CONSTITUTIONAL AMENDMENTS DECEMBER 19, 1974.-Ordered to be printed Mr. BAYH, from the Committee on the Judiciary, REPORT [Pursuant to S. Res. 56, Section 5] Senate Resolution 56, Section 5, agreed to February 27, 1973, authorized the Committee on the Judiciary, or any duly authorized subcommittee thereof, to examine, investigate, and make a complete study of any and all matters pertaining to constitutional amendments under sections 134(a) and 136 of the Legislative Reorganization Act of 1946, as amended, and in accordance with its jurisdiction specified by rule XXV of the Standing Rules of the Senate. Pursuant to Section 18 of said resolution, the standing Subcommittee on Constitutional Amendments of the Committee on the Judiciary reports its actions and findings and recommendations as follows: INTRODUCTION During the first session of the 93rd Congress, the Subcommittee on Constitutional Amendments engaged in the following activities pursuant to Senate Resolution 56, Section 5: ELECTORAL REFORM The purpose of Senate Joint Resolutions 1, 32, 68, and 101 was to alter the present system for electing the President and Vice President. HISTORICAL DESIGN OF THE FRAMERS OF THE CONSTITUTION In 1787, James Wilson of Pennsylvania spoke of the difficulty the Constitutional Convention had experienced in agreeing on a plan for choosing the President: This Convention, Sir, was perplexed with no part of this plan so much as with the mode of choosing the President of the United States. *** This subject has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we had to decide. There was no shortage of ideas at the Convention on how to elect the President. Among the many plans proposed were direct popular election, election by the Congress, and election by the State legislatures. Unable to agree upon a plan, the Convention appointed a "Committee of Eleven" to propose a compromise solution. The electoral college system was that compromise solution. Each State was to "appoint" electors, who would in turn actually vote for President and Vice President. The electors, according to the original design, would vote individually for the candidates they believed best qualified for President and Vice President. As Alexander Hamilton wrote in Federalist No. 68: It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation. THE ELECTORAL COLLEGE SYSTEM The Constitution provides, in Article II, Section 1, that each State shall "appoint, in such Manner as the Legislature thereof may direct," as many electors as it has Senators and Representatives. The District of Columbia, according to the terms of the 23d amendment, shall "appoint in such manner as the Congress may direct" the same number of electors it would have if it were a State, but in no event more than the least populous State. In the first few presidential elections, State legislatures appointed electors. Today, however, all of the States and the Districts choose their electors by direct popular vote. In nearly all of the States, according to State laws, the electoral slate that wins a statewide popular vote plurality is awarded all of the State's electoral votes. Four StatesAlaska, Florida, Oklahoma, and Oregon-require electors to pledge themselves, or swear an oath, to vote for their party nominees. In approximately one-third of the States there are statutory provisions requiring electors to vote for the candidates of their party. The constitutionality of these pledges and statutory requirements, however, is doubtful. See Ray v. Blair, 343 U.S. 214 (1952). In the event no candidate receives an electoral majority, the Constitution empowers the House of Representatives to choose the President from the three candidates receiving the largest number of electoral votes. The balloting in the House of Representatives is by States, with each State having one vote. According to the rules of the House, the vote of a State is awarded to the candidate who receives a majority of the votes cast by the State delegation. If a State delegation is evenly divided, that State forfeits its vote. A majority of all of the States is required for election. If the House of Representatives fails to elect a President by the time fixed for the beginning of the presidential termset at January 20 by the 20th amendment-or if the President-elect fails to qualify, the Vice-President-elect acts as President until the House chooses a President. In the absence of an electoral majority for Vice President, the choice rests with the Senate from the two candidates with the greatest number of electoral votes. A majority of all of the Senators is required for election. Proposals for reform The resolutions considered in the second session of the 91st Congress relating to electoral reform may be divided generally among the following basic plans: (1) Direct popular election. (2) The proportional system. (4) Perfection of the present system. Direct election The resolutions introduced by Senator Bayh (S.J. Res. 1), Senator Spong (S.J. Res. 41), Senator Brooke (S.J. Res. 51), Senator Hatfield (S.J. Res 97), Senator Smith (S.J. Res. 214), and Senator Bellmon (S.J. Res. 249) proposed direct popular election. Direct election would effect the greatest change in the existing system; the electoral college would be abolished. Instead, the President would be elected directly by nationwide popular vote. Senate Joint Resolution 1 proposed a direct popular election. The pair of candidates who received the greater number of popular votes nationwide would become President and Vice President, if such number was a plurality of at least 40 percent of the total number of votes cast in the nationwide vote. If no pair of candidates received 40 percent of the vote, but if the pair of candidates with the largest popular vote won an electoral college majority-with the votes cast automatically under the unit rule on the basis of the popular outcome in each State that pair of candidates would be elected President and Vice President. This computation would be purely mechanical, and the Office of Presidential Elector would be abolished once direct popular election took effect. Finally, if no pair of candidates is selected under either of these alternatives, the final selection would be made by the new Congress, meeting in special session. Each Member of both Houses would choose between the two pairs of candidates with the largest numbers of popular votes. Senate Joint Resolution 41 proposed a direct popular election plan with the additional requirement that the pair of candidates receiving a plurality of the popular vote would also have to receive a majority of the electoral vote, computed automatically, in order to be elected. Failing that, the election would be decided by the Congress. Senate Joint Resolution 51 proposed a direct popular election plan, with the added requirement that the pair of candidates winning the popular vote would be elected only if they obtained a majority of the popular vote. A contingent election procedure involving the use of electoral votes, cast automatically, was also included in the proposal. Senate Joint Resolution 97, proposed the use of nationwide popular vote in a party nominating primary election and the general election with a nationwide popular vote runoff in both the party primaries and the general election if no candidate received 40 people of the votes cast. Senate Joint Resolution 214, proposed the use of a nationwide popular vote in a party nominating primary election and the general election with a nationwide popular vote runoff in both the party primaries and the general election if no candidates received a majority of the votes cast. Senate Joint Resolution 249 proposed the use of a nationwide popular vote in a party nominating primary election and the general election with a nationwide popular vote runoff only in the party primaries if no candidate received a majority of the votes cast. Proportional method The resolutions introduced by Senator Ervin (S.J. Res. 2) and Senator Cannon (S.J. Res. 16) proposed the use of the proportional method for electing the President and Vice President. The proportional method would retain the electoral votes of the States but would divide each State's electoral votes among the candidates in proportion to their share of the State's total popular vote. Senate Joint Resolution 2 and Senate Resolution 16 provided that the electoral votes of each State shall be divided in proportion to the popular vote which each presidential candidate receives in that State. If no person should receive at least 40 percent of the total electoral vote, then the Members of the Senate and the House of Representatives, sitting in joint session and voting individually, shall choose the person to be President from the two persons having the highest number of electoral votes. District plan The resolutions introduced by Senator Curtis for Senator Mundt (S.J. Res. 12) and Senator Dominick (S.J. Res. 147) would retain the existing electoral vote concept, while allocating these votes on a district basis. Each State would continue to be entitled to two electors (representing the State's Senators) selected by all the voters of the State, and a number of electors equal to the number of the State's members of the House of Representatives, elected in single-elector districts. Senate Joint Resolutions 12 and 147 retained the presidential elector, while requiring of each candidate for the office of presidential elector a binding declaration of voting intention. Senate Joint Resolution 12 provided that the electors to which a State is entitled by virtue of its Representatives are to be chosen from single elector districts created by the State legislature, which districts must be composed of "compact and contiguous territory". A majority of electoral votes would be required for election under Senate Joint Resolution 12. In the event no candidate received the necessary majority, a joint session of the Congress, members voting individually, is to choose the President from the three highest candidates in the electoral balloting. Senate Joint Resolution 147 was similar. The State electoral vote would be divided on the basis of one vote per electoral district, with two votes at large. The congressional districts for the House of Represenatives would be used as electoral districts. Perfecting the existing system Senate Joint Resolution 3, introduced by Senator Ervin, would retain the existing electoral system, but it proposed certain perfecting features. Voters would cast only one vote to choose both the President and the Vice President. If no pair of candidates received a majority of the electoral votes, the members of the House and Senate, voting individually, would choose between the two pairs of candidates who received the highest number of electoral votes. LEGISLATIVE HISTORY The Subcommittee on Constitutional Amendments began the first of two sets of hearings on the election of the President on February 28, 1966. The Subcommittee held 18 days of hearings and heard testimony on all the various plans for reform then proposed. More than 50 witnesses appeared before the Subcommittee and the hearing record totaled nearly 1,000 pages. (Election of the President, Hearings before the Subcommittee on Constitutional Amendments, 89th Cong., second sess. and 90th Cong., first sess.). Following the election of 1968, the Subcommittee undertook a further study of electoral reform. In 11 days of hearings, on January 23 and 24, March 10, 11, 12, 13, 20, and 21, April 30, and May 1 and 2, 1969, the Subcommittee heard 49 witnesses and compiled a second hearing record of more than 1,000 pages. Once again, the Subcommittee heard testimony on all the various plans for reform. (Electing the President, Hearings before the Subcommittee on Constitutional Amendments, 91st Cong., first sess.). On May 26, 1969, the Subcommittee met in executive session to consider the question of electoral reform. By a vote of 6 to 5, the text of Senate Joint Resolution 12 (district plan) was substituted for Senate Joint Resolution 1. The Subcommittee then voted 9 to 0 with two abstentions, to report Senate Joint Resolution 1 as amended to the full Judiciary Committee without recommendation. In September 1969, Senate Joint Resolution 1 as amended became the pending order of business in the Judiciary Committee. Three additional days of hearings were conducted by the full committee on April 15, 16, and 17, 1970. The full Judiciary Committee met in executive session on April 23, and voted 11-6 to report to the Senate the direct popular election plan, which had been passed by the House of Representatives in September of 1969-by a vote of 339 to 70-and which was then embodied in the substitute version of Senate Joint Resolution 1. The report (Senate Report No. 91-1123) was filed on August 14, 1970. Senate Joint Resolution 1, as amended, was made the pending order of business in the Senate on September 2, 1970, and floor debate commenced on September 8. Two attempts to limit debate by invoking cloture failed, on September 17, by a vote of 54 yeas to 36 nays, and on September 29, by a vote of 53 years to 34 nays. On October 5, 1970, |