[Congressional Record Volume 146, Number 142 (Wednesday, November 1, 2000)]
[Pages S11494-S11497]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


      Mr. SMITH of Oregon:
  S. 3268. A bill to amend the Oil Pollution Act of 1990 to improve 
provisions concerning the recovery of damages for injuries resulting 
from oil spills; to the Committee on Environment and Public Works.

           fishermen and aquaculture oil spill assistance act

  Mr. SMITH of Oregon. Mr. President, today I am introducing 
legislation to address concerns raised by a number of my constituents 
with respect to the Oil Pollution Act in the aftermath of the New 
Carissa incident. This legislation, the Fishermen and Aquaculture Oil 
Spill Assistance Act, is the first step toward ensuring that small 
businesses, such as the fishermen and shellfish producers in my state, 
who are impacted by these oil spills, are not victimized a second time 
by a lengthy claims procedure under the OPA.
  For the benefit of my colleagues who are not aware of this incident, 
the New Carissa was a large wood-chip freighter that ran aground near 
Coos Bay, Oregon last year and leaked 60,000 gallons of oil. This 
devastated the coastal environment in that area, and temporarily 
damaged some of the important oyster beds for which Coos Bay is well-
known in the seafood industry. In fact, we still have the ship's stern 
section sitting off-shore, marring the natural beauty of the Oregon 
  Over the last several months I have heard from my constituents from 
that part of the Oregon coast, who are extremely dissatisfied with both 
the emergency response planning and the claims process under the Oil 
Pollution Act as it applies to aquaculture producers. With respect to 
the emergency response plans, the complaint has been that the concerns 
of shellfish producers are not necessarily taken into account in the 
development of these plans and that quick action in the early hours of 
a spill could protect the areas where the oyster beds are present. On 
the matter of the claims process, the complaint has been that there is 
little small businesses can do in the immediate term if the responsible 
party fails to make the interim payments to claimants required under 
the OPA.
  This legislation addresses the concerns by authorizing the President 
to offer loans to fishermen and aquaculture producers who are mired in 
the claims process, but have not been receiving the required interim 
payments. This would help these small, often family-owned, businesses 
meet their most pressing expenses should the claims procedure become a 
drawn out affair. Secondly, this legislation calls upon the Secretary 
of Commerce and the Administrator of the Environmental Protection 
Agency to study the claims process and the emergency response plans to 
determine if they adequately protect the interests of seafood producers 
and submit any recommendations to the Congress. Ultimately, my aim is 
to ensure that future oil spill incidents do not cause the same 
problems to others that oyster producers in Oregon have suffered 
following the New Carissa spill.
  I am pleased that my friend from the Oregon delegation, Mr. DeFazio, 
intends to introduce a companion measure today in the House of 
Representatives. Over the upcoming holidays we intend to look over this 
matter again and reintroduce this legislation, after receiving further 
feedback from our constituents, early in the 107th Congress.
  Mr. President, I ask unanimous consent that the text of this 
legislation be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3268

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,


       This Act may be cited as the ``Fishery and Aquaculture Oil 
     Spill Assistance Act''.


       Section 1005 of the Oil Pollution Act of 1990 (33 U.S.C. 
     2705) is amended by adding at the end the following:
       ``(c) Loan Program.--
       ``(1) In general.--The President shall establish a loan 
     program to assist injured parties in meeting financial 
     obligations during the claims procedure described in section 
       ``(2) Condition for loan.--A loan may be awarded under 
     paragraph (1) only to a fisherman or aquaculture producer to 
     whom a responsible party has failed to provide an interim 
     payment under subsection (a).''.


       Section 1012(a) of the Oil Pollution Act of 1990 (33 U.S.C. 
     2712(a)) is amended--
       (1) in paragraph (5)(C), by striking the period at the end 
     and inserting ``; and''; and
       (2) by adding at the end the following:
       ``(6) the making of loans to assist any injured party in 
     paying financial obligations during the claims procedure 
     described in section 1013.''.

     SEC. 4. STUDY.

       Not later than 270 days after the date of enactment of this 
     Act, the Secretary of Commerce, in consultation with the 
     Administrator of the Environmental Protection Agency, shall 
     submit to Congress a study that contains--
       (1) an assessment of the effectiveness of the claims 
     procedures and emergency response programs under the Oil 
     Pollution Act of 1990 (33 U.S.C. 2701 et seq.) concerning 
     claims filed by, and emergency responses carried out to 
     protect the interests of, fishermen and aquaculture 
     producers; and
       (2) any legislative or other recommendations to improve the 
     procedures and programs referred to in paragraph (1).
      Mr. DURBIN:
  S.J. Res. 56. A joint resolution proposing an amendment to the 
Constitution of the United States to abolish the electoral college and 
to provide for the direct popular election of the President and Vice 
President of the United States; to the Committee on the Judiciary.

                         THE ELECTORAL COLLEGE

  Mr. DURBIN. Mr. President, earlier this morning I held a press 
conference with a colleague of mine from the State of Illinois, Ray 
LaHood. Ray LaHood is a Congressman from the city of Peoria, and a 
Republican. It was interesting to see a bipartisan press conference at 
this point in the congressional session.
  Congressman LaHood and I agree on an issue which could become 
supremely important in just a few days. Given the tight Presidential 
race this year, we have the possibility that the winning candidate for 
President might not win the popular vote in our country. This

[[Page S11495]]

potential outcome highlights a serious and persistent flaw in our 
current system of electing a Chief Executive of the United States.
  I am introducing a joint resolution to amend the Constitution to 
replace the electoral college with the direct election of the President 
and Vice President.
  I introduced a similar measure in 1993 with Congressman Gerald 
Kleczka of Wisconsin in the House. I will be doing the same in the 
Senate. But I hope to attract the support of colleagues on both sides 
of the aisle regardless of the outcome on November 7.
  The electoral college is an antiquated institution that has outlived 
its purpose. It was the product of contentious debate and a great deal 
of controversy. Most of the delegates to the Constitutional Convention 
in 1787 felt that the process of selecting a President should not be 
left up to a direct vote of the people. And most agreed with the 
sentiments of George Mason of Virginia, who said, ``it were as 
unnatural to refer the choice of a proper character for Chief 
Magistrate to the people, as it would be to refer a trial of colors to 
a blind man.''
  After a prolonged debate, an indirect method of electing the 
President was adopted. This compromise plan, known as the Electoral 
College Method, provided for the election of the President and Vice 
President by State appointed electors. Under Article II, Section 1, 
Clause 2 of the Constitution as amended by the 12th Amendment in 1804, 
each state is required to appoint in a manner determined by the state 
legislature a number of electors equal in number to its congressional 
representation. If no candidate receives a simple majority of electoral 
votes, then the House of Representatives chooses the President from the 
three candidates with the greatest number of votes and the Senate 
similarly chooses a Vice President from the top two contenders for that 
  The commonly held opinion among the delegates in 1787 was that 
matters of such gravity should not be left up to the average citizen. 
Moreover, the discussions of the convention reveal that the delegates 
questioned whether voters in one State could have enough relevant 
knowledge regarding the character of public men living hundreds of 
miles away. In addition, the delegates from the less populous States 
were concerned that a direct election of the President would enhance 
the power and prestige of the more populous states.

  But today, these concerns are no longer compelling--if they ever 
  The 17th amendment to the Constitution was ratified in 1913 and 
provided for the direct popular election of U.S. Senators. Before that, 
Senators were chosen by State legislatures. But come 1913, we decided 
to trust the people to choose the Senators. I don't believe our Nation 
suffered by that decision. I think the Senate as an institution has 
been enhanced by that decision. It is no longer a back-room deal in a 
State capitol that sends a Senator to Washington, it is a decision made 
by the people of each State in an open and free election.
  The incredible advances in communication technologies since the 18th 
Century render moot the concerns that citizens do not have enough 
information to make an informed decision about a President. Clearly 
potential voters today have more information about presidential 
candidates than their counterparts had 200 years ago regarding their 
directly elected Representatives to Congress.
  It has been argued that smaller States have a slight advantage in the 
current system, because states receive a minimum of three electoral 
votes, regardless of their population. However, any serious study of 
presidential campaigns would demonstrate that the more populous states, 
with their large electoral prizes, as well as medium sized swing 
states, have the true advantage. The winner-take-all aspect in each 
State motivates presidential candidates to focus on States with a 
moderate or large number of electoral votes, assuming the candidates 
believe they have a chance to win the popular vote there. Less populous 
States with only a few electoral votes are largely ignored. Also States 
that are heavily leaning toward one of the presidential candidates are 
similarly ignored.
  You do not see Al Gore and Joe Lieberman spend that much time in the 
State of Texas, nor do you find George W. Bush visiting the State of 
New York very often. Most campaigns have written off certain States. So 
the people in that State do not see much of the Presidential campaign 
except for national coverage.
  Clearly, there is a reason why there have been more congressionally 
proposed constitutional amendments on this subject than any other. The 
electoral college system, as it stands today, has several major 
defects. The most significant of these are the result of voting schemes 
other than a direct popular vote. The most prevalent example is the 
unit vote or so-called winner-take-all formula. The unit vote is the 
practice of awarding all of a State's electoral votes to the candidate 
with a popular vote plurality in the State, regardless of whether the 
plurality is one vote or one million votes. All States and the District 
of Columbia with the exception of the States of Maine and Nebraska have 
adopted this method.
  In doing my research on this isue, I learned that Maine and Nebraska 
vote by congressional district and allocate their Presidential electors 
  The first problem with the electoral college system is that it is 
inherently unfair and may disenfranchise voters. Senator Birch Bayh--
father of our colleague, Senator Evan Bayh--discussed this problem on 
the floor of the Senate when he introduced a resolution to abolish the 
electoral college on January 15, 1969. During his floor statement he 

       As a result, the popular vote totals of the losing 
     candidate at the State level are completely discounted in the 
     final electoral tabulation. In effect, millions of voters are 
     disenfranchised if they happen to vote for the losing 
     candidate in their State.

  The famous Missouri Senator Thomas Hart Benton, who was the first 
Senator to serve in the Senate for 30 years, further pointed out the 
injustice of this system when he said:

       To lose votes is the fate of all minorities, and it is 
     their duty to submit; but this is not the case of votes lost, 
     but of votes taken away, added to those of the majority and 
     given to a person to whom the minority is opposed.

  Another problem with the electoral college system is that it often 
leads to wide disparities between the popular vote and the electoral 
vote. For example, since 1824, when the popular vote first began to be 
recorded along with the electoral vote, winners of presidential 
elections have averaged 51 percent of the popular vote as compared to 
an average of 71 percent of the electoral vote. In comparison, the 
losing main opponents have averaged 42 percent of the popular vote, but 
just 27 percent of the electoral vote. Year to year statistics vary 
  A more serious problem is that the electoral college system can lead 
to Presidents who received fewer popular votes than their main 
opponent. In fact, this has happened 3 times out of the 42 presidential 
elections since 1824.
  Another indication as to the likelihood of a non-majority President 
can be seen in the elections of 1844, 1880, 1884, 1960, and 1968, in 
which the main opponent lost the popular vote by an average of only 0.3 
percent. This is in stark contrast to the winning margin in electoral 
votes for these elections, which averaged 17 percent. Other close 
presidential elections occurred in 1916, 1948, and 1976. In those 
years, if a mere few thousand votes had been switched in a few key 
states where the vote was close, a different candidate would have won 
the White House. In 1916, for example, a shift of only 2,000 votes in 
California would have made Charles Evans Hughes President, despite 
Woodrow Wilson's half-million popular vote advantage. And in 1976, a 
6,000 vote shift in Ohio and a 4,000 vote shift in Hawaii would have 
elected Gerald Ford, even though Jimmy Carter won the popular vote by 
1.6 million ballots.
  One can conclude that approximately one in fourteen presidential 
elections have resulted in a non-majority President, while one in five 
have nearly resulted in one.
  Senator Birch Bayh eloquently pointed out the risk of this system in 
his floor statement on January 15, 1969:

       The present electoral vote system has in the past, and may 
     in the future, produce a President who has received fewer 
     popular votes than his opponent. I cannot see how such a 
     system can be beneficial to the American people. I see, 
     instead, only grave dangers that could divide this Nation at 
     a critical hour if the President-elect lacked a popular 

[[Page S11496]]

  The third pernicious flaw in the electoral college system is that it 
produces artificial distortions in the political process. The fact that 
presidential candidates cater to the larger and swing states often 
gives undue influence to a limited number of contested States. So-
called safe States are given scant or no attention by candidates--who 
have limited time, energy, and resources. Senator Thomas J. Dodd, the 
distinguished Senator from Connecticut who was known as an ardent 
crusader and civil rights advocate, argued convincingly on this subject 
soon after President Kennedy's narrow victory in 1960. He said:

       The shift of a few thousand votes in these States would 
     have elected Dewey in 1948. The shift of a few thousand votes 
     in Illinois and New Jersey could have changed the result of 
     an election as close as this past one. There is something 
     wrong with an election system which hinges, not on the vote 
     of 70 million, but on the vote of several thousand in a 
     few key States.

  The issue isn't simply that every vote matters in a close election. 
The issue is the injustice of a few thousand votes in just a few states 
having a disproportional impact on a National election. Why should a 
vote in Missouri or Florida be worth more to a presidential candidate 
than one in Wyoming, Mississippi, or Rhode Island?
  The fourth and last major flaw in the electoral college system is 
that electors, in general, are not bound to cast their vote in 
accordance with the popular vote results from their State. While some 
States require a binding oath or pledge under penalty of law, the 
majority of States have no or an insignificant penalty. This leads to 
the disturbing possibility that a President, in an election with a 
close electoral vote, could win through subterfuge. Instances of rogue 
electors casting votes contrary to the results in their State have 
occurred in the following years: 1948, 1956, 1960, 1968, 1972, 1976, 
and 1988.
  Since 1797, when Representative William L. Smith of South Carolina 
offered the first Constitutional amendment proposing to reform our 
procedure for electing the President, hardly a session of Congress has 
passed without the introduction of one or more similar proposals. 
According to the Congressional Research Service, approximately 109 
constitutional amendments on electoral college reform were introduced 
in Congress between 1889 and 1946. Another 265 were introduced between 
1947 and 1968. The distinguished Senator from South Carolina Olin 
Johnston summed up the sentiments of many of the critics of the 
electoral college system when he said on the floor of the Senate on 
January 5, 1961:

       All of these proposals recognized . . . that the so-called 
     electoral college system has never functioned as contemplated 
     by the framers of the Constitution.

  While all of these attempts failed, the most successful effort took 
place after the 1968 presidential election when third party candidate 
George Wallace received 46 electoral votes. In that election, there was 
considerable concern that no candidate would receive a majority of 
electoral votes and that the new President would be selected by the 
House of Representatives. As a result, H.J. Res. 681 was introduced by 
Representative Emanuel Celler in the 91st Congress, proposing to 
abolish the electoral college and replace it with the direct popular 
election of the President and Vice President. Included in H.J. Res. 681 
was a provision for a runoff election if no candidate received at least 
40 percent of the popular vote. While this joint resolution passed the 
House on September 18, 1969, by a vote of 338-70, it died in the Senate 
because of a filibuster by Senators from small States and southern 

  The joint resolution I am introducing today is similar to H.J. Res. 
681, in that it calls for the direct election of the President and Vice 
President and includes a provision for a runoff election. More 
specifically, in the event that no candidate receives at least 40 
percent of the popular vote, a runoff would be held 21 days after the 
general election between the two candidates with the greatest number of 
popular votes. This resolution builds upon a proposal I offered with 
Representative Gerald Kleczka in 1993 and other resolutions introduced 
in the current Congress by Representatives Ray LaHood and James Leach.
  Every public opinion poll indicates that an overwhelming majority of 
Americans want to elect their President directly by popular vote. 
Direct popular election has been endorsed in the past by a large number 
of civic-minded groups including the American Bar Association, the AFL-
CIO, the UAW, U.S. Chamber of Commerce, the National Federation of 
Independent Business, and the NAACP.
  If we believe that the President represents and speaks for the people 
of this great country, then we have an obligation to allow the people 
to have their voices heard. Abraham Lincoln once said, ``Public opinion 
is everything. With it, nothing can fail. Without it, nothing can 
  Mr. President, to reiterate, as Congressman LaHood and I said in our 
bipartisan press conference, although this is an issue which apparently 
seems so rational and so easy to argue, it is one that has run into a 
lot of debate on the floor of the Senate. I spoke to one of my 
colleagues from a smaller State and told him what I was doing. He said: 
I'll oppose you all the way because my tiny State has three electoral 
votes, and the Presidental candidate has been spending a lot of time in 
my State and would spend no time there if we had to rely on a popular 
  But it seems strange to me we rely on a popular vote for virtually 
every other election in America but not the Presidential election. If 
we have a disparity between the popular vote for President and the 
electoral vote for President, if we have someone elected President who 
does not receive a majority of the votes of the American people, it 
will create a problem for that administration. It is tough enough to 
lead in this great Nation, tough enough for a President to muster 
popular support for difficult decisions to be made. But if that 
President does not bring a mandate from the people to the office, his 
power will be diminished.
  I sincerely hope that does not occur. But whether or not, I hope my 
colleagues will join me supporting this effort to abolish the electoral 
college and say we trust the people in this country. The arguments made 
over 200 years ago do not apply today. The people of this country 
should choose the President as they choose Members of Congress as well 
as U.S. Senators.
  I ask unanimous consent a copy of the legislation be printed in the 
Congressional Record.
  There being no objection, the resolution was ordered to be printed in 
the Record, as follows:

                              S.J. Res. 56

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled (two-thirds of 
     each House concurring therein), That the following article is 
     proposed as an amendment to the Constitution of the United 
     States, which shall be valid to all intents and purposes as 
     part of the Constitution when ratified by the legislatures of 
     three-fourths of the several States within seven years after 
     the date of its submission to the States for ratification:

                              ``Article --

       ``Section 1. The President and Vice President shall be 
     elected by the people of the several States and the district 
     constituting the seat of government of the United States.
       ``Section 2. The electors in each State shall have the 
     qualifications requisite for electors of Representatives in 
     Congress from that State, except that the legislature of any 
     State may prescribe less restrictive qualifications with 
     respect to residence and Congress may establish uniform 
     residence and age qualifications. Congress shall establish 
     qualifications for electors in the district constituting the 
     seat of government of the United States.
       ``Section 3. The persons having the greatest number of 
     votes for President and Vice President shall be elected, if 
     such number be at least 40 per centum of the whole number of 
     votes cast for such offices in the general election. If no 
     persons have such number, a runoff election shall be held 21 
     days after the general election. In the runoff election, the 
     choice of President and Vice President shall be made from the 
     persons who received the two highest numbers of votes for 
     each office in the general election.
       ``Section 4. The times, places, and manner of holding such 
     elections, and entitlement to inclusion on the ballot for the 
     general election, shall be prescribed in each State by the 
     legislature thereof; but Congress may at any time by law make 
     or alter such regulations. Congress shall prescribe by law 
     the time, place, and manner in which the results of such 
     elections shall be ascertained and declared.
       ``Section 5. Each elector shall cast a single vote jointly 
     applicable to President and Vice President in any such 
     election. Names of candidates shall not be joined unless they 
     shall have consented thereto and no candidate shall consent 
     to his or her name's

[[Page S11497]]

     being joined with that of more than one other person.
       ``Section 6. Congress may by law provide for the case of 
     the death of any candidate for President or Vice President 
     before the day on which the President-elect or the Vice 
     President-elect has been chosen; and for the case of a tie in 
     any such election.
       ``Section 7. Congress shall have the power to implement and 
     enforce this article by appropriate legislation.
       ``Section 8. This article shall take effect one year after 
     the twenty-first day of January following ratification.''.