[Congressional Record Volume 146, Number 142 (Wednesday, November 1, 2000)]
[Senate]
[Pages S11494-S11497]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
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
coast.
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,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fishery and Aquaculture Oil
Spill Assistance Act''.
SEC. 2. INTEREST; PARTIAL PAYMENT OF CLAIMS.
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
1013.
``(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).''.
SEC. 3. USES OF THE FUND.
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
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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
office.
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
were.
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
accordingly.
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
said:
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
greatly.
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
mandate.
[[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
States.
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
succeed.''
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
vote.
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
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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.''.
____________________