[Congressional Record Volume 148, Number 48 (Thursday, April 25, 2002)]
[Senate]
[Pages S3425-S3427]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            ARTHUR M. SCHLESINGER, JR. ON AMERICAN DEMOCRACY

  Mr. KENNEDY. Mr. President, few individuals have made a greater 
contribution to the study of American history than Professor Arthur M. 
Schlesinger, Jr.
  Arthur's been a pre-eminent historian for over half a century, ever 
since 1946, when he won the Pulitzer Prize at the age of 28, for his 
book ``The Age of Jackson.''
  As Oscar Wilde once said--anybody can make history but only a truly 
great man can write history. And Arthur Schlesinger has written about 
history with unsurpassed eloquence, and he's shaped that history with 
his unsurpassed wisdom and scholarship. In so many ways, Arthur 
Schlesinger represents the best of the liberal and progressive ideal in 
the 20th century.
  Arthur Schlesinger continues to represent these ideals in the 21st 
century, and I believe that his article on the 2000 presidential 
election published in last month's issue of The American Prospect will 
be of interest to all of us in Congress. I ask unanimous consent that 
it may be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the American Prospect, Mar. 25, 2002]

                        Not the People's Choice

                    (By Arthur M. Schlesinger, Jr.)

       The true significance of the disputed 2000 election has 
     thus far escaped public attention. This was an election that 
     made the loser of the popular vote the president of the 
     United States. But that astounding fact has been obscured: 
     first by the flood of electoral complaints about deceptive 
     ballots, hanging chads, and so on in Florida; then by the 
     political astuteness of the court-appointed president in 
     behaving as if he had won the White House by a landslide; and 
     now by the effect of September 11 in presidentializing George 
     W. Bush and giving him commanding popularity in the polls.
       ``The fundamental maxim of republican government,'' 
     observed Alexander Hamilton in the 22d Federalist, ``requires 
     that the sense of the majority should prevail.'' A reasonable 
     deduction from Hamilton's premise is that the presidential 
     candidate who wins the most votes in an election should also 
     win the election. That quite the opposite can happen is 
     surely the great anomaly in the American democratic order.
       Yet the National Commission on Federal Election Reform, a 
     body appointed in the wake of the 2000 election and co-
     chaired (honorarily) by former Presidents Gerald Ford and 
     Jimmy Carter, virtually ignored it. Last August, in a report 
     optimistically entitled To Assure Pride and Confidence in the 
     Electoral Process, the commission concluded that it had 
     satisfactorily addressed ``most of the problems that came 
     into national view'' in 2000. But nothing in the ponderous 
     80-page document addressed the most fundamental problem that 
     came into national view: the constitutional anomaly that 
     permits the people's choice to be refused the presidency.
       Little consumed more time during our nation's 
     Constitutional Convention than debate over the mode of 
     choosing the chief executive. The framers, determined to 
     ensure the separation of powers, rejected the proposal that 
     Congress elect the president. Both James Madison and James 
     Wilson, the ``fathers'' of the Constitution, argued for 
     direct election by the people, but the convention, fearing 
     the parochialism of uninformed voters, also rejected that 
     plan. In the end, the framers agree on the novel device of 
     an electoral college. Each state would appoint electors 
     equal in number to its representation in Congress. The 
     electors would then vote for two persons. The one 
     receiving a majority of electoral votes would then become 
     president; the runner-up, vice president. And in a key 
     sentence, the Constitution stipulated that of these two 
     persons at least one should not be from the same state as 
     the electors.
       The convention expected the electors to be cosmopolitans 
     who would know, or know of, eminences in other states. But 
     this does not mean that they were created as free agents 
     authorized to routinely ignore or invalidate the choice of 
     the voters. The electors, said John Clopton, a Virginia 
     congressman, are the ``organs . . . acting from a certain and 
     unquestioned knowledge of the choice of the people, by whom 
     they themselves were appointed, and under immediate 
     responsibility to them.''
       Madison summed it up when the convention finally adopted 
     the electoral college: ``The president is now to be elected 
     by the people.'' The president, he assured the Virginia 
     ratifying convention, would be ``the choice of the people at 
     large.'' In the First Congress, he described the president as 
     appointed ``by the suffrage of three million people.''
       ``It was desirable,'' Alexander Hamilton wrote in the 68th 
     Federalist, ``that the sense of the people should operate in 
     the choice of the person to whom so important a trust was to 
     be confided.'' As Lucius Wilmerding, Jr., concluded in his 
     magistral study of the electoral college: ``The Electors were 
     never meant to choose the President but only to pronounce the 
     votes of the people.''
       Even with such a limited function, however, the electoral 
     college has shaped the contours of American politics and thus 
     captured the attention of politicians. With the ratification 
     of the 12th Amendment in 1804, electors were required to vote 
     separately for president and vice president, a change that 
     virtually guaranteed that both would be of the same party. 
     Though unknown to the Constitution and deplored by the 
     framers, political parties were remolding presidential 
     elections. By 1836 every state except South Carolina had 
     decided to cast its votes as a unit--winner take all, no 
     matter how narrow the margin. This decision minimized the 
     power of third parties and created a solid foundation for a 
     two-party system.
       ``The mode of appointment of the Chief Magistrate 
     [President] of the United States,'' wrote Hamilton in the 
     68th Federalist, ``is almost the only part of the system, of 
     any consequence, which has escaped without severe censure.'' 
     This may have been true when Hamilton wrote in 1788; it was 
     definitely not true thereafter. According to the 
     Congressional Research Service, legislators since the First 
     Congress have offered more than a thousand proposals to alter 
     the mode of choosing presidents.
       No legislator has advocated the election of the president 
     by Congress. Some have advocated modifications in the 
     electoral college--to change the electoral units from states 
     to congressional districts, for example, or to require a 
     proportional division of electoral votes. In the 1950s, the 
     latter approach received considerable congressional favor in 
     a plan proposed by Senator Henry Cabot Lodge, Jr., and 
     Representative Ed Gossett. The Lodge-Gossett amendment would 
     have ended the winner-take-all electoral system and divided 
     each state's electoral vote according to the popular vote. In 
     1950 the Senate endorsed the amendment, but the House turned 
     it down. Five years later, Senator Estes Kefauver revived the 
     Lodge-Gossett plan and won the backing of the Senate 
     Judiciary Committee. A thoughtful debate ensued, with 
     Senators John F. Kennedy and Paul H. Douglas leading the 
     opposition and defeating the amendment.
       Neither the district plan nor the proportionate plan would 
     prevent a popular-vote loser from winning the White House. To 
     correct this great anomaly of the Constitution, many have 
     advocated the abolition of the electoral college and its 
     replacement by direct popular elections. The first 
     ``minority'' president was John Quincy Adams. In the 1824 
     election, Andrew Jackson led in both popular and electoral 
     votes; but with four candidates dividing the electoral vote, 
     he failed to win an electoral-college majority. The 
     Constitution provides that if no candidate has a majority, 
     the House of Representatives must choose among the top three. 
     Speaker of the House Henry Clay, who came in fourth, threw 
     his support to Adams, thereby making him president. When 
     Adams then made Clay his secretary of state, Jacksonian cries 
     of ``corrupt bargain'' filled the air for the next four years 
     and helped Jackson win the electoral majority in 1828.
       ``To the people belongs the right of electing their Chief 
     Magistrate,'' Jackson told Congress in 1829. ``The first 
     principle of our system,'' he said, is ``that the majority is 
     to govern.'' He asked for the removal of all ``intermediate'' 
     agencies preventing a ``fair expression of the will of the 
     majority.'' And in a tacit verdict on Adams's failed 
     administration, Jackson added: ``A President elected by a 
     minority can not enjoy the confidence necessary to the 
     successful discharge of his duties.''
       History bears out Jackson's point. The next two minority 
     presidents--Rutherford B. Hayes in 1877 and Benjamin Harrison 
     in 1889--had, like Adams, ineffectual administrations. All 
     suffered setbacks in their midterm congressional elections. 
     None won a second term in the White House.
       The most recent president to propose a direct-election 
     amendment was Jimmy Carter in 1997. The amendment, he said, 
     would ``ensure that the candidate chosen by the votes 
     actually becomes President. Under the Electoral College, it 
     is always possible that the winner of the popular vote will 
     not be elected.'' This had already happened, Carter said, in 
     1824, 1876, and 1888.
       Actually, Carter placed too much blame on the electoral 
     system. Neither J.Q. Adams in 1824 nor Hayes in 1876 owed his 
     elevation to the electoral college. The House of 
     Representatives, as noted, elected Adams. Hayes's 
     anointment was more complicated.
       In 1876, Samuel J. Tilden, the Democratic candidate, won 
     the popular vote, and it appeared that he had won the 
     electoral vote too. But the Confederate states were still 
     under military occupation, and electoral boards in Florida, 
     Louisiana, and South Carolina disqualified enough Democratic 
     ballots to give Hayes, the Republican candidate, the 
     electoral majority.

[[Page S3426]]

       The Republicans controlled the Senate; the Democrats, the 
     House. Which body would count the electoral votes? To resolve 
     the deadlock, Congress appointed an electoral commission. By 
     an 8-7 party-line vote, the commission gave all the disputed 
     votes to Hayes. This was a supreme election swindle. But it 
     was the rigged electoral commission, not the electoral 
     college, that denied the popular-vote winner the presidency.
       In 1888 the electoral college did deprive the popular-vote 
     winner, Democrat Grover Cleveland, of victory. But 1888 was a 
     clouded election. Neither candidate received a majority, and 
     Cleveland's margin was only 100,000 votes. Moreover, the 
     claim was made, and was widely accepted at the time and by 
     scholars since, that white election officials in the South 
     banned perhaps 300,000 black Republicans from the polls. The 
     installation of a minority president in 1889 took place 
     without serious protest.
       The Republic later went through several other elections in 
     which a small shift of votes would have given the popular-
     vote loser an electoral-college victory. In 1916, if Charles 
     Evans Hughes had gained 4,000 votes in California, he would 
     have won the electoral-college majority, though he lost the 
     popular vote to Woodrow Wilson by more than half a million. 
     In 1948, a shift of fewer than 30,000 votes in three states 
     would have given Thomas E. Dewey the electoral-college 
     majority, though he ran more than two million votes behind 
     Harry Truman. In 1976, a shift of 8,000 votes in two states 
     would have kept President Gerald Ford in office, though he 
     ran more than a million and a half votes behind Jimmy Carter.
       Over the last half-century, many other eminent politicos 
     and organizations have also advocated direct popular 
     elections: Presidents Richard Nixon and Gerald Ford; Vice 
     Presidents Alben Barkley and Hubert Humphrey; Senators Robert 
     A. Taft, Mike Mansfield, Edward Kennedy, Henry Jackson, 
     Robert Dole, Howard Baker, and Everett Dirksen; the American 
     Bar Association, the League of Women Voters, the AFL-CIO, and 
     the U.S. Chamber of Commerce. Polls have shown overwhelming 
     public support for direct elections.
       In the late 1960s, the drive for a direct-election 
     amendment achieved a certain momentum. Led by Senator Birch 
     Bayh of Indiana, an inveterate and persuasive constitutional 
     reformer, the campaign was fueled by the fear that Governor 
     George Wallace of Alabama might win enough electoral votes in 
     1968 to throw the election into the House of Representatives. 
     In May 1968, a Gallup poll recorded 66 percent of the U.S. 
     public in favor of direct election--and in November of that 
     year, an astonishing 80 percent. But Wallace's 46 
     electoral votes in 1968 were not enough to deny Nixon a 
     majority, and complacency soon took over. ``The decline in 
     one-party states,'' a Brookings Institution study 
     concluded in 1970, ``has made it far less likely today 
     that the runner-up in popular votes will be elected 
     President.''
       Because the danger of electoral-college misfire seemed 
     academic, abolition of the electoral college again became a 
     low-priority issue. Each state retained the constitutional 
     right to appoint its electors ``in such manner as the 
     legislature thereof directs.'' And all but two states, Maine 
     and Nebraska, kept the unit rule.
       Then came the election of 2000. For the fourth time in 
     American history, the winner of the popular vote was refused 
     the presidency. And Albert Gore, Jr., had won the popular 
     vote not by Grover Cleveland's dubious 100,000 but by more 
     than half a million. Another nearly three million votes had 
     gone to the third-party candidate Ralph Nader, making the 
     victor, George W. Bush, more than ever a minority president.
       Nor was Bush's victory in the electoral college unclouded 
     by doubt. The electoral vote turned on a single state, 
     Florida. Five members of the Supreme Court, forsaking their 
     usual deference to state sovereignty, stopped the Florida 
     recount and thereby made Bush president. Critics wondered: if 
     the facts had been the same but the candidates reversed, with 
     Bush winning the popular vote (as indeed observers had rather 
     expected) and Gore hoping to win the electoral vote, would 
     the gang of five have found the same legal arguments to elect 
     Gore that they used to elect Bush?
       I expected an explosion of public outrage over the 
     rejection of the people's choice. But there was surprisingly 
     little in the way of outcry. It is hard to image such 
     acquiescence in a popular-vote-loser presidency if the 
     popular-vote winner had been, say, Adlai Stevenson or John F. 
     Kennedy or Ronald Reagan. Such leaders attracted do-or-die 
     supporters, voters who cared intensely about them and who not 
     only would have questioned the result but would have been 
     ardent in pursuit of fundamental reform. After a 
     disappointing campaign, Vice President Gore simply did not 
     excite the same impassioned commitment.
       Yet surely the 2000 election put the Republic in an 
     intolerable predicament--intolerable because the result 
     contravened the theory of democracy. Many expected that the 
     election would resurrect the movement for direct election of 
     presidents. Since direct elections have obvious democratic 
     plausibility and since few Americans understand the electoral 
     college anyway, its abolition seems a logical remedy.
       The resurrection has not taken place. Constitutional 
     reformers seem intimidated by the argument that a direct-
     election amendment would antagonize small-population states 
     and therefore could not be ratified. It would necessarily 
     eliminate the special advantage conferred on small states by 
     the two electoral votes handed to all states regardless of 
     population. Small-state opposition, it is claimed, would 
     make it impossible to collect the two-thirds of Congress 
     and the three-fourths of the states required for 
     ratification.
       This is an odd argument, because most political analysts 
     are convinced that the electoral college in fact benefits 
     large states, not small ones. Far from being hurt by direct 
     elections, small states, they say, would benefit from them. 
     The idea that ``the present electoral-college preserves the 
     power of the small states,'' write Lawrence D. Longley and 
     Alan G. Braun in The Politics of Electoral Reform, ``. . . 
     simply is not the case.'' The electoral-college system 
     ``benefits large states, urban interests, white minorities, 
     and/or black voters.'' So, too, a Brookings Institution 
     report: ``For several decades liberal, urban Democrats and 
     progressive, urban-suburban Republicans have tended to 
     dominate presidential politics; they would lose influence 
     under the direct-vote plan.''
       Racial minorities holding the balance of power in large 
     states agree. ``Take away the electoral college,'' said 
     Vernon Jordan as president of the Urban League, ``and the 
     importance of being black melts away. Blacks, instead of 
     being crucial to victory in major states, simply become 10 
     percent of the electorate, with reduced impact.''
       The debate over whom direct elections would benefit has 
     been long, wearisome, contradictory, and inconclusive. Even 
     computer calculations are of limited use, since they assume a 
     static political culture. They do not take into account, nor 
     can they predict, the changes wrought in voter dynamics by 
     candidates, issues, and events.
       As Senator John Kennedy said during the Lodge-Gossett 
     debate: ``It is not only the unit vote for the Presidency we 
     are talking about, but a whole solar system of governmental 
     power. If it is proposed to change the balance of power of 
     one of the elements of the solar system,'' Kennedy observed, 
     ``it is necessary to consider all the others. . . . What the 
     effects of these various changes will be on the Federal 
     system, the two-party system, the popular plurality system 
     and the large-State-small-State checks and balances system, 
     no one knows.''
       Direct elections do, however, have the merit of correcting 
     the great anomaly of the Constitution and providing an escape 
     from the intolerable predicament. ``The electoral college 
     method of electing a President of the United States,'' said 
     the American Bar Association when an amendment was last 
     seriously considered, ``is archaic, undemocratic, complex, 
     ambiguous, indirect, and dangerous.'' In contrast, as Birch 
     Bayh put it, ``direct popular election of the president is 
     the only system that is truly democratic, truly equitable, 
     and can truly reflect the will of the people.''
       The direct-election plan meets the moral criteria of a 
     democracy. It would elect the people's choice. It would 
     ensure equal treatment of all votes. It would reduce the 
     power of sectionalism in politics. It would reinvigorate 
     party competition and combat voter apathy by giving parties 
     the incentive to get out their votes in states that they have 
     no hope of carrying.
       The arguments for abolishing the electoral college are 
     indeed powerful. But direct elections raise troubling 
     problems of their own--especially their impact on the two-
     party system and on JFK's ``solar system of governmental 
     power.''
       In the nineteenth century, American parties inspired 
     visiting Europeans with awe. Alexis de Tocqueville, in the 
     1830s, thought politics ``the only pleasure which an American 
     knows.'' James Bryce, half a century later, was impressed by 
     the ``military discipline'' of the parties. Voting statistics 
     justified transtlantic admiration. In no presidential 
     election between the Civil War and the end of the century did 
     turnout fall below 70 percent of eligible voters.
       The dutiful citizens of these high-turnout years did not 
     rush to the polls out of uncontrollable excitement over the 
     choices they were about to make. The dreary procession of 
     presidential candidates moved Bryce to write his famous 
     chapter in The American Commonwealth titled ``Why Great Men 
     Are Not Chosen President.'' But the party was supremely 
     effective as an agency of voter mobilization. Party loyalty 
     was intense. People were as likely to switch parties as they 
     were to switch churches. The great difference between then 
     and now is the decay of the party as the organizing unit of 
     American politics.
       The modern history of parties has been the steady loss of 
     the functions that gave them their classical role. Civil-
     service reform largely dried up the reservoir of patronage. 
     Social legislation reduced the need for parties to succor the 
     poor and helpless. Mass entertainment gave people more 
     agreeable diversions than listening to political harangues. 
     Party loyalty became tenuous; party identification, casual. 
     Franklin D. Roosevelt observed in 1940: ``The growing 
     independence of voters, after all, has been proved by the 
     votes in every presidential election since my childhood--and 
     the tendency, frankly, is on the increase.''
       Since FDR's day, a fundamental transformation in the 
     political environment has further undermined the shaky 
     structure of American politics. Two electronic technologies--
     television and computerized polling--have had a devastating 
     impact on the party system. The old system had three

[[Page S3427]]

     tiers: the politican at one end, the voter at the other, and 
     the party in between. The party's function was to negotiate 
     between the politician and the voter, interpreting each to 
     the other and providing the links that held the political 
     process together.
       The electronic revolution has substantially abolished this 
     mediating role. Television presents politicians directly to 
     the voters, who judge candidates far more on what the box 
     shows them than on what the party organization tells them. 
     Computerized polls present voters directly to the 
     politicians, who judge the electorate far more on what the 
     polls show them than on what the party organization tells 
     them. The political party is left to wither on the vine.
       The last half-century has been notable for the decrease in 
     party identification, for the increase in independent voting, 
     and for the number of independent presidential candidacies by 
     fugitives from the major parties: Henry Wallace and Strom 
     Thurmond in 1948, George Wallace in 1968, Eugene McCarthy in 
     1976, John Anderson in 1980, Ross Perot in 1992 and 1996, and 
     Ralph Nader and Pat Buchanan in 2000.
       The two-party system has been a source of stability; FDR 
     called it ``one of the greatest methods of unification and of 
     teaching people to think in common terms.'' The alternative 
     is a slow, agonized descent into an era of what Walter Dean 
     Burnham has termed ``politics without parties.'' Political 
     adventurers might roam the countryside like Chinese 
     warlords, building personal armies equipped with 
     electronic technologies, conducting hostilities against 
     various rival warlords, forming alliances with others, 
     and, if they win elections, striving to govern through ad 
     hoc coalitions. Accountability would fade away. Without 
     the stabilizing influences of parties, American politics 
     would grow angrier, wilder, and more irresponsible.
       There are compelling reasons to believe that the abolition 
     of state-by-state, winner-take-all electoral votes would 
     hasten the disintegration of the party system. Minor parties 
     have a dim future in the electoral college. Unless third 
     parties have a solid regional base, like the Populists of 
     1892 or the Dixiecrats of 1948, they cannot hope to win 
     electoral votes. Millard Fillmore, the Know-Nothing candidate 
     in 1856, won 21.6 percent of the popular vote and only 2 
     percent of the electoral vote. In 1912, when Theodore 
     Roosevelt's candidacy turned the Republicans into a third 
     party, William Howard Taft carried 23 percent of the popular 
     vote and only 1.5 percent of the electoral votes.
       But direct elections, by enabling minor parties to 
     accumulate votes from state to state--impossible in the 
     electoral-college system--would give them a new role and a 
     new influence. Direct-election advocates recognize that the 
     proliferation of minor candidates and parties would drain 
     votes away from the major parties. Most direct-election 
     amendments therefore provide that if no candidate receives 40 
     percent of the vote the two top candidates would fight it out 
     in a runoff election.
       This procedure would offer potent incentives for radical 
     zealots (Ralph Nader, for example), freelance media 
     adventures (Pat Buchanan), eccentric billionaires (Ross 
     Perot), and flamboyant characters (Jesse Ventura) to jump 
     into presidential contests; incentives, too, to ``green'' 
     parties, senior-citizen parties, nativist parties, right-to-
     life parties, pro-choice parties, anti-gun-control parties, 
     homosexual parties, prohibition parties, and so on down the 
     single-issue line.
       Splinter parties would multiply not because they expected 
     to win elections but because their accumulated vote would 
     increase their bargaining power in the runoff. Their 
     multiplication might well make runoffs the rule rather than 
     the exception. And think of the finagling that would take 
     place between the first and second rounds of a presidential 
     election! Like J.Q. Adams in 1824, the victors would very 
     likely find that they are a new target for ``corrupt 
     bargains.''
       Direct election would very likely bring to the White House 
     candidates who do not get anywhere near a majority of the 
     popular votes. The prospect would be a succession of 41 
     percent presidents or else a succession of double national 
     elections. Moreover, the winner in the first round might 
     often be beaten in the second round, depending on the deals 
     the runoff candidates made with the splinter parties. This 
     result would hardly strengthen the sense of legitimacy that 
     the presidential election is supposed to provide. And I 
     have yet to mention the problem, in close elections, of 
     organizing a nationwide recount.
       In short, direct elections promise a murky political 
     future. They would further weaken the party system and 
     further destabilize American politics. They would cure the 
     intolerable predicament--but the cure might be worse than the 
     disease.
       Are we therefore stuck with the great anomaly of the 
     Constitution? Is no remedy possible?
       There is a simple and effective way to avoid the troubles 
     promised by the direct-election plan and at the same time to 
     prevent the popular-vote loser from being the electoral-vote 
     winner: Keep the electoral college but award the popular vote 
     winner a bonus of electoral votes. This is the ``national 
     bonus'' plan proposed in 1978 by the Twentieth Century Fund 
     Task Force on Reform of the Presidential Election Process. 
     The task force included, among others, Richard Rovere and 
     Jeanne Kirkpatrick. (And I must declare an interest: I was a 
     member, too, and first proposed the bonus plan in The Wall 
     Street Journal in 1977.)
       Under the bonus plan, a national pool of 102 new electoral 
     votes--two for each state and the District of Columbia--would 
     be awarded to the winner of the popular vote. This national 
     bonus would balance the existing state bonus--the two 
     electoral votes already conferred by the Constitution on each 
     state regardless of population. This reform would virtually 
     guarantee that the popular-vote winner would also be the 
     electoral-vote winner.
       At the same time, by retaining state electoral votes and 
     the unit rule, the plan would preserve both the 
     constitutional and the practical role of the states in 
     presidential elections. By insulating recounts, it would 
     simplify the consequences of close elections. By discouraging 
     multiplication of parties and candidates, the plan would 
     protect the two-party system. By encouraging parties to 
     maximize their vote in states that they have no chance of 
     winning, it would reinvigorate state parties, stimulate 
     turnout, and enhance voter equality. The national-bonus plan 
     combines the advantages in the historic system with the 
     assurance that the winner of the popular vote will win the 
     election, and it would thus contribute to the vitality of 
     federalism.
       The national-bonus plan is a basic but contained reform. It 
     would fit comfortably into the historic structure. It would 
     vindicate ``the fundamental maxim of republican government . 
     . . that the sense of the majority should prevail.'' It would 
     make the American democracy live up to its democratic 
     pretensions.
       How many popular vote losers will we have to send to the 
     White House before we finally democratize American democracy?

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