[Congressional Record Volume 151, Number 32 (Wednesday, March 16, 2005)]
[Senate]
[Pages S2857-S2860]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN:
  S.J. Res. 11. 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.
  Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation 
amending the Constitution to permit direct popular elections for the 
Presidency and Vice Presidency of the United States.
  I am mindful of the fact that altering the text of one of our 
country's most sacred documents requires careful thought, study and 
debate. But for me the status quo raises too many problems and 
questions.
  The Electoral College is an archaic system. It may have been suitable 
during the founding years of the Republic. But it is hardly appropriate 
for the 21st century modern democracy that we have become.

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  Fundamental fairness dictates that we have a single, nationwide count 
of popular votes. Hopefully my proposal represents the starting point 
for how best to structure a system to accomplish that.
  My approach is simple: the President is elected through a direct 
popular vote of the American people. Every American's vote counts the 
same, whether they live in Florida, Maine, California, or Nebraska. All 
the complexities of the current electoral college system are swept 
away. With my legislation the winner of the presidency is the 
individual who tallies the most votes cast in the election.
  For those who believe the Electoral College is a reasonable basis for 
electing the President, consider the following: would a foreign country 
today, creating a new democratic election system from scratch, rely on 
the U.S. Electoral College as a model? Not likely.
  Let me begin by offering a few facts and observations about the 
current system: the Electoral College allows a candidate to lose 39 
States in a general election but still win the Presidency; the 
Electoral College allows a candidate to lose a general election, by 10 
million popular votes or more, yet still be elected President; in a 
recent presidential election a candidate received nearly 20 million 
popular votes, roughly 19 percent of all votes cast, but that 
translated into 0 electoral votes; the Electoral College allows an 
elector to refuse to represent the majority of popular votes cast for a 
presidential candidate in his State's election--he can arbitrarily 
switch sides and throw his lot in with an alternative candidate, which 
has happened nine times since 1820; when a presidential election 
produces a 269 to 269 tie in electoral votes between candidates, the 
President is chosen through a ``contingent'' election conducted by the 
House of Representatives with each state's delegation casting a single 
vote--which unfairly grants equal status to California, whose 
population is 35.5 million, and Wyoming, whose population is 500,000; 
making matters worse, when such a ``contingent election'' occurs, House 
members are not bound to support the candidate who won the popular vote 
in the State they collectively represent--they are free to vote as they 
see fit; the two ``constant'' or ``senatorial'' electors automatically 
assigned to each State give less populous states a disproportionate 
advantage in the Electoral College vote count compared to States with 
more sizable populations; the winner-take-all concept for awarding a 
State's electoral votes disenfranchises all voters in a State who 
supported a losing candidate in that State; and finally, the Electoral 
College undermines national campaigns by causing presidential 
candidates to focus on a handful of contested States and ignore the 
concerns of tens of millions of Americans living in other States.
  The political and substantive utility of this system, full of 
pitfalls and loopholes, is very hard to discern. Voter apathy is a 
function of a system signaling to people that their vote does not 
count, and the Electoral College manages that in spades.
  Now, I don't take this effort on lightly, because we have amended the 
Constitution a mere twenty-seven times since the founding of the 
nation. But as a matter of practical necessity, fairness and common 
sense, we need to consider the inherent inequities involved with the 
Electoral College.
  My hope is that we can treat this in a bipartisan and nonparochial 
manner that benefits the whole of the country. I appreciate that states 
and regions are affected differently, California among them, but my 
motivations derive from improving the American federalist system in a 
way that eliminates undue consequences.
  I have not been solicited by any particular interest group, 
constituency, or voting bloc to amend the Constitution. At bottom, I 
believe this is a matter of serious import. Good public policy demands 
that we give this subject sustained attention and I intend to do that 
through the Senate hearing process.
  There was a time, of course, when the Electoral College adequately 
represented the voting needs of the country. In the 1780s there were no 
formal political parties as such, no experience with conducting 
national campaigns for office, and no lack of mistrust among States 
large and small about protecting their interests.
  The Founding Fathers understood: first, the social, economic and 
political disconnectedness that existed among the States; second, the 
federalist system of governance was only beginning to take root; third, 
the dearth of news and communications networks across the country made 
national campaigning difficult; and fourth, the likelihood that a local 
``favorite son'' or regional candidate would prevail in a national 
presidential election.
  This combination of factors justified an indirect election of the 
President through a College of Electors.
  Inimical reasons existed for going this route as well. Had the 
Framers of the Constitution adopted the one man, one vote system, 
Northern States that permitted blacks to vote in popular national 
elections could have exercised greater influence in electing the 
President than southern states. And States that independently extended 
rights of suffrage to women also could have gained an advantage.
  The 15th Amendment in 1870 extending voting rights to Black men and 
many years later women gaining those same rights laid these issues to 
rest. With the obstacles of racism and sexism now gone as reasons 
justifying the creation, of the Electoral College, the puzzlement over 
why we haven't updated the presidential election system only continues.
  Regardless, as a means to reconcile the interests of State 
governments and the Federal government, of northern and southern 
states, of majority and minority interests groups, and to let all these 
voices be heard come election time, the Electoral College was 
considered a just compromise. Its basic form was adopted during the 
Constitutional Convention of 1787.
  Political events occurred soon thereafter, though, prompting passage 
of the 12th Amendment and the first major changes in the Electoral 
College system. The presidential election of 1800, between Thomas 
Jefferson and Aaron Burr, ended in a tie of electoral votes, causing 
the House of Representatives to break the deadlock through a 
``contingent election''. A messy political imbroglio ensued. It was 
only after many rounds of negotiations that Jefferson won the 
Presidency.
  Importantly, the 12th Amendment to the Constitution passed in 1804 to 
streamline the process of contingent elections. I would observe that 
passage of the 12th Amendment confirmed that the Electoral College 
system was, and remains, appropriately subject to change.
  Legislators in 1804 did not delay in amending the Constitution for 
reasons of fairness and practicality, and nor should we in 2004 fail to 
address the imperfect design that thwarts the will of the American 
public.
  Even with the 12th Amendment in place, the Electoral College managed 
to turn logic on its head in presidential elections throughout the 19th 
century. Minority presidents, so-called for winning the electoral vote 
but losing the popular vote, were elected three times--John Quincy 
Adams in 1824, Rutherford B. Hayes in 1876, and Benjamin Harrison in 
1888.

  And in 2000 the same problem re-surfaced, the fourth time in our 
Nation's short history, with Vice President Al Gore edging George Bush 
by 537,895 popular votes, but losing the electoral college by a mere 5 
votes.
  The Nation can be thankful, frankly, that we have only had disputed 
elections in just these four instances. A shift of a few thousand votes 
from one candidate to another in past presidential elections could have 
ordained similar disarray. Some noteworthy examples include: despite 
losing the popular vote by the sizable margin of 1.7 million votes, 
Gerald Ford in 1976 needed only 5,559 more votes in Ohio and 3,687 in 
Hawaii to reach the magical number of 270 electoral votes and he would 
have been returned to the White House.
  And had California, Illinois and Ohio posited 29,000 more votes in 
Thomas Dewey's column, he lost the over popular vote by a wide margin, 
2.1 million, in 1948, the face of history may have been changed forever 
with Harry Truman never returning to the White House.
  And most recently, a shift of a mere 68,000 votes in Ohio from 
President George Bush's column to John Kerry would have allowed the 
Democrat to

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win the electoral vote count, 271 to 267, and the Presidency, even 
though Bush enjoyed a sizable 3.5 million margin in popular votes cast.
  According to some estimates, we have had no fewer than 22 near 
misses, all of which could have ended up as contentious as the 2000 
contest. We are tempting fate by ignoring this problem: sooner or later 
a dramatic incongruity will occur between an electoral vote winner 
contrasted against a different popular vote winner whose margin of 
victory runs into the millions.
  Electoral College anomalies don't end with disparities between the 
electoral and popular vote winners. The phenomenon of the ``Faithless 
Elector'' reflects a further structural defect in the Electoral College 
System.
  History shows that electors have not been faithful to the 
presidential and vice presidential tickets winning the most votes in 
their respective states. They may initially pledge to the winning 
candidate, but enjoy individual discretion to change their vote when 
electoral votes are formally counted.
  Contemporary examples are as follows: in 1968, Dr. Lloyd Bailey, a 
North Carolina elector initially pledged to Republican Richard Nixon, 
switched his vote to George Wallace of the American Independent Party; 
in 1972, Roger MacBride, a Virginia elector for Richard Nixon switched 
his vote to John Hospers of the Libertarian Party; in 1976, Mike 
Padden, a Washington elector for Gerald Ford voted for Ronald Reagan; 
in 1988, Margarat Leach, a West Virginia elector for Michael Dukakis, 
voted instead for Lloyd Bentsen, an unusual decision to exchange the 
positions of the Presidential and Vice Presidential candidates; and in 
2000, Barbara Lett-Simmons, a District of Columbia elector for Democrat 
Albert Gore Jr., cast a blank ballot.
  These arbitrary decisions did not affect the outcome in each of those 
presidential election years. But they all flouted the electoral will of 
the people.
  The fact that such capricious switching is permitted, irrespective of 
the outcomes of the popular vote results in the states in question, is 
cause for great concern. What might happen if electors break their 
pledges to a particular candidate en masse? Is that possible and 
legally enforceable? The answer appears to be yes.
  In this vein, it does not require a stretch of the imagination to 
envision three or more candidates splitting the electoral tally of 
votes such that none received the requisite majority of 270 to win the 
White House.
  In that situation, what prevents one of the candidates directing his 
electors to another candidate, before the formal meeting of the 
Electors to count and certify the electoral votes occurs in the month 
following the November election, to allow him to gain the necessary 
majority of 270 in exchange for policy concessions or worse, a massive 
cash payment? Would that kind of corrupt transaction be allowed? What 
element of the current Electoral College system prevents such an 
unfortunate outcome?
  This may not be likely, given our strong two party system, but it is 
possible. Yet we tolerate the risk of it happening, year after year, 
because we assume it will never occur. Someday we may regret our 
indecision to fix what we know is wrong with the Electoral College 
system.
  Twenty-five years ago in the 96th Congress, a majority of the Senate 
voted 51 to 48 to support abolishing the Electoral College and replace 
it with direct popular elections. That legislation, S.J. Res. 26, fell 
short of the necessary two-thirds required for a constitutional 
amendment, but I am encouraged that more than half the body supported 
the concept.
  A few years before that, the House voted overwhelmingly in the 91st 
Congress, by a vote of 338 to 70, for the direct popular election of 
the President. Alas, the effort fell short in the Senate.
  I am prepared to press the case for this idea, on a bipartisan basis, 
through extensive committee deliberations and onto the Senate floor. 
The time has come for the Senate to reconsider the essential building 
blocks of our democracy.
  Some might claim that offering a constitutional amendment is a 
political gambit to overcome my own State's weak position in the 
Electoral College voting system. It is a fact that smaller States, such 
as South Dakota, Wyoming, and others, maintain disproportionate 
influence in the process compared to California.
  I would respond to that as follows: my approach does equate the vote 
of a Californian, Rhode Islander and South Dakotan as being equal. But 
it also means that millions of votes cast for Republican candidates in 
future presidential races in my home state will have meaning and value. 
Their votes will count for something.
  In the 2000 race, George Bush received over 4.5 million votes in 
California. That should have counted for something--but it did not. All 
54 of California's electoral votes went to Vice President Al Gore.
  Given the domination of Democratic presidential candidates in 
California in the modern era, it is clear that my party would not 
benefit from a direct popular election in California.
  But for me, this is about principle over politics. It is the right 
thing to do, even if it gives renewed life to Republican presidential 
candidates in my home State.
  As it stands now, California is not a place where Republican and 
Democratic presidential candidates genuinely compete for votes. They 
come to California to fill their campaign coffers but take a pass with 
real voters. That needs to change--for California, yes, but also for 
New York, Texas, for Utah and for so many other States in the country.
  I have tried to understand the counterarguments to a nationwide 
popular vote. They reflect a desire to empower both regional and rural 
interests, and deny major population centers from having excessive 
power. I appreciate the notion that we don't want clusters of cities 
and particular regions where the greatest numbers of Americans reside, 
New York City, Chicago, Los Angeles, to dominate the electoral 
landscape.
  At the same time, a presidential candidate's priorities, record and 
vision for the country will determine how far he goes in the nominating 
and general election process. Stitching together a cross section of 
American voters, who represent different economic and social 
backgrounds, professions, parts of the country, religious faiths, and 
so much more holds the key to attaining a winning plurality or majority 
of votes in presidential races.
  I would contend that it is up to the candidates to appeal to the 
broadest group of Americans but to level the playing field in doing so. 
In that process each American's vote, regardless of where that person 
lives in the country, should be counted equally.
  Right now, that is just not the case. Our system is not undemocratic, 
but it is imperfect, and we have the power to do something about it.
  I ask unanimous consent that the text of the Electoral College 
Abolition Resolution be printed in the Record.
  There being no objection, the joint resolution was ordered to be 
printed in the Record, as follows:

                              S.J. Res. 11

       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. The 
     persons having the greatest number of votes for President and 
     Vice President shall be elected.
       ``Section 2. The voters 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 may establish 
     qualifications for voters in the district constituting the 
     seat of government of the United States.
       ``Section 3. Congress may determine the time, place, and 
     manner of holding the election, and the entitlement to 
     inclusion on the ballot. Congress shall prescribe by law the 
     time, place, and manner in which the results of the election 
     shall be ascertained and declared.
       ``Section 4. Each voter shall cast a single vote jointly 
     applicable to President and Vice President in any such 
     election. Names of candidates shall not be joined unless both 
     candidates have consented thereto, and no

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     candidate shall consent to being joined with more than one 
     other person.
       ``Section 5. 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 6. This article shall take effect one year after 
     the twenty-first day of January following ratification.''.

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