two major national parties would lose all control over the presidential nomination processtheir life blood. Factional candidates, single issue candidates, extremist candidates would serve as spoilers. As one commentator noted, on the day prior to the election, the New York Times would have to publish a twenty page supplement simply to identify all the candidates.
Add to this the second chance psychology that would infect voters, and you have the formula for a national ordeal. Second chance psychology arises from the recognition that a popular vote runoff is a real possibility. Many a voter, thinking he will have another chance to vote in a runoff, will use his general election vote to protest something or otherto send a message.
Recounts would be demanded not only to determine who won, but also whether any candidate actually polled the 40% minimum, and if not which two candidates would be in the runoff. Under the unit rule magnifier effect which discourages multiple candidacies, we have already had five elections in which the popular vote margin was less than one percent. In the 1880 election the margin was one tenth of one percent. If such could happen under the current system where it is unlikely to trigger a runoff, it surely will happen under a 40 percent rule with a hair trigger runoff system. Weeks or months could pass with the outcome in doubt. One candidate could claim victory and start naming his cabinet only to be told some weeks later that he would have to participate in a runoff.
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Further, the electorate wearies of prolonged elections. Even in the sports world players as well as fans reach a point where they want an end to it, and so accept sudden death rules. It is so important to fill the office on a timely basis that we have even had one president, Gerald Ford, who was not confirmed by a national election. Ford succeeded to the office on the resignation of his predecessor, Richard Nixon, but unlike vice presidents who had succeeded before him, he had been nominated by Nixon and confirmed by congressional vote under the provisions for filling vice presidential vacancies in the Twenty-fifth Amendment.
No election system is perfect, but the current system has borne the test of time. It has never rejected the winner of a popular vote majority. In every case but one it gave the victory to the winner of the popular plurality. And that one case proves the rule. Cleveland, who lost in the electoral vote, won the popular vote while running a sectional campaign. He did not seek to broaden his support; he focused his message on one section of the country. Unintentionally, he thereby sent a message about the current system to all future presidential candidates: Remember 1888! Don't run a sectional campaign! Further, he won the popular vote by only eight tenths of one percent! This was an election that verged on a tie. Since a timely decision is so important, a reasonable tie breaker is the win states federal principle.
The proposed amendments would deform not reform the Constitution. It is not just the presidency that is at risk here. If the federal principle is illegitimate in presidential elections, why isn't it illegitimate for Senate and House elections? Why should a state with half a million people have the same representation in the Senate as a state with twenty million people? Why should every state have at least one representative in the House? Why shouldn't states with very small populations have to share a representative with folks in another state? And why should each state regardless of its population size have an equal vote on constitutional amendments? The Framers knew the answer to these questionsthe federal principle. It is true that the electoral vote system did not work out in precisely the fashion that the Framers anticipated, but it did evolve in conformity to the federal principle and the separation of powers. I have no doubt that they would recognize this if they were here today. It evolved in conformity with the federal spirit of the Constitution, the ''great discovery,'' the Framers themselves made.
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For this, let us turn to Alexis de Tocqueville, who commenting on the federal principle in the Constitution, called it ''a wholly novel theory, which may be considered as a great discovery in modern political science.'' He goes on to explain that combines the best of both worlds. He says that its advantage is to unite the benefits and avoid the weaknesses of small and large societies. He learned this not only from observation, but also from reading James Madison in Federalist 39, who said that our form of government ''is, in strictness, neither a national nor a federal Constitution, but a combination of both.''
Madison's word ''combination'' is the key. The federal principle is a ''great discovery'' because it is a combination like an alloymy term not his. We create alloys because we want to combine the advantages and avoid the weakness of two different things. We fuse copper and zinc to create brass because brass is harder, more malleable and more ductile than copper. We create steel alloys for the same reason. The federal system is an alloy. It not only makes us strong as a nation, it also allows us to be diverse and flexible, to experiment. It thereby increases our freedom without destroying our national unity. Tocqueville was right; it was a ''great discovery'' of modern political science. Let us preserve it.
THE RIGHT WINNER
I am here to speak in defense of the electoral vote system because it is a device to produce the right winner. Let me quickly interject that I defend the electoral vote system, not the office of elector. The office of elector can and should be abolished, but not the electoral votesthey can be cast automatically. As the system has operated in practice for 160 years, the electors have been mere ciphers. De facto it is a direct, popular federal election.
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Most of those who propose constitutional amendments to change the presidential election system want to abolish the federal principle in process. Their idea of legitimacy is numbers alone. They are head counters who confuse politics and arithmetic. Since it is possible, though not likely, that the electoral vote winner could be the loser in the popular vote contest, they say the process is not legitimate. They fear the system will produce the ''wrong'' winner.
Their definition of the right winner is narrow and simplistic; it is apolitical. The obvious purpose of the election is to fill the office, but that is too simple. If that is all we want we could hold a national lottery and pick a name. Obviously we want a lot more than that. The right winner is the one who fulfills the multiple purposes we have for a presidential election.
First, the system should avoid contingency elections and disputed elections that create a climate for corrupt deals, tempt foreign enemies and shorten the time for the orderly transfer of power. On this point, the current system has proven itself in time and practice. In the 160 years since its almost universal adoption, we have never had a contingency election nor come close to triggering one. Only one election, 1876, has been seriously disputed because of fraud. Non-federal election with the 50% or even a 40% runoff rule would turn the general election into a national primary. And non-federal election would destroy the state unit quarantine on fraud leading to challenges and court supervised recounts of every ballot box.
Second, most of us want to preserve the two party system which has served our national stability by promoting coalition building. It has been the federal winner-take-all rule that has nurtured our moderate two-parties. In a non-federal election the two major parties would lose control over the nominating processtheir life blood.
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Third, the system should produce a president who can govern. For this he should have a sufficient percentage of the popular vote and that vote must be properlythat is federally distributed. The fact that a successful candidate must win states not just raw unstructured votes means he must a create a broad cross-national, federal coalition. Running a sectional, or an ideological or a single issue campaign is a formula for defeat. And the election of 1888 proves the point. The federal principle in presidential elections means that numbers of votes are necessary but not sufficient for victorythe votes must be properly distributed or the winner will not be able to govern.
Fourth, the selection system should preserve the balance between the national local interests. Because the system requires the president to win states, it makes successful candidates sensitive to state and local issues. In non-federal elections we lose this built in sensitizing process.
Fifth, the proper system should preserve the balance of power between the president and Congress. Our federal election does this because it makes power base of the presidency the same as that of the Congress. A plebiscite would increase the power of the presidency in relation to the Congress.
Sixth, the proper system should preserve the federal principle. If the federal principle is illegitimate in presidential elections, why isn't it illegitimate for the Senate? If numbers of votes are all that matters, why should a state with half a million people have the same representation in the Senate as a state with 20 million people? And why should each state regardless of size have at least one representative in the House? Why shouldn't small states have to share a representative with people from other states? And why should each state have an equal vote on Constitutional amendments? An attack on the federal principle in presidential elections is an attack on that principle in the whole Constitution.
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The current system is not perfect, no electoral system is. However, it has successfully served all six of our goals for presidential elections. A non-federal election would serve none of them. Some years ago a student asked me, ''Why does the Electoral College keep winning?'' I was in a hurry and answered quickly, ''Because the federal principle is just as important in presidential elections as it is in the rest of the Constitution.'' Today I say to you: ''because, from the perspective of our Constitution, it produces the right winner.''
Mr. CANADY. Professor Amar.
STATEMENT OF AKHIL REED AMAR, PROFESSOR, YALE UNIVERSITY LAW SCHOOL
Mr. AMAR. Thank you, Mr. Chair. My name is Akhil Reed Amar. I teach constitutional law at Yale Law School, where I currently hold the Southmayd Chair. It is a great privilege to be here today to discuss proposals for Electoral College reform.
I consider the so-called Electoral College a brilliant 18th century device that cleverly solved a cluster of 18th century problems. But as we approach the 21st century, we confront a different cluster of problems, and our constitutional machinery of presidential selection does not look so brilliant. Is it possible today that this once brilliant device has become a constitutional accident waiting to happen?
In asking this question, I'm aware that we must be extremely careful about constitutional amendments; that the current system seems to function tolerably well. But a car with a defective air bag might seem to run quite well until there is a collision. Should a prudent owner wait until after the collision to fix the flaw? Of course not. The time to act is before the accident. And this, I submit, has been our unfolding constitutional tradition on the vital issue of who should occupy the Oval Office.
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Of the 15 amendments proposed and ratified after 1800, no fewer than five have directly adjusted the original Electoral College system, and four more have indirectly modified the system by federalizing the right to vote in presidential elections. Had we rejected all reforms of the original system, political parties would have had trouble evolving the current ticket system; residents of this city would remain constitutionally expelled from the Electoral College; and blacks, women, and young adults would have no Federal constitutional right to vote for President on equal terms with everybody else.
Let's, then, turn to the logic that gave birth to the Electoral College 200 years ago and consider whether this logic still holds. The framers emphatically did not want the President dependent on the legislature, so they rejected a parliamentary model in which the legislature would pick its own leader as prime minister and chief executive officer.
How, then, to pick a president? The visionary James Wilson proposed direct national popular election. But the scheme was deemed unworkable, for three reasons.
First, very few candidates would have had truly continental representations among ordinary citizens. Ordinary folk across the vast continent could not have enough good information to chose intelligently among national figures.
Second, a populist presidency was seen as dangerous, inviting demagoguery and possibly dictatorship as one man claimed to embody the voice of the American people.
Third, national election would upset a careful balance of power among States. Since the South didn't let blacks vote, southern voices would count less in a direct national election. A State could increase its clout by recklessly extending its franchise. For example, if, heaven forbid, a State let women vote, it could double its weight in a direct national election. Under the electoral college system, by contrast, a State could get a fixed number of electoral votes whether its franchise was broad or narrow; indeed, whether or not it let ordinary people pick electors at all.
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Those are the original arguments. None of these arguments, in my view, works today. Improvements in communications technology and the rise of political parties make possible direct election of a populist presidency. De facto, that is our system today. Blacks and women are no longer selectively disenfranchised, thank God. And States no longer play leading roles in defining the electorate or in deciding whether to give voters a direct voice in choosing electors. I was especially happy to hear the remarks of the president of the League of Women Voters on this point.
The national election would encourage States to encourage voters to turn out on election day. But this hardly seems a strong reason to oppose direct election. Ingenious, indirect, sophisticated arguments made on behalf of the Electoral College by clever theorists these days are legion. I think we have just heard some very ingenious arguments. But, in my view, almost are all make-weight. If the scheme is so good, why doesn't any State or any foreign nation copy it, say, for election for governor?
A low plurality winner in a three- or four-way race is possible, even with the Electoral College, and could be avoided in the direct national election by single transferable voting, voters listing their second or third choices on the ballot, in effect combining the first heat and runoff into a single transaction. Alternatively, a runoff could be held on a second day, as envisioned by the LaHood and Campbell proposals now before the committee.
The only two real arguments against abolition of the Electoral College sound in federalism and inertia. Only federalism could explain why we should use an electoral college to pick Presidents but not governors. But it is hard for me to see what the federalism argument is today.
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The specter of the national government administering a national election, I confess, does not give me the cold sweats. A razor-thin popular vote margin might occasion a national recount. But States now manage recounts all the time, and new technology will make counting and recounting much easier in the future. And this is, by the way, a problem you can have under the current system. Even if there is a clear national popular winner, the current system might require recounts in a number of closely-contested States if the electoral college is close.
Inertial, Burkean arguments take two forms. And here I will end. First, the argument goes, a change in presidential selection rules would radically change the game in ways hard to foresee. I think this is what Representative Hyde was saying, and Professor Best. Candidates would not care about winning States, only votes, and campaign strategies might change dramatically and for the worse. But it is hard to see why, given that historically the Electoral College leader has also tended to be the popular vote leader, the strategy for winning shouldn't change dramatically if we switch from one measure to the other.
This sets up the final inertial point. The dreaded specter of a clear popular loser becoming the Electoral College winner has not happened in this century. Why worry? But that's what someone might say after three trigger pulls in Russian roulette. One day we will end up with a clear loser President, clear beyond any quibbles about uncertain ballots. The question is, will this loser/winner be seen as legitimate at home and abroad?
If our modern democratic ethos, when focused on the thing, would balk at a Byzantine system that defines the people's choice on election day, true Burkean theory would seem to argue against the Electoral College. If we the people would want to amendment the Constitution after the loser President materializes, and I tend to think we would, why are we now waiting around for the inevitable accident to happen?
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Mr. CANADY. Thank you, professor.
As you have heard, the bells have been ringing, so we have a vote on the floor of the House. We are going to have to recess for a few minutes while we go to the floor and vote, but we will come back. I understand there is just going to be one vote. We will come back as soon as that vote is concluded and continue with the hearing.
Mr. CONYERS. Mr. Chairman, is it true that the vote is on adjournment?
Mr. CANADY. It is a motion to adjourn. Someone must be unhappy. We have had a month off, and they want to adjourn already. I do not quite understand that, but it is the way things work around here sometimes.
The committee will stand in recess.
Mr. CANADY. We are facing another series of votes in about 45 minutes which will be quite an extended series, so it is my hope that we will be able to conclude the hearing before that series of votes. I do not want to cut anyone short. And I certainly do not want to cut any of the members of the panel or the Members short on having the opportunity to ask questions. But I think if we can accomplish that, that would simplify life for everyone.
Page 53 PREV PAGE TOP OF DOC I understand that Professor Berns needs to be gone by noon. You certainly can go next. Although we are going to get to you before noon in any event, because Mr. Gans probably will not take much more than 5 minutes.
STATEMENT OF CURTIS GANS, DIRECTOR, COMMITTEE FOR THE STUDY OF THE AMERICAN ELECTORATE
Mr. GANS. Thank you, Mr. Chairman. And thank you and the committee for inviting me to participate. I hope to be a little more than clever than my colleague to my right suggested and perhaps somewhat moderate in giving reasons.
I think this committee faces two sets of questions. One question is promulgated by the legislation, which is, should we eliminate the Electoral College and substitute direct elections? To that question I would give an unequivocal ''no.''
The second question is whether there are any improvements that could be made to the Electoral College system. And to that question, I would give a qualified ''yes.''
I think I should start with two questions: What do William Jefferson Clinton, twice; John F. Kennedy, Harry S. Truman, Woodrow Wilson, Abraham Lincoln, Andrew Jackson and eight other American Presidents have in common? The answer to that question is, none of those people received a majority of the votes cast in the election which elevated them to President.
Page 54 PREV PAGE TOP OF DOC The second question is, what does every President, at least from 1824 to the present, have in common? And that is essentially that none of them received a majority of the eligible vote or even came close to receiving the majority of the eligible vote.
Which is to suggest that our Republic has thrived and perhaps prospered despite the fact that we have had minority Presidents, people who have barely scratched the surface of a substantial plurality of the eligible vote, and those three cases in which possibly people were elevated to President who had less votes than a competitor. I am not at all convinced that we would thrive and prosper should we move to direct elections.
The arguments, to my mind, against direct elections begin with the incentive structure it creates: in essentially five words, manipulation, grassroots engagement, pluralism, participation, and federalism.
I would argue that probably the worst thing that has happened to the American political system is the coaxial cable. It is surely the worst thing that has happened to the conduct of American politics. But what the incentive system of a direct election would create is an incentive to rely totally on television advertising to the exclusion of everything else in the conduct of campaigns. It would be a simple nationally cost-beneficial election based on polling for likely voters and slicing that poll to create the ads for which a majority might vote.
That would make our political system increasingly less responsive because it essentially would make it a contest not between the candidates of the Republican and Democratic parties, but between Mr. Sipple and Mr. Squires and whoever the consultants are, and it would put a premium on the increasingly effective but politically disastrous use of attack advertising. And what we would likely see is what I suggest is the worst of network television competing on the lowest common denominator for the same audience, and the worst of American politics, which is the increasing turn-off of the American voter into a permanently inactive majority.
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This drive to television also means that we would virtually eliminate any grassroots campaigning. If it is most cost-beneficial to spend all your money on television in a direct election system, it is also cost-beneficial not to spend money on grassroots activity. Because grassroots activity is important in creating margins in localities or in States or in regions, it becomes much less important in a national election.
And that, in turn, raises the question of pluralism. Which is to say, a farmer at this point counts for an insignificant segment of the American population in a gross national election. He is extraordinarily important in winning five or six or seven or eight or nine important States in this country. Under the direct elections, you can ignore the farmer. Under an electoral college system, you must address him.
I think that is true of African-Americans. I think Mr. Scott raised that question. Nationally they are 12 percent. In Mississippi they are 40 percent. In New York they are a significant minority. I think I will just in order to meet the time constraints, sort of glaze over two points.
One cannot see, I think, one's vote as making a difference, and that is a major question in an election decided by several million votes. I think they can make a difference in a State in which it is decided by a few thousand votes. And we have had more examples of the last in States than we would likely have on a national basis.
I very strongly support the principle of federalism; and, undermining federalism would be direct elections.
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I would just like to raise the three revisions that I would like to see in the Electoral College, or at least the three questions that I think ought to be addressed.
One, I think we need to get rid of the human elector. We have not had a situation in which there is a close election which could be decided by a faithless elector, but we could, and I think that needs to be dealt with.
I think the staff of this subcommittee raised another important question. Which is, we do not have a method of dealing with the succession should a President-elect die between the time of the popular vote and the Electoral College vote.
And, thirdly, I think for all the reasons with the incentive system toward the Electoral College, I think we should seriously consider not as a constitutional amendment but as State legislation the method of choosing electors that Maine and Nebraska have, which are two at-large electors by the State and the rest by congressional district, for all of the reasons of the incentive structure.
Thank you very much.
[The prepared statement of Mr. Gans follows:]
PREPARED STATEMENT OF CURTIS GANS, DIRECTOR, COMMITTEE FOR THE STUDY OF THE AMERICAN ELECTORATE
Mr. Chairman: I would like to thank the Chairman and this Committee for the opportunity to testify on this arcane but important issue.
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My name is Curtis Gans and I helped found and have for the last 21 years directed The Committee for the Study of the American Electorate, a small non-partisan, non-profit organization whose primary mission is to explore, explain and try to correct the increasing disinclination of the American citizen to participate in our democratic processes.
There appear to me to be two questions confronting this committee:
1. Should the indirect method of electing Presidents through a state-based electoral college be replaced by direct elections in which a simple plurality or majority of voters determine the winner? and
2. If not, could the present electoral college system be improved?
The answer to the first is an unequivocal, ''No.'' The answer to the second is a qualified, ''Yes.''
The arguments for direct elections seem superficially to be clear and persuasive:
Should not every citizen's vote be equal and what better way to insure that equality than direct elections?
Should the nation not protect itself from the possibility of a President elected by a minority of those voting?
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Should the our laws not recognize that a demagogue, in third party guise, could throw an election, under present Constitutional rules, into the House of Representatives and thus make a mockery of the ballots cast that November?
But while these arguments are powerful, they are not compelling. Let us examine begin the examination of why with two questions:
What do William J. Clinton (twice), John F. Kennedy, Harry S. Truman, Woodrow Wilson, Abraham Lincoln, Andrew Jackson and eight other American Presidents have in common?
The answer is that each received less than a majority of the votes cast in the election which elevated him into the White House?
What does every elected President, at least since 1824, have in common?
The answer is that none received a majority of the eligible adult population living at the time they were elected and most received less than two-fifths of that possible vote.
This nation and its political system has survived and one might say prospered despite the electoral college, despite several Presidents who did not get a majority of the votes cast, despite one (Rutherford B. Hayes) who was elected while receiving fewer votes than his opposition and despite the fact that no President, at least since 1824, has received a mandate of a majority of his fellow eligible citizens.
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It is not at all clear that the Republic would survive as well in a system of direct elections.
The case for keeping the indirect approach to electing Presidents represented by the electoral college is not nearly so simple and clear as the case for direct elections, but it is, I believe, more persuasive and compelling.
It rests on five concepts: manipulation, grassroots engagement, pluralism, federalism and participation. A few words about each:
1. Manipulation: The central question in the creation of any system of election is its incentive structurewhat activities it encourages and what it does not. Arguably the worst thing that has happened in the modern era to the conduct of American politics is the coaxial cable and the free rein it has given political consultants to pollute our airwaves with attack ads every bienniumdriving up the cost of campaigns, driving voters both from the polls and increasingly from respect either of political leadership or the political process as a whole.
While even with the electoral college, increasingly the bulk of campaign resources are poured into televised political advertising, direct elections would insure that all monetary resources would be poured into such advertising. There would be virtually no incentive to try to mobilize constituencies, organize specific interests or devote any resources to such things as voter registration and education. The result of direct elections is that campaigns would be run on the basis of polling the gross number of likely voters across America and targeting television messages to their interests and views. Our election would, in essence, not be a contest between two putative Presidents, but rather between two would-be king-makersSquiers vs. Sipplein a race to the bottom to see who can do the better job of turning off the other's potential voters.
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What we would have is a political system that combines the worst of network television with the worst of the modern campaign. Network television, as one may note, devotes three hours every evening to pursuing precisely the same audience with precisely the same unedifying fare of sit-coms, shoot-em-ups and disaster series aimed, so they believe, at capturing the biggest share of the widest possible audience. Which may, in turn, explain the decline in civic literacy and, more recently, in the age of cable and satellite, the decline in network viewership. Couple that with the unrelentingly demagogic negative tone of the political ad campaign and we have a recipe for not, in my friend Newt Minow's words, an intellectual ''wasteland,'' but a political wasteland of citizens permanently tuned out to politics.
2. Grassroots engagement: The same incentives that would, under a direct election system, propel all campaign resources into television advertising would virtually eliminate any resources devoted to grassroots and citizen involvement. Under the electoral college, there is a strong incentiveat least in some statesfor campaigns, interests and others to organize groups on the grassroots level because some of those groups may be determinative in winning state electoral votes. It is no secret that advocacy and organization among the elderly produced a Clinton electoral victory in Florida. It is in the Republican Party's interest to organize Christian conservatives in the south to offset the Democratic Party's advantage among African-Americans in the region.
But it is unlikely that were the nation the only base of votes that any campaign would find it cost-effective to devote any resources to organization and involvement and that, in turn, would undermine the already declining base of political participation and American pluralism.
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3. Pluralism: The success of American democracy has rested, in part, on achieving a balance between the will and desires of the majority of Americans and recognizing the rights and needs of various minorities. The electoral college serves to protect the latter in national politics.
To take the most obvious example, the number of farmers in the United States has dwindled so precipitously that nationally they are no longer a serious numerical factor in electoral outcomesdespite the fact that most of the food we have on our tables is due to their individual and collective effort. In a system of direct elections, their concerns could easily be ignored. But because their votes are critical to winning electoral votes in several mid-western and western states, their needs must be addressed, their views must be solicited, their allegiances must be competed for.
The needs and aspirations of America's African-American population could easily be ignored in a direct election. They comprise perhaps 12 percent of the eligible electorate. But in several Southern states, they account for nearly a majority of eligible citizens and they comprise a significant and, perhaps on occasions, pivotal minorities in several northern states. The electoral college insures, in national elections, that their views must be taken into account.
Union members, Christian fundamentalists, Latinos, rural denizens are but a few of the significant minorities whose views and needs might be ignored if campaigns were totally nationalized.
Page 62 PREV PAGE TOP OF DOC American governanceand the durability of its lawsderives its strength, not from the one-time expression of a national will, but from the coalescence of disparate interests into consensus. Direct election promotes a national will. The electoral college is one of the instruments for forging coalition and consensus.
4. Participation: The undermining of both grassroots activity and pluralismmobilization and sub-party level engagement cannot but have a negative effect on participation. So too will the aggregation of votes solely on a national level.
In most analyses of this period when over the last 36 years we have had a nearly 25 percent decline in voting nationally and nearly 30 percent outside the souththe longest and largest sustained slide in the nation's historyone of the reasons has been the growing disbelief of citizens in the efficacy of their votewhether that votes will make any difference, both in election outcome and policy result.
In this age of intense polling, where the movement of national numbers in the Presidential horse-race is tracked more intensively and surely more publicly than the heartbeat and blood pressure of a patient in intensive care, it will become increasingly difficult for the citizen to see how his vote will make much difference in a national electorate in which the margins of victory are usually in the millions of votes. It is much more likely that a citizen will see, in most jurisdictions (the District of Columbia excepted), that the citizen might see his or her vote making a difference in the hundreds or thousands which determine the allocation of electoral votes in individual states. In a sense the existence of an electoral college enhances both the perception and reality of electoral competition, where direct elections acts in precisely the opposite direction.
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5. Federalism: There were times, particularly in the 1960's, when those who supported segregation of the races tended to use the cover of state's rights to mask their desire to keep African-Americans in their place, when the structure of American federalismthe diffusion of power between the national government and the states and localitieswas called into question.
More recently, however, there is a bi- or multi-partisan consensus that perhaps the idea of states and localities might be a good onethat the administration of many programs is better handled at levels closer to the citizenry, that the states do serve as innovators and laboratories for useful, productive and, particularly in the cases of welfare reform and crime control, better public policy solutions than the national government can formulate.
In national politics, the instrumentality which forces consideration of federalism is the electoral college, mandating the gathering of votes by states, forcing the engagement of state leaders and party organizations and concern about state and local issues. We sacrifice that, I believe, to the detriment of the welfare of American democracy.
Supporters of direct elections usually cite polls to buttress their positionpolls which show a majority of Americans support direct elections. But I would venture to say that none of those polls raise the consequences of direct elections in the questions that are asked. Were the public asked not only whether they desired direct elections but whether they desired direct elections even if it meant campaigns only run on television, erosion of grassroots activity and pluralism, declining voter participation and the erosion of federalism, the results might be very different.
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Our founding fathers may not have had the best reasons for adopting an indirect system for the election of Presidents. They had too much fear of and too little faith in the demos. But that system, with its various modifications over the years, has served this nation well and should not be replaced.
The second questioncould it be improveddeserves a qualified, ''Yes,'' because while it could be improved, it should not be replaced and, if tampering, leads to the idea of replacement then it should not be done.
On the other hand, there are three ways in which it can be improved:
We can and should eliminate the human elector. We have had faithless electors in the pastpeople who were elected to cast their ballots in the electoral college on behalf of a Presidential candidate who cast their vote for someone else. These have been, over the years, protest votes which had no bearing on the outcome of the electoral college tally. But while it has never happened and may never happen, there remains the possibility of a close electoral college vote in which one or a few electors casting ballots against the wishes of the electorate can vitiate the popular result in a state and nationally and undermine public faith in American democracy. An Amendment which would eliminate the human elector in favor of the counting of state electoral votes would be desirable.
The staff of this committee raised, during preparation of this testimony, an interesting questionhow does one deal with the succession question should someone be putatively elected in the November election but die before the electors cast their ballots? While this is, again, not a likely occurrence, it is something which should taken account of in law or in the amending process to the Constitution. The staff suggested that the risk of this occurrence might be mitigated by setting an earlier date certain for the electoral college votes to be counted. And while this might be helpful, we also face, in the present electoral context, some limitations to how far toward election day this vote can be held. We now have a situation in which 50 percent of the votes in certain western states are cast by absentee ballots and counted after the election. By my experience and accurate count of those ballots tends to take at least a week, and, should the tally be close in some of those states, the certification of the ballot count may take some considerable additional time.
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Which is to suggest that while it might be desirable to address this statutorily, the safer method may be through amendment that establishes succession to the Vice-President-elect and down the line.
The final change can be accomplished statutorily and in the several states. It is not likely to happen soon because of its partisan implications andin its sponsorship both in the 1960's by the late Sen. Karl Mundt and more recently by a number of Democratsthe partisan motivations of some of its sponsors. But the present method of choosing electors could be improved if every state adopted what Maine and Nebraska already have in placea system in which the selection of electors of every state would be divided. The present electoral college allocates electors to each state on the basis of their apportioned Congressional representation. Each state has two electors for the two Senators each has and additional electors for the number of Representatives each has.
What Maine and Nebraska do is elect the two electors (or choose the electoral vote) representing the two Senators by statewide vote and elect their remaining electors by Congressional district.
This plan has several virtues:
1. It would likely, although not certainly, produce an electoral tally closer to the popular vote than the current statewide system.
2. It would certainly make the individual's vote seem more instrumental in electing the one elector which represents his or her Congressional district.
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3. It would placed an additional incentive towards grassroots activity and organizational engagement in garnering the electoral vote retailby districtrather than wholesale by state.
4. It would end the tendency of parties and campaigns to abandon states and regions when a candidacy is seen as hopelessly behind in the state or region because there would be small amounts of electoral votes to be won.
5. It would further reduce the tendency to rely solely on televised advertising as the means to communicate, mobilize and demobilize voters, because as the competitive playing field becomes smaller, the benefits of television are reduced.
6. It would have the effect of strengthening the parties, by allowing some candidates to run with (rather than against) their party's position on issues in states where those positions might be anathema on a state-wide basis.
7. It would enhance American pluralism by making the votes of significant minorities more instrumental in the overall outcome.
8. And it would have the important, if minor, additional benefit of making it virtually impossible for the television networks to continue their practice of declaring election winners while people are still voting, thus ending the practice of turning away voters in the west and, perhaps, influencing electoral outcomes in races below the level of President.
Page 67 PREV PAGE TOP OF DOC This plan will not be adopted soon because of its partisan implications. When Sen. Mundt first proposed it, it was with the intent of breaking the virtual Democratic lock on Southern electoral votes. Some Democrats are proposing it for the same reason in light of the pro-Republican realignment of that region.
But these alignments, as the recent trend shows, are not necessarily permanent, and the larger question of how we perfect a system of elections which enhances our democracy in this ageby reducing the power of television, increasing the incentives to engagement and pluralism, promoting greater active citizen participation and strengthening our political partiesis something which should be addressed.
In some small, but not unimportant way, this particular revision of the electoral college system would do just that and I would urge its consideration in this Committee's recommendations, partisan concerns notwithstanding.
Thank you again for this opportunity.
Mr. CANADY. Thank you, Mr. Gans.
STATEMENT OF WALTER BERNS, RESIDENT FELLOW, AMERICAN ENTERPRISE INSTITUTE
Mr. BERNS. Thank you, Mr. Chairman. I will be very brief, and not simply because I have to be at the National Archives at 12 o'clock, but largely because whatever I say has already been said, in part, by Mr. Scott and by my old colleague, Professor Best, and now most recently by Mr. Gans. I would simply take a couple of points from my statement and emphasize them here.
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First, I fear the public would react differently today if we had a repetition of the situation of 1888. Strangely, or perhaps not strangely, at that particular time there was no great outcry because one candidate won the election but not the popular vote.
Today, I suspect Professor Amar is right, there would be an outcry. And I wonder why that is so. In part, I think, because the moral authority of the electoral college and of the Constitution itself is being undermined by these persistent efforts by Members of Congress to replace the Electoral College with a system of direct popular vote.
I think that is an important point. Why doesn't it carry some weight today to say ''but this is the way the Constitution provides''? Why doesn't that carry some weight with the people? In part, I suggest, because so many Members of Congress, and of course others, have depreciated the importance of the Constitution by calling for direct popular elections.
Then, as I say in my statement, I may be blind or deaf but I have yet to encounter an opponent of the electoral college who argues that a President elected directly by the people will be a better President. That point was made by my old colleague Herbert Storing, alas, no longer with us, when he testified I think in 1977 before a Senate committee. He put it this way:
''To see the case for the present system of electing a President requires a shift in point of view from that usually taken by the critics of the electoral college. They tend to view the elections in terms of input, in terms of right to vote, equal weight of votes, who in fact votes, and the like. The Framers of the Constitution''and this is absolutely clear in the debates in the Constitutional Convention of 1787''The Framers of the Constitution thought it at least as important to consider the output of any given electoral system. What kind of men does it bring to office? How will it affect the working of the political system? What is its bearing on the political character of the whole country?''
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Those, the framers thought, were important questions; and this Electoral College that they came up with may not be perfect, but they came up with it with these questions in mind. Consider the output of elections, not simply the input.
Another thing, and I will end with this, what would be the effect, the probable effect, and here one is speculating, we can all just speculate, but what would be the effect of replacing the present system with a system of direct popular elections with a provision for a runoff?
Under the Electoral College, I am now reading from my statement, the independent or third-party candidate, Ross Perot, for example, must win at least a plurality in at least one State to have any electoral effect. And that is likely to happen only in the case of a candidate with strong regional support. Otherwise, the argument goes, a vote for an independent candidate will be wasted. Thus, even George Wallace, who in 1968 mounted the most successful third-party bid for the presidency in a half century, watched his support fade from a high of 23 percent in a September opinion survey to 13.5 percent in the November election, at least in part because voters realized or took account of this wasted vote argument.
But that argument would carry no weight whatever if we were to scrap the Electoral College in favor of direct popular elections. The supporters of a third party or independent candidate would have reason to vote for him or her in November, especially if, as if the case of Ross Perot, their candidate enjoyed considerable popularity. Instead of being wasted, their votes would almost surely prevent either of the two major party candidates from winning 40 or 50 percent of the popular vote and might even ensure their candidate a place in the runoff.
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At this point, the real contest would begin, all of it being waged behind the scenes as the two finalists compete, deal, trade, or bribe for the support of the third-party finisher or the third-place finisher, whether Bob Dole, Bill Clinton, or Ross Perot. Add the fourth-place finisher, for example, David Dukeand in a direct popular election his, say, 5 percent of the vote might well earn him a place at the table and with it a share of the bootyand we could have a system similar to the worst of those southern gubernatorial contests of the past in which the winning candidate was required to pay a bigot's ransom.
That is all. Thank you.
Mr. CANADY. Thank you, Professor Berns.
[The prepared statement of Mr. Berns follows:]
PREPARED STATEMENT OF WALTER BERNS, RESIDENT FELLOW, AMERICAN ENTERPRISE INSTITUTE
In 1981, I began an article The Wall Street Journal by pointing out that ''where the Electoral College is concerned, nothing fails to succeed like success.'' What was true then is true today. In 1996, as in 1980, the Electoral College produced a clear and immediately known winner; in 1980, and in each ensuing election, including that of 1996, it gave us a constitutionally legitimate President. Yet once again, by succeeding rather than failing, it failed to silence its critics. Why can't they leave well enough alone? Why must they tamper with the Constitution? Because, they say, the Electoral College is ''dangerous,'' and not only dangerous but ''undemocratic.''
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The danger is said to consist in the possibility that a candidate might receive a majority of the electoral votes while receiving fewer popular votes than his or her opponent. That happened in 1888, and it is always possible (although unlikely) that it could happen again. But what if it did? Have we reached the point where the Constitution, alone, is incapable of lending legitimacy to an office? Where the right to hold an office depends solely on the suffrage of a popular majority? (I remind the members of this subcommittee that our greatest president, Abraham Lincoln, won a mere 40 percent of the popular vote in 1860.) Are the sponsors of these proposed amendments willing to say to the people that a candidate elected with a constitutional but not a popular majority is an illegitimate president? The reformers (perhaps including the sponsors of these amendments) speak of this popular-vote-electoral-vote discrepancy as a ''time bomb waiting to go off,'' but the one time it did go off, in 1888, nothing happened; there was hardly a ripple of popular discontent, no complaints from the losing candidate, Grover Cleveland, that he had been cheated, no spate of editorials claiming that Benjamin Harrison was an illegitimate president. Unfortunately, I fear the public would react differently today, largely because the moral authority of the Electoral College-indeed, of the Constitution itselfhas been undermined by these persistent efforts by members of Congress to replace it with a system of direct popular elections.
Undemocratic? What is undemocratic about a system of one man, one vote, and the majority rules? Admittedly, the majority rules at the state level where (except in Maine and Nebraska) the votes are aggregated, but that is where the vote of any particular minority looms larger, or carries more weight, than it is likely to do in the country as a whole. So long as a minority is not distributed evenly throughout the country, but is concentrated within particular states, it is in its interest to oppose direct popular elections; most civil rights leaders have understood this. Is there not something to be said for an electoral system that threatens to penalize a political party and its candidate for failing to respect the rights of respectable minorities? Is there not something to be said for a system that protects the interests of the states as states, which is to say, a system with an element of federalism built into it? only twice in this century (1960 and 1976) has the candidate with an electoral college majority failed to win a majority of the states. And is there not, then, something to be said for a system that threatens to penalize sectional candidates?
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The American idea of democracy cannot be expressed in the simple but insidious formula, the greatest good for the greatest number. What the greatest number regards as its greatest good might very well prove to be a curse to those who are not a part of that number. The American idea, which is expressed in the Declaration of Independence and embodied in various provisions of the Constitution, is that government is instituted to secure the rights of all. What is constitutionalism if not a qualification of majoritarianism?
The men who founded this country surely recognized the entitlements of a popular majority, but, with an eye to the qualifications or qualities required of an office, they devised institutionsthe Electoral College is one of themthat modify or qualify the majority principle. Nothing could be clearer than that the Founders sought free institutions that would protect the country from what has come to be called populism. The organizing principle of the Senate is surely not majority rule, nor are its procedures simply democratic. Federal judges are not elected at all. If legitimacy springs only from the principle of one man, one equally weighted vote, upon what meat do these our judicial Caesars feed? Indeed, if populism is our only principle, why vote at all? What not select all public officials by lot? That is truly democratic, because that and that only, is a system that pays no attention whatever to the qualifications of office holders. In short, what we should be disputing is the issue the Founders disputed, namely, what system is more likely to produce a President possessing the qualities required of the person who holds this office. I may be blind, or deaf, but I have yet to encounter an opponent of the Electoral College who argues that a President elected directly by the people will be a better President.
I turn now to what is likely to happen if we abolish the Electoral College in favor of a nationwide popular election with provision for a runoff between the two top candidates in the event that no candidate receives at least 40 or 50 percent of the popular vote.
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Under the Electoral College, the independent or third-party candidateRoss Perot, for examplemust win at least a plurality in at least one state to have any electoral effect, and that is likely to happen only in the case of a candidate with strong regional support. Otherwise, the argument goes, a vote for an independent candidate will be ''wasted.'' Thus, even George Wallace, who in 1968 mounted the most successful third-party bid for the presidency in a half-century, watched his support fade from a high of 23 percent, in a September opinion survey, to 13.5 percent in the November election, at least in part because of the wasted vote argument.
But that argument would carry no weight whatever if we were to scrap the Electoral College in favor of direct popular elections. The supporters of a third-party or independent candidate would have every reason to vote for him or her in November, especially if (as in the case of Ross Perot) their candidate enjoyed considerable popularity. Instead of being wasted, their votes would almost surely prevent either of the two major-party candidates from winning 40 or 50 percent of the popular vote, and might even ensure their candidate a place in the runoff.
At this point, the real contest would begin, all of it being waged behind the scenes as the two finalists compete (deal, trade, bribe) for the support of the third-place finisher, whether Bob Dole, Bill Clinton, or Ross Perot. Add the fourth place finisher David Dukeand in a direct popular election his, say, five percent of the vote might well earn him a place at the table and with it a share of the bootyand we could have a system similar to the worst of those southern gubernatorial contests of the past in which the winning candidate was required to pay a bigot's ransom.
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I close by quoting from the testimony submitted by Professor Herbert Storing to the Subcommittee on the Constitution of the Senate Judiciary Committee in 1977: ''To see the case for the present system of electing the president requires a shift in point of view from that usually taken by the critics of the [Electoral College]. They tend to view elections in terms of inputin terms of the right to vote, equal weight of votes, who in fact votes, and the like. The framers [of the Constitution] thought it at least as important to consider the output of any given electoral system. What kind of men does it bring to office? How will it affect the working of the political system? What is its bearing on the political character of The whole country?''
If James Madison, Alexander Hamilton, Benjamin Franklin, Gouverneur Morris, and the rest, thought it important to look at output as well as input when designing the electoral system, I think this subcommittee is obliged to do the same when considering proposals to amend it. I doubt that you can come up with a better system than they did.
Mr. CANADY. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman. I, hopefully, will be brief.
To Ms. Cain, I am very disappointed because you are so right on term limits.
Ms. CAIN. As are you, sir.
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Mr. HYDE. Then I guess we are both wrong in each other's mind on this issue. But surely you do not propose to abolish the Senate. You do realized there are some elements of our political life where the numbers are not everything, that regional interests do help keep this country functioning.
Am I correct, you do not propose to abolish the Senate?
Ms. CAIN. No, but I bet I could get some good votes on this side of the aisle to do that. No, sir. The Senate, being one half of the body of Congress in the way it was composed, is indeed a different animal or a different organization, if you will, than the presidency.
Mr. HYDE. Balancing the interests of regions that otherwise would feel very uncomfortable being overwhelmed by urban concerns, which are mass transportation, clean air, better schools, whereas you have other interests that care about the West and about trade, about shipping, about logging. The beauty of this country is the wonderful balancing of all of these interests, especially at the top where a PresidentI can imagine a President never even knowing where Iowa is if we have a popular election. He will know where L.A. is, and New York.
Ms. CAIN. Two things: The Senators are elected to represent the States. The President and Vice President should be elected to represent the American people. And I think therein lies the difference.
Page 76 PREV PAGE TOP OF DOC I would also say to you that, coming from a small State myself, there are States in the union, even with the Electoral College, that do not exist to presidential candidates, that the numbers count in the Electoral College, as well.
Mr. HYDE. Can you see the oriental bazaar going on after the election where nobody gets 40 percent, or 50 percent by Professor Campbell's bill, 50 percent? Can you imagine the phone calls, the negotiations going with Lyndon LaRouche, never mind Ross Perot, Lyndon LaRouche, David Duke, Howard Phillips, Pat Buchanan? It boggles the mind. We would have a Knesset made up of 12 different parties, some of them having inordinate levels of power. Is that good for America?
Ms. CAIN. I would argue that in the States that have runoffs, that they do not have those kinds of situations necessarily; that there are many States who elect their governor and have a runoff situation as such; that this same kind of scenario could happen with the Electoral College. Should I be able to garner a few electoral votes, I would be able to parlay those electoral votes behind closed doors to get what I needed, to give you those, so that when the electors meet I can turn them over to you to vote for your candidacy. So the same kind of scenarios I think unfortunately could happen, I hope would not happen, however, under both systems.
Mr. HYDE. Well, I like the system that recognizes competing interests, differing interests, and that synthesizes them into E. Pluribus Unum. And the President has to take cognizance of, if not defer totally to, differing regions and differing interests. And by having to win this State and this State and This state, I think that consensus is better served and we do get a better candidate who can make more people feel comfortable that somebody knows they are out there and their interests are just as important as New York, Los Angeles, Cleveland, New Orleans, and Miami.
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Lastly, just a comment. You were talking about only a few people vote. I often have been worried about that phenomenon, the light turn-out. The way to get them out is to send them a postcard and tell them their registration has been canceled and they will come out. They get mad at that.
But it is my experience in many years in this game that a lot of people do not vote because they are perfectly satisfied. They are really voting by not voting. They are not unhappy. The status quo does not bother them. It is not worth going out on a November day. We always pick bad weather for election days. So it is sort of a way of voting.
When people come out in big numbers, they are usually angry, they are mad, they want to change things. So it is sort of a vote, but it is not a great credit to our democracy. But I just think balance, regional interests, I think it helped get our Constitution ratified. And we have a pretty good Constitution, and I do not think it is so aberrant that we get a bad President. I think we get a better President. Thank you.
Mr. CANADY. Before I recognize Mr. Scott, I want to recognize our former colleague, Glen Browder from Alabama, who is with us here today. We are glad to see you.
Mr. SCOTT. Thank you, Mr. Chairman.
Page 78 PREV PAGE TOP OF DOC A lot has been made of the mathematical curiosity that you could win an electoral majority without winning a popular majority.
I would ask Professor Amar whether you were outraged when major league baseball awarded the New York Yankees last year's World Series, when they scored 18 runs in the series and the Atlanta Braves scored 26 runs in the series?
Mr. BERNS. He does not know anything about baseball.
Mr. AMAR. I know a lot about baseball, Walter. And one of the things I know is that, although it is the great American pastime, at the end of the day, wait until next year, it does not matter very much who wins the World Series. So the arbitrariness of certain rules that define a game is less troubling if, in the end, the game is just a game as opposed toI agree with Professor Best and I agree with Professor Berns, we are talking about who is going to occupy the most powerful office in the history of
Mr. SCOTT. But you do not see any unfairness in
Mr. AMAR. If I could just finish, I promise I will explain what the difference is.
First of all, we are talking about the most powerful office in the history of the world and that I believe with Ms. Cain that there isand this different for the Senate, I think, Representative Hydethere is a deep sense, and even Walter Berns admitted this, in the American ethos today. It might not have been true 200 years ago, when the Electoral College, I repeat, was all aboutthe fact that the black people did not vote
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Mr. SCOTT. I have just 5 minutes. The fact that the World Series is decided by who wins the majority of a 7-game series, the fact that someone could score more runs and still lose
Mr. AMAR. Because all runs are not created equal. But the deep principle in the ethos is, from Mr. Jefferson to Mr. Lincoln to Dr. King, is that all men and women are created equal.
Mr. SCOTT. Would it bother you if someone were able to win every State in the Union save their home State, and would run up the score in their home State with such a margin that they could win the popular vote, a person who has lost every State in the Nation, but with recklessly expanding this franchise to the point of probable fraud, can run up the score enough in their home State to offset all of the other States? Would that create a better President? I mean, it is a mathematical curiosity. Would you acknowledge that that could happen?
Mr. AMAR. I do not think so. Because, in my testimony, I tried to identify the concern. First, for that to happen, you would have to win 48 percent in all these States that you technically lost, so you are a national candidate. You have not just targeted a few places. But I do agree with you
Mr. SCOTT. You could lose every State in the union, run up the score in your home State
Mr. AMAR. I do agree with you that if you are going to move to this system, you have to be prepared to have the national government administer a national election in order to police against fraud.
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Mr. SCOTT. If we went to a direct election, what are the chances that the campaign strategy would involve local issues?
Mr. AMAR. Well, here, as with Professor Berns, I agree. It is very hard to speculate. I believe that one of the best predictors, though, of the future is careful examination of the past. My own view, and I admit I cannot tell you with certainty, is that because it happens to be the case, unlike the World Series in the last five, that the person who tends to get the popular national majority also tends to get the Electoral College majority, I do not quite see why changing the rules about how in the end we tally votes would radically change the strategies by which people seek to become President.
Because it is not three out of five, it is none in the 20th century, but because it could happen and because I fear there would be a legitimacy issue if it did. And that is different for the Senate. We do not have two people nationally.
Mr. SCOTT. Mr. Amar, I only have 5 minutes, so I am trying to get some others. The fact that by requiring you to run a national campaign you tend to get the popular vote would not necessarily go the other way. If you are trying to get the popular vote, if you are close enough in the State you are going to just write it off and not worry about it, and just run up the score in your hometown.
Ms. Cain, how would the campaigns be run different in a popular election than when you have to run State by State?
Page 81 PREV PAGE TOP OF DOC Ms. CAIN. I must agree with my colleague on the table that I do not see that they will change much differently at all. I will say that we have a national election right now, that right now you do not have a lot of local issues discussed. They may be in the State but they do not pay much attention to local issues. In fact, I would argue that a lot of issues are not discussed in the campaigns at all, so it is hard for me to defend this current system saying that it is issue-based. I would say that the Federal election of the President is very rarely issue-based, and the issues that the people care about, by and large, are the same across the country.
So I see the concentration in big States, populous States, but those are the States with the highest electoral college. I do not see that changing much. If California has got 54 electoral votes, you need those votes, you could be in California. If that is where the majority of the people live, you are going to be in California. If Texas is good, you go to Texas. If Illinois is good, you go to Illinois.
Mr. SCOTT. The difference is a lot of States are locked up because the people take positions. One candidate will clearly have the advantage in farm States because of the issues they have taken in farm States. Were they not to take those positions, you could have States that are generally Republican or generally Democratic all of a sudden put in the battleground status because the candidates did not take positions.
I mean, you cannot run a campaign in Florida without taking strong positions on issues addressing the elderly. You are just not even a candidate in the farm States without a strong farm agenda. And once that is set and you see where the candidates are, you do not have to repeat it because one candidate is running away with one State. You cannot do that. If a Republican were trying to run in Kansas without taking positions on farming issues, all of a sudden that would become a battleground State. So some of the issues, although they are not repeated, I think they are somewhat inherent.
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Could you, Ms. Best, say something about the involvement of third, fourth, fifth, and sixth party candidates and what they would do in elections, or a coalition of candidates on a narrow agenda and what they could do to an election? They would have no impact in a national election.
Mr. CANADY. The gentleman's additional time has expired. What I am going to try to do is go through a second round if the time permits, but I want to give all the Members a chance.
Mr. BARR. Mr. Chairman, I notice one of the witnesses is leaving. Could I ask unanimous consent to mention one thing while that witness is still here that relates to his testimony?
Mr. CANADY. Without objection, Mr. Barr will be recognized.
Mr. BARR. Mr. Berns, if you could hold on for just a moment, I would respectfully ask you to refrain from what seems to be something that a lot of people fall prey to, and that is singling out the South as the only part of the country in which we have had corruption in government.
I would respectfully suggest that you might check some of your northern States where they have had governors in recent history and a long time ago sent to jail for various frauds. Boss Tweed was not from Mobile or Atlanta. He was from New York. Mayor Curley was not from Mobile or Jackson. He was from Boston. There has been, as recently as yesterday in the news, a governor not from the South who was convicted of fraud.
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So I do not think this really should be cast as an argument where, if we go this way, we are going to see a resurgence of southern corruption in government. And I think that is really very unfair to the men and women of the South who have elected long histories of very, very enlightened and good candidates to public office.
Mr. BERNS. Mr. Barr, I apologize for my statement, which I suppose could be read as you read it, as an insult to the South. I certainly did not mean that. I meant only that I have knowledge of these gubernatorial runoffs down there that had that result. As to the corruption, I am from Illinois originally.
Mr. BARR. I was not going to mention the name of Kerner.
Mr. BERNS. We may not have much interest in World Series games, but we know about elections.
Mr. BARR. Thank you. Thank you, Mr. Chairman.
Mr. CANADY. If you want to continue for the 5 minutes.
Mr. BARR. Well, I appreciate the Chair's indulgence.
I just have one brief statement. I was not here for all of the testimony, but I have leafed through and intend to review all of the testimony. My only observation would be that I really do not think that the reason we have good or bad government in America or the reason the people pay attention or do not pay attention to elections or the reason that we have a certain quality of candidate or do not have a certain quality of candidate really has anything at all to do with the electoral college. And I think arguments to that effect really are somewhat mystifying.
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I doubt that if you ask most Americans, even those that are registered to vote, and we know that far too far are, or even if you pose the question to those who vote, which is an even fewer number, that they would tell you that they voted or did not vote because we have an electoral college.
I do know that, in talking to people from across my district, there is some interest in the Electoral College from the standpoint of questions posed to me constantly: ''Why do we have it?'' And while there are some very interesting historical arguments which have been gone into here today, which I think accurately reflect to at least some extent why it was discussed and why it came up and why it was enacted over 200 years ago at the time that it was placed in the Constitution, those things really do not exist today.
And I do not think we are talking about a fundamental principle of law, such as in our Bill of Rights, so that there is something sacrosanct about the Electoral College. I think it was placed in there for very practical reasons, very political reasons, very demographic reasons. And I really do not think that we ought to shy away from looking at that, insofar as it does not involve anything I think even approaching a substantial fundamental principle on which our country was founded, such as we see in the Bill of Rights or whatnot.
So I think it is very healthy to look at this. And I will be happy to go back to my constituents at town hall meetings when this question does come up and tell them that we are looking at it, and that probably it is something that is worthy of amending in favor of something that is somewhat more direct, and in which I think we ought to be doing everything we can to increase people's interest in the electoral process in this country.
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And whether or not doing away with the electoral college in favor of majority popular vote will increase the quality of candidates, increase the level of public discourse on issues, I do not know. But clearly, it isn't going to hurt it because it is at an all-time low.
So I really think this is a very healthy amendment that we are looking at here, something that is proper for us to look at and that I probably will be supporting. And I appreciate the panelists today discussing this and bringing their background and discussion of the history of this to the floor.
And with that I yield back, Mr. Chairman. Thank you.
Mr. CANADY. Mr. Bryant.
Mr. Bryant. Thank you, Mr. Chairman. I, too, was struck the way Mr. Barr was with these references to the South and I think that has been adequately discussed. I would say I am fairly thick-skinned on that, but again, it does concern me that we continually use the South as a bad example.
Certainly there were things that happened in the South, and they are all around the country unfortunately.
I do want to thank the distinguished panel for being here today. I would make a terrible judge, because every time I hear one of you speak, I think you are right; and then the next one comes along, and, well, no, you are right. I think we had 3 to 2. So maybe I would side with the strict constructionists, I guess, who want to keep the Constitution as it is.
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I am affected by Professor Best and Berns and the other gentleman's argument that we have to take the Electoral College in the context of the Constitution, from the perspective of the Constitution, and certainly the position that not only do we want to look at the input, but the output, the result. I think those are strong factors. And in spite of the fact that there are a number of constitutional amendments that had been proposed over the last few years, I guess that is fairly common up here, I personally do support amending the Constitution only in rare situations, although I am not sure my voting record really shows that either.
If I had to vote now, I would probably vote with keeping the system the way it is. But the one thing that causes me concern, and like Mr. Barr, when I go to town meetings, this occasionally comes up, is this issue that Ms. Cain, Professor Amar raised about what are we going to do when we do have that election. How are we going to explain this to the American people? And I know this has happened once before maybe, or maybe two or three times.
Ms. Cain cited several examples that if there had been a little slight turn in this vote in California or here or there, that somebody would have won who lost the popular vote by well over a million votes. How are we going to explain that? It would be bad enough if it were a close election, but if it is an overwhelming popular vote the other way, and we come in and say, wait a minute now, that person really did not win because of the Electoral College.
Again, I understand the perspective of the Constitution, why it is in there, but we are going to be put in the position of trying to explain that to the American people, who still think the law is one man, one person, one vote rule. And it is everywhere but here it seems like, and that is because it is written in the Constitution, and the court cannot change it. How are we going do that? And should we have to do that? Mr. Berns and Professor Best, maybe you are the ones to address that in that situation where there is an overwhelming popular vote the other way, but the person is denied the election.
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Ms. BEST. Walter has left us.
Let me address this in the following way: First of all, there was only one case, and the election verged on a tie. In 1888, the margin between two candidates, neither of whom received a majority of the popular vote, was eight-tenths of 1 percent.
How do we explain this to the American people? Well, I think we explain it to them in the same way that we explain the Presidency of Gerald Ford. Not a single popular vote was cast for Gerald Ford for President. Gerald Ford succeeded to the Presidency on the resignation of his predecessor, who nominated him. Gerald Ford was confirmed by the Congress of the United States under the 25th Amendment.
As for the shift-in-votes argument, gee, that is a swell parlor game for academics. I mean, it really is good fun. I understand it. I enjoy it, along with everybody else, but when real folks, who ordinarily have common sense, get sucked into this, I think it is time for a reality check. And it is this: What they do is move voters from one column to another, random numbers, without giving you any explanation as to why the vote would change only here and not there.
One recent shift-in-votes scenario that I saw said that Michael Dukakis would have beaten George Bush if there had been a shift of 1 percent of the popular vote aggregated nationally, but it would have to have fallen into 11 different States. And the margins were something like 1.6 percent change in California, 4.9 percent in Michigan; 11 different scenarios like this, with no explanation as to why these precise, and only these precise, figures would hold. Which is to say, if Glinda, the Good Witch of the North, waved her magic wand. I would not want one of these guys to be my stockbroker. He would say to me, if X number of people buy this stock, and Y number of people buy that stock, and Z number do neither, on a given day, you can make money. I cannot tell you why this would happen, but just look at my numbers.
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Mr. CANADY. The gentleman's time has expired. Do you wish additional time?
Mr. BRYANT. Two minutes.
Mr. CANADY. The gentleman will have 2 additional minutes.
Mr. BRYANT. Mr. Gans, I apologize to you. The name was lined up incorrectly. If you could briefly maybe answer a minute and let the other side sort of respond briefly.
Mr. GANS. I think, first, it would be difficult to explain because we now have a national media that makes scandal out of minor tempests.
On the other hand, it is also a scenario that is terribly unlikely, the scenario you said, which is a million or so votes. It is possible with a lesser number. We tend to havewhen that is going to occur, it is going to occur with lesser numbers. If it occurs, I think you have to defendyou can indeed defend the system on the basis that I defended the system in my testimony, as Professor Best did, as the Chairman of the committee has, which is we are electing a President who is not simply an arithmetic leader, but a leader of the whole of our country.
I would like to add one other thing, which is I did not go into detail about the suggestion in the last part of my testimony, but that would get us closer to having the electoral result reflect the popular vote.
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Mr. BRYANT. Thank you.
Ms. Cain or Professor Amar, would you like to counter?
Ms. CAIN. I do not know how we would explain it, and that is one of the major concerns. I do not know how we tell somebody, you cast your ballot, but it really does not matter. I certainly wouldn't want that job.
In terms of looking at can it happen, can the person who wins the majority of the popular vote be elected President of the United States, the answer is yes. It has happened. And in terms of looking at data to indicate that it can happen again, I have given you statistics. For example, in 1916, it would have only taken 2,000 votes in California to have made that happen. Now, you know, to say that that is a game or a trick, it has happened, it can happen, it did happen, and it may very well happen again.
Mr. AMAR. I share the concern. It is what drives my testimony that it would be hard to explain. Gerald Ford is easier to explain because we have internalized an idea of apostolic succession. You vote for Nixon, and if he cannot serve it out, then basically someone hand-picked by him does, either his running mate, who was hand-picked by candidate Nixon, or something happens to that person, someone else, a kind of apostolic succession, which is what the 25th amendment constitutionalizes and people can understand: Okay, I'm picking this guy; and if it is not this guy, it is going to be his hand-picked successor.
So I actually think that is easier for folks to understand. I think they can understand the Senate precisely becausewhich it can create all sorts of similar discrepancies, because you do not have the same two candidates. You have parties, but 50 different sets of candidates and 50 different States. So there is not this easy aggregation that everyone in America is voting for the same two people, and the guy who won seems to have lost.
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So this legitimacy idea, which is this internalization of one person, one vote, which is not what we think about with runs in baseball, it is not sort of all runs are created equally, creates a certain sort of legitimacy concern. This is not the only one. There are some other accidents that have happened.
Mr. CANADY. The gentleman's additional time has expired. I recognize myself now for my 5 minutes.
Let me ask about the issue of the impact on the two-party system of a change towardto direct election. Could you comment on that, Professor Amar, and also Ms. Cain? Would you try to relate it specifically to the two proposals that are before us, one that would have the 40-percent requirement and the other that would have the 50-percent-plus-1 requirement?
Mr. AMAR. I think Professor Best raises a very important concern with her concern about runoffs, and third parties, even if they could not win, could become kingmakers because of the runoff. For that reason, Ms. Cain, I think, has properly said this issue can and does arise in State gubernatorial elections and has not been a big concern.
My only preference, actually, would not be for the 50-percent cutoff, for the reasons we have talked about, nor even for the 40-percent cutoff, but a thing called single transferable voting. You go 1 day. You have first choice, second choice, third choice. When you go, you vote for Perot if he is your first choice candidate, but then you list who your second choice would be. If Perot drops out after we tally the first round, then you decide. In effect, we fold the runoff into Election Day.
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And ordinary people have said this complicates the ballot too much, but when I go to the grocery store and my wife says, pick up this brand, and if they do not have this brand, get the other one, I can understand that. And in effect that is what we do in a two-stage process, when we have an ordinary election and then a runoff.
I think the easiest thing to do to avoid some of these concerns is to have a first choice and second choice. And we would not have a Knesset, we would not have anything like all these things like back-door, behind-the-scenes king-making conversations, which we can have actually with the electoral college and is one of the other possible accidents waiting to happen; Perot trying to decide did he become kingmaker by dealing with you all, it got thrown into the House of Representatives, or dealing with the electors directly.
Duverje's law, which is a fundamental law of political science and has been confirmed by Doug Ray in a powerful book on the political consequences of election law, says, basically, if you have got only one office and long-term equilibrium, you are going to have two parties for that, and they are going to be the same two parties nationally if you have a ticket system as we have. But single transferable voting would basically preserve the integrity of a two-party system and avoid the runoff scenario that I think Professor Best properly puts on your agenda.
Mr. CANADY. Where is the single transferable voting system used?
Mr. AMAR. It is very common in many Western democracies is to have a first choice, second choice. The Harris system, for example, which is used in many cities around the country, is used in Ireland, is again the first choice, second choice system.
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Mr. CANADY. Would you like to comment on that Mr. Gans? I saw you shaking your head.
Mr. GANS. Well, only insofar as the question I raised in my testimony about television.
Mr. CANADY. Well, I am glad you brought that up, because I do not understand how changing to direct election would move the candidates to utilize television more. They utilize it about as much as I can imagine them using it.
Mr. GANS. Actually, they do not.
Mr. CANADY. Well, they use it selectively. They target certain areas.
In connection with that, just let me throw out another thing here. What about, under the current system, the existence of the so-called ''safe States''? I mean, you can have big States that are safe States that have a lot of people in there, candidates do not go there.
So, I understand that small States may get a little more attention in the system than they would otherwise, but it seems with the safe States, particularly combined with the winner-take-all circumstance, means that some States are basically notwe do not have an effort to increase turnout. You do not have an effort at the grassroots level that might very well be undertaken if there were direct popular election or something like that.
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Mr. GANS. Actually, the election in our country, other than those places where television is not cost-beneficial, or a Federal election, in which the smallest percentage of money is spent on television is the Presidential election, which is essentially to say that there is, you know, still even after this last election substantial resources spent organizing labor, organizing minorities, organizing elderly. And I think that would tend to get
Mr. CANADY. Is that hard money and soft money?
Mr. GANS. That is hard money and soft money, although the figures for Senate are more. And if that is true, it also means that if you had a direct election, we would have to take the '92 election as a possibility, we would have Sipple, Squier and Luntz being the Perot. And there is no reason to believe that somebody's clever media campaign for a third party couldn't win, so that indeed a direct election system probably serves to undermine the two-party system in that manner, even with the preferential system.
Mr. CANADY. Say that again.
Mr. GANS. What I am saying is that once you go to a national election, you are going to make it cost-beneficial for campaigns to do nothing but television. If so, you make it a competition between Squier and Sipple and Luntz.
Mr. CANADY. With all due respect, I just do not see that, because getting your voters to the polls is still going to be important. I mean, those numbers will count. And doing things at the grassroots level to turn people out, it seems to me, would still be very important.
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Mr. GANS. I think the evidence at this point is to the contrary, which is that senatorial campaigns at this point spend almost all of their resources on television, and congressional campaigns spend 10 percent less on television. Which is to say, the larger the universe, the more it seems cost-beneficial to the candidate and the campaign to spend the resources on television.
To take your second question, which I think is a real question, which is, we do have the safe State question, which is why I indeed do advocate what Karl Mont advocated in the 1960's and some Democrats have advocated more recently, that we indeed elect our electors by a differential system of having those which represent the Senate elected by statewide and those representing the House of Representatives elected by congressional district, because that will lead to a lack of abandonment in the States, and that will lead to an incentive structure to campaign with your political party, and it will lead to grassroots resources. And it will also, I think, lead to having closer time limits. It is not likely to happen any time soon because of partisan consideration, but it isI think it is more desirable even than the present system.
Mr. CANADY. My time has expired. But we will do a second round, at least so far as we can go, before the further votes.
Mr. HYDE. I have no further questions.
Mr. SCOTT. I am amazed that somebody can explain second choice transferable voting and can't explain how the Atlanta Braves lost the World Series because they lost four games.
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Mr. HYDE. Do not be picking on the South now.
Mr. SCOTT. The other question on third parties, I think we have had some discussion of that. Let me ask, people have said if you have direct elections, therefore, you have higher turnout. Where is the evidence of that?
Mr. GANS. There is no evidence of that. Respectfully, I would disagree with the Chairman of the committee that our 25-percent, 36-year decline in voter participation is an evidence of political satisfaction.
Mr. SCOTT. And if you had have a candidate that is ahead, say, by 20 points, nobody is going to vote. But if you have State by State, some States are going to be extremely close. Turnout will be higher in the competitive States than the others because of the electoral college.
Mr. GANS. Absolutely. And it is also, again, partly the question of television, which isI do not think it is a coincidence that our voter turnout has declined as we have increased the emphasis on television. I think the Electoral College forces grassroots organization, and there is political science literature to suggest that grassroots organization enhances turnout. It enforces consideration of various interest groups. It forces people to take in State and regional considerations, and all those things are likely to enhance turnout; whereas what I think will be very certainly the result of direct election, which is a total television campaign, is going to turn off people.
Page 96 PREV PAGE TOP OF DOC Mr. HYDE. Would the gentleman yield?
I want to agree with Mr. Gans. And I overstated the case when I said ''that's the reason.'' It is a reason.
Mr. GANS. For some people.
Mr. HYDE. It is a reason. There are many others. Perhaps more salient is ''my vote doesn't make any difference, the candidates are all alike.'' Another reason is it takes a little effort to understand the candidates and the issues, and the only source they get is a sound bites on television maybe or headline in the newspaper, and there is a great indifference as to politics. But I submit when people are hurting, they will look to politics to do something about it and throw the rascals out. But people's indifference comes from different reasons. One of them is satisfaction.
Mr. GANS. Mr. Chairman, can I just simply respond to that?
Mr. CANADY. It is the gentleman's time.
Mr. SCOTT. Go ahead.
Mr. GANS. During this 36-year period of decline, we have had two elections in which the principle that you articulated, which is anger, has propelled people to the poll, which is 1982 and 1992, when we had recessions.
Page 97 PREV PAGE TOP OF DOC On the other hand, we had a sustained increase in turnout from 1933 through the mid-1960's, when essentially we had progressively greater satisfaction with government, we had a much deeper sense of civic values, we had much stronger, and better aligned political parties, we had a much greater commitment to civic education in our schools, and I think also we didn't have television.
What I am trying to suggest is that the conditions of disengagement now are, in part, the obverse of all the conditions of engagement in the period between the 1930's and the 1960's. And I think for those it reflects satisfaction is a small percentage. The data doesn't support more than that. I am not worried about those. I am worried about the fact that we are having a progressive disengagement and to some extent dissatisfaction with our system.
Mr. SCOTT. I will try to get in two more questions if I could. First, I would like unanimous consent to have Mr. Conyers' statement entered into the record.
Mr. CANADY. Without objection.
Mr. SCOTT. Mrs. Best, you made an interesting comment about an election fraud being quarantined, I think you used the term. Could you tell us what you meant by that?
Ms. BEST. Well, under the current system, with the State unit rule, a charge of fraud would affect one Statein other words, let's take a northern State like Illinois, since it is Walter's State
Page 98 PREV PAGE TOP OF DOC Mr. CANADY. The gentleman will have 3 additional minutes.
Ms. BEST [continuing]. In that case, you open the ballot boxes in Illinois, and you do not have to open the ballot boxes in every State in the Union. Under direct, non-Federal election, every ballot box would be challengeable, not only for fraud, but for determining if any candidate won 40 or 50 percent of the popular vote, and then if so, which candidate. And so there would be no quarantine.
Mr. SCOTT. And the final question I have is just a comment and open it to questions. You talked about the safe States. The question is how they became safe? It is my view that it became safe because issues were taken. And my question, I guess, is would we produce a better candidate if the candidate spent his time having taken the farm issues and won Kansas, rang up a good lead in Kansas, whether his time would be better spent addressing issues in other States that are closed, trying to convert the few that would make a difference, or whether it would produce a better President if he just ran up the score where he was already way ahead?
Ms. BEST. Since I am the one who made that argument in my book, I think I am going to answer you very directly and say, obviously, under the unit rule, the incentive is to broaden the vote. And when you see, as a candidate, that you are leading the polls in a given State by 60, 65 percent, it is foolish to continue to expend your time and your money there. You want to go to other States that are closely divided where you might have a chance to expand on your electoral vote margin.
Mr. SCOTT. Ms. Cain.
Page 99 PREV PAGE TOP OF DOC Ms. CAIN. Yes. I think at some point we need to address, the assumption has been that what you want to do is get your name out to all the people and tell them how you feel, and then we will vote for that person. But that is not quite how elections are run in this country. You find your support, and you get it out. And that means if you got the farm support in Kansas, and you got somebody else's support somewhere else, you find that support, you find the people that agree with you, and you make sure they show up on Election Day. You use various methods to do that. That will not change under this system.
Mr. SCOTT. The question is whether we are going to elect a better President because the President can go into Kansas and run up the score, or, as Mrs. Best said, the President, having gotten a sufficient lead in Kansas, goes somewhere else and broadens his or her base.
Ms. CAIN. Well, I would guess I would have to talk to you a little bit about what you think a better candidate is, and we talked a lot today about results and whether or not they are good or bad and whether the system would produce good ones or bad ones. I rely on the American people to make that judgment.
In terms of getting out the vote, the TV discussion that has been said, sometimes you do not want the vote out. You do not want them out, so you do not use TV, you use other kinds of methods. That kind of campaigning will remain the same regardless of the system or whether we have electoral college or not.
In terms of fraud, right now two fraudulent votes can take 54 electoral votes in California and cause grave havoc with the election process. Two votes in a nationwide will not cause that much concern. It won't overthrow that particular process. And you could, if you so chose, keep the ballots, if you will, quarantined according to States until the election is over. A lot of the problems we have heard today can be addressed.
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Mr. CANADY. The gentleman's time is expired.
Mr. Hyde is recognized.
Mr. HYDE. Very briefly. I thought I heard somebody say that the differences between regions were diminishing and were ameliorating. One thing I learned when I got to Congress is it is not so much Republican versus Democrats, even liberal versus conservative; it is what region of the country are you from.
One of the fiercest fights very recently that I was a witness to was between some Western legislators of Congress who resented furiously one of the Midwestern Congressman's amendment to deprive companies of tax credits for building roads through logging areas. The environmentalists, environmental extremists I would say, thought these roads were terrible, that wooded areas ought to be pristine and untouched by human hands. The people who live in those areas say, my God, you have got to get in there if there is a fire. You have to get in for forest management to clean out the dead trees so the sunlight can reach the healthy ones. And you have the others saying, whose agenda was they wanted to cut out logging, they think logging is defiling nature. And believe me, the antagonism on both sides was palpable.
And, so, I use that as just one illustration of the differences of approach and in values. A New York City Congressman is going to be usually liberal and is going to be worried about mass transportation, is going to be worried about clean air and things that concern his area. Somebody from North Carolina has got a terribly different agenda, both important in both parts of America.
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The best President will recognize all of these interests and try to deal with them. It doesn't mean this will win and this will lose, but they will be at the table, and the only way to do that is have to win a few States that have different concerns and interests, consensus rather than just an arithmetic winner. I think you get a more quality person and someone who represents more people and more interests and makes our national motto a living thing.
But, in any event, that is an utterly fascinating subject; and you are all great people, and you have added a lot to the discussion, and I thank you.
Mr. CANADY. Thank you, Mr. Hyde.
I will now recognize myself for 5 minutes.
Part of what Mr. Hyde says, I guess, one can believe that the campaign process can transform someone. Maybe that is true. But aside from some transformation of candidates that comes in the campaign process, we do not get the same people under both systems almost all the time it appears. Maybe that will be disputed.
But I have difficulty understanding why it is that someone is better who is chosen through this particular mechanism than a person who is chosen by a majority of the people. And I believe that the American public would not understand the election of a President who had not received the most votes in the election.
Now, that may be unfortunate, but I think that is a reality, and actually Professor Berns recognizes that reality. The question, it seems to me, then, is, well, what implications does that have for the effectiveness of government if such a scenario develops? And I, quite frankly, think it is troubling.
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I will be very candid with you. I do not think this proposal is going anywhere. I do not know that we are going to spend a lot of energy on it or any more energy on it. I am not sure that this would pass the House, but I do not think it would pass the Senate. So there we are.
But, Professor Amar, do you have anything to add?
Mr. AMAR. I did want to say that those of us who believe in direct national election believe in the importance of regional variation. I do not think we are levelers that way. We think that intrastate regional variation is very important, and yet we have Governors elected in all 50 States not by any version of the electoral college, but by within the State direct election, and that system ordinarily does generate candidates with sufficiently broad appeal in various regions. Even if they do not win all sorts of regions, they have to at least be competitive in all sorts of different parts of the State.
We also believe in federalism. This is the last point. And it is connected to the Ranking Member's question about turnout and whether direct national election would increase turnout. The electoral college system was born, again, I repeat, in part so that States that had very few people voting, that didn't allow very many people to vote, wouldn't be penalized in the Presidential selection process. I think that was unfortunate that it was about giving the South credit for all these black people; they could have credit in the electoral college even though they didn't let them vote.
This is one of the reasons I am a little uneasy about odes to the framers without recognizing this was part of the original system and how we have changed in a bunch of ways about people in this city being able to participate in the Presidential election system, about African Americans and women being able to participate.
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But here is how we believe in federalism, also. Under the current system, State governments do not have that much of an incentive to encourage their citizens to turn out, because whether it is a high turnout or a low turnout, a safe State or a contested State, California still has 54 electoral votes. It doesn't matter. If we move to
Mr. HYDE. Excuse me, but there are other people running for office in a Presidential campaign, and they campaign furiously to get the vote out. Senators, auditor of public accounts, secretary of State, Congressmen; every 2 years, they are beating the drums to get the vote out. So the President may not excite anybody, and the others do.
Mr. AMAR. It is a very good point. Perhaps it is because I happen to have been in California, where Jimmy Carter, for whom I think I was planning to vote at the time, conceded the election before I had even cast my ballot, and I went out and still cast my ballot, but lots of my fellow Californians, alas, didn't. And this move to direct national election might give State governments a little bit more, not just candidates, but the government apparatus, a little more incentive to encourage their citizens to vote, which might be a good thing. It does raise issues of fraud, which is why, as I said, if you are going to go this way, you are going to have to accept the role of the national government in monitoring a national election.
Mr. CANADY. Thank you very much. Our time has expired. I appreciate your being here with us today. I think your testimony has been very helpful to the subcommittee, and we appreciate it very much.
Page 104 PREV PAGE TOP OF DOC The subcommittee is adjourned.
[Whereupon, at 12:20 p.m., the subcommittee adjourned.]
PROPOSALS FOR ELECTORAL COLLEGE REFORM
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
Page 105 PREV PAGE TOP OF DOCH.J. Res. 28 and H.J. Res. 43
SEPTEMBER 4, 1997
Serial No. 87
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
Page 106 PREV PAGE TOP OF DOCED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
Page 107 PREV PAGE TOP OF DOCJULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
C O N T E N T S
Page 108 PREV PAGE TOP OF DOCHEARING DATE
June 26, 1997
TEXT OF BILLS
H.J. Res. 28
H.J. Res. 43
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
Amar, Akhil Reed, Professor, Yale University Law School
Berns, Walter, Resident Fellow, American Enterprise Institute
Best, Judith A., Distinguished Teaching Professor, State University of New York at Cortland
Cain, Becky, President, League of Women Voters
Gans, Curtis, Director, Committee for the Study of the American Electorate
LaHood, Hon. Ray, a Representative in Congress from the State of Illinois
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Underwood, Hon. Robert A., a Representative in Congress from Guam
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Berns, Walter, Resident Fellow, American Enterprise Institute: Prepared statement
Best, Judith A., Distinguished Teaching Professor, State University of New York at Cortland: Prepared statement
Cain, Becky, President, League of Women Voters: Prepared statement
Gans, Curtis, Director, Committee for the Study of the American Electorate: Prepared statement
LaHood, Hon. Ray, a Representative in Congress from the State of Illinois: Prepared statement
Scott, Robert C. ''Bobby'', a Representative in Congress from the State of Virginia