[Congressional Record Volume 166, Number 169 (Tuesday, September 29, 2020)]
[Extensions of Remarks]
[Pages E886-E890]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   RECOGNIZING THE 50TH ANNIVERSARY OF THE DEFEAT OF ABOLISHING THE 
                           ELECTORAL COLLEGE

                                 ______
                                 

                           HON. JAMIE RASKIN

                              of maryland

                    in the house of representatives

                      Tuesday, September 29, 2020

  Mr. RASKIN. Madam Speaker, in September 1969, Senator Birch Bayh, 
Chairman of the Senate Judiciary Subcommittee on Constitutional 
Amendments, introduced a constitutional amendment to abolish the 
Electoral College. The amendment passed with overwhelming bipartisan 
support in the House and with support from President Richard Nixon. But 
on this day 50 years ago, the amendment was blocked by a filibuster in 
the Senate.
  The author of two successful and important constitutional amendments 
(the 25th and 26th), Senator Bayh was an eloquent and learned champion 
of sweeping institutional reform to make sure that the Constitution 
safeguards democratic principles rather than antiquated structures 
rooted in an undemocratic past. At this moment of profound 
constitutional stress and recurring global and domestic threats to 
democratic values and practices, we should remember the Senator's 
passionate commitment to building democratic self-government that 
serves as an instrument of the common good. Senator Bayh recognized 
that, in order to make sure that all votes count in our presidential 
elections and all votes count equally, it will be necessary to abolish 
the electoral college--or at least transform it through the National 
Popular Vote interstate agreement. I was honored to work with Senator 
Bayh, who was a great gentleman and patriot, during my time as a State 
Senator and he definitely helped us to make Maryland the first state to 
pass the National Popular Vote Agreement.
  Madam Speaker, I wish to include in the Record a speech by New York 
Times Editorial Board Member Jesse Wegman for the annual Birch Bayh 
Lecture given at University of Indiana McKinney School of Law in honor 
of Senator Bayh's historic efforts towards electoral reform and in 
recognition of the melancholy day of defeat of the popular vote in the 
Senate on September 29, 1969.

[[Page E887]]

  


                         The Birch Bayh Lecture

                           (By Jesse Wegman)

       I'd like to thank everyone for having me today: the 
     McKinney School of Law community, Dean Bravo, Assistant Dean 
     MacDougall and, of course, the Bayh family, especially Kitty 
     Bayh, who has been so generous with her time, her assistance 
     and her memories over the past few years.
       I am honored to give the first Birch Bayh lecture since his 
     passing in March of last year. And while I'm sad not to be 
     with you in person, I think it's very appropriate for this 
     talk to be taking place on September 17, Constitution Day--
     the day in 1787 that the framers in Philadelphia signed the 
     charter they had spent the past four months drawing up, 
     arguing about, threatening to walk out over--and yet still, 
     in the end, agreeing to sign and take the next step in this 
     audacious new experiment in self-government.
       It's appropriate because in any conversation about the 
     nation's founders, we must include the name Birch Bayh. He 
     shares with James Madison, the father of the Constitution, 
     the distinction of being the only Americans to have authored 
     more than one successful amendment to that document. This is 
     not an easy task. More than 11,000 amendments have been 
     proposed over the centuries, and only 27 have been adopted.
       I will note that when Birch Bayh pushed through his first 
     amendment, the 25th, he was just 36 years old--the same age 
     Madison was that summer in Philadelphia.
       So, now that we've put Senator Bayh in his proper place in 
     American history, I'd like to begin by reading you a short 
     section of my book. (To be fair, this is not included in the 
     book, although as I'll explain, I really wish it had been.)
       The Aero Commander 680, a twin-engine prop, descended 
     through heavy fog as it approached Barnes Airport, in western 
     Massachusetts. It was late Friday evening, June 19, 1964. On 
     board were two junior United States senators, Ted Kennedy of 
     Massachusetts and Birch Bayh of Indiana, along with Bayh's 
     first wife, Marvella, and an aide to Kennedy named Ed Moss.
       The four were en route from Washington, D.C., to the 
     Massachusetts Democratic Convention in Springfield, where 
     Bayh was to give the keynote speech. They had planned to 
     leave the capital earlier in the afternoon, but were held up 
     by the Senate's long-delayed vote on the landmark Civil 
     Rights Act, which finally passed at around 7:40 p.m. (Both 
     Kennedy and Bayh voted yes.)
       By the time the Aero Commander took off, the day's calm 
     weather had turned. Thunderstorms dotted the route, and the 
     pilot, Ed Zimny, had to weave his way around the rain and 
     winds. As the plane descended, it was knocked around like a 
     pinata. ``It seemed so dark and foggy,'' Marvella told a 
     reporter a few days later. ``I whispered to my husband, 
     `Aren't we in trouble?' '' He replied, ``Oh, no, we're doing 
     fine.''
       As soon as they broke beneath the cloudline at 600 feet, it 
     was clear something was very wrong. Bayh looked out the 
     window and saw a black line approaching. ``I thought it was 
     another storm, but it was the tops of trees,'' he said.
       They had flown directly into an apple orchard. The plane 
     skidded along ``like a toboggan,'' as Kennedy put it, until 
     the left wing snagged on a larger tree, cartwheeling the 
     aircraft to the left and shearing off parts of both wings. 
     The plane came to a stop on a hill three miles short of the 
     runway, its illuminated beacon slowly spinning, its nose 
     crumpled like a soda can.
       ``I remember mosquitoes coming in and absolute silence,'' 
     Kennedy recalled. The silence was broken by the sound of 
     Marvella's voice calling out for her husband, who had managed 
     to free himself from his seat belt and escape through a 
     broken window. Bayh's stomach was badly bruised and his right 
     arm was numb, but with his left arm he dragged Marvella out 
     through the window and laid her on the grass. He then 
     returned to the plane and called out, ``Are you all right up 
     there?'' Kennedy could hear, but he couldn't move or answer.
       Bayh headed off to find help, then became aware of the 
     smell of gasoline. ``The plane might catch on fire,'' he 
     said, running back. Hearing this, Kennedy found his voice. 
     ``I'm still alive!'' he cried. Bayh reached in and maneuvered 
     him out through the window, probably saving the 32-year-old's 
     life.
       ``It's not the kind of crash you're supposed to walk away 
     from,'' Bayh told reporters afterward.
       Years later, he still couldn't believe what he'd done. 
     ``We've all heard adrenaline stories about how a mother can 
     lift a car off a trapped infant,'' he said. ``Well, Kennedy 
     was no small guy, and I was able to lug him out of there like 
     a sack of corn under my arm.''
       After extracting his wife and his fellow lawmaker, Bayh 
     limped down to the road and tried to flag down a passing car. 
     Nine drove by before a pickup truck stopped. Ambulances soon 
     followed, and took the passengers to a nearby hospital. 
     Zimny, the pilot, was dead on arrival. Kennedy's aide, Ed 
     Moss, died a few hours later. Kennedy's back was broken in 
     six places, his lung was collapsed and he had significant 
     internal bleeding. He would remain in the hospital for six 
     months, much of it in traction. Birch and Marvella Bayh 
     were shaken and bruised, but basically unhurt.
       Okay, so I thought that was a fun way to start a chapter: a 
     plane crash! Two US senators! Dragging people to safety!
       My editor read it and said, no.
       As anyone who's a writer knows, ``No'' is often the most 
     painful and yet most necessary word you can hear. So 
     naturally, I pushed back, pleading to keep this story in. My 
     editor said, Jesse, all the parts of your book need to 
     contribute to the central argument. This does not do that. 
     It's not relevant. You know how it would be relevant? If 
     Birch Bayh crawled out of the smoking wreckage and said, by 
     God, I have to abolish the Electoral College!
       It was hard to accept, but he was right. All stories need 
     to be streamlined, to be directed so the listeners can follow 
     along. In that regard, editors are essential. They help you 
     find that central thread and follow it, always focusing on 
     what's important.
       The problem for Birch Bayh was that everything was 
     important. For him, all the parts *did* contribute to the 
     central argument.
       Imagine an editor confronting this: The youngest Speaker in 
     Indiana history; the author of two constitutional amendments; 
     the Senate sponsor of the Equal Rights Amendment; the author 
     of Title IX; the Bayh-Dole Act; and on and on and on.
       And on top of that, he literally walked away from a plane 
     crash? I mean, come on. He pulled his wife out of the burning 
     wreckage. He pulled out Ted Kennedy. He saved lives.
       An editor would say, stop! Hold up! No one will be able to 
     follow all this. Cut.
       Birch Bayh didn't cut. He just kept adding. His life filled 
     with a spirit of democracy and inclusion, a commitment to a 
     better, fairer, more just, more humane, more equal America. 
     So while I'm a firm believer in strong editing, I'm grateful 
     Birch Bayh didn't have an editor.
       And I keep coming back to that night in June 1964.
       The accident made the front page of the next morning's New 
     York Times, right next to the lead report on the Senate's 
     passage of the civil-rights bill. The headline read: 
     ``Senator Kennedy Hurt In Air Crash; Bayh Injured, Too.''
       Of course Kennedy got top billing. He was the brother of a 
     fallen president and a rising member of the nation's most 
     prominent political dynasty. Bayh, despite his late-night 
     heroics, was unknown to most Americans. At 36, he was not yet 
     two years into his first term as senator. Had he died that 
     night, like most people do when their airplane crashes, he 
     would have been remembered as a genial, progressive Indiana 
     politician who got along well with his colleagues. But he 
     didn't die. And the fluke of his survival turned out to be 
     one of those moments on which history pivots. Over the decade 
     following the crash, Bayh would find himself at the center of 
     the nation's biggest constitutional debates, and in the 
     process he became one of the most influential lawmakers in 
     American history.
       As I said, Birch Bayh holds a rare distinction: he is the 
     only American other than James Madison to have spearheaded 
     multiple successful amendments to the Constitution. He has 
     two under his belt so far: the 25th, adopted in 1967 to lay 
     down clear rules for replacing a president or vice president 
     who dies, resigns or becomes unable to govern; and the 26th, 
     adopted in 1971 to lower the voting age to 18 from 21. He may 
     yet to claim credit for a third--the Equal Protection 
     Amendment, which would prohibit discrimination on the basis 
     of sex, and for which Bayh was the lead Senate sponsor. With 
     his help, the ERA passed Congress in 1972. Last year it got 
     its 38th state ratification--enough (in theory, at least) for 
     it to become the 28th Amendment.
       Bayh's almost unequalled record of constitutional reform 
     speaks for itself, but the amendment that would have had the 
     most profound effect on the structure of American government 
     and society was the one he failed to pass--the one that got 
     away, as his staffers called it.
       Between 1966 and 1970, the young Indiana senator led a 
     vigorous, high-profile campaign to abolish the Electoral 
     College and elect the president by direct popular vote--a 
     goal he came closer to achieving than anyone since the 1787 
     convention in Philadelphia.
       Back then, it was a Pennsylvania delegate named James 
     Wilson, the most respected lawyer in the country, who pushed 
     throughout the summer for a direct vote. Like Wilson, Senator 
     Bayh fought hard and came up short. Like Wilson, he was 
     blocked by southern politicians intent on protecting their 
     outsized power, which they had seized and maintained through 
     two centuries of systematic racial violence and subjugation.
       Unlike Wilson, however, Senator Bayh didn't start out as a 
     believer in the popular vote. He favored modest tweaks to the 
     Electoral College, not a complete overhaul. Then he learned 
     more about the College's historical unfairness and the harms 
     it continued to inflict on American politics. Within months, 
     he became a convert to the cause of a direct presidential 
     election. And but for a handful of Senate votes one late 
     September afternoon in 1970, he may well have converted the 
     nation.
       Did you know about any of this? I didn't. Nor did most of 
     the people I've asked over the last few years, many of whom 
     were politically active adults in the late 1960s. What 
     explains this mass amnesia? An effort like Bayh's on an issue 
     like the Electoral College should be burned into America's 
     history books. But like Wilson's valiant but unsuccessful 
     push for a popular vote in Philadelphia, Bayh's has almost 
     completely disappeared down the public memory hole. I'd like 
     to pull it back up and see what it can teach us.

[[Page E888]]

       I've spoken about Birch Bayh's astonishing record of 
     accomplishment. But as someone who grew up following Boston 
     sports in the 1970s and 1980s, I have always been less 
     attuned to the successes than to the failures, to the near 
     misses.
       So in this talk I want to focus on the one that got away: 
     The Electoral College amendment.
       Obviously this matters to me because I wrote a book about 
     it. But, if I may, I also feel a sort of kinship with Senator 
     Bayh. He did not begin as a radical constitutional reformer. 
     After several years, however, he found himself where 
     virtually everyone who spends that much time studying the 
     electoral College does: as an unabashed advocate for a 
     popular vote.
       In following his journey of discovery into the way we 
     choose our president, I found myself on a similar track: one 
     of skepticism that transformed into full-on belief.
       I will start in the early 1960s, with Birch Bayh as a 
     first-year senator from Indiana looking to make a name for 
     himself in the world's greatest deliberative body. I'm going 
     to tell a shorter version of the story that's in Chapter 5 of 
     my book:
       Despite its important-sounding name, the Senate Judiciary 
     Committee's Subcommittee on Constitutional Amendments was a 
     sleepy affair in 1963.
       In theory it had a significant role to play--drafting 
     amendments to the Constitution and introducing them into 
     Congress to be voted on--but in practice the subcommittee had 
     done little of note since the days of Prohibition. When its 
     longtime chair, Estes Kefauver, died of a heart attack that 
     August, no one immediately stepped up to take his place. The 
     job wasn't that appealing.
       ``It was a graveyard,'' Bayh recalled years later. ``How 
     often do you amend the Constitution, for heaven's sakes?'' 
     (For the record: 27 times, the first 10 of which, known 
     collectively as the Bill of Rights, were adopted almost 
     before the original Constitution's ink was dry. Since then, 
     we've ratified a new amendment on average once every 13 
     years.)
       Bayh also knew that sitting on a committee was the best way 
     for a young senator to gain power and influence. By the 
     middle of 1963, only a few months after getting elected to 
     the Senate for the first time, Bayh had maneuvered his way 
     onto the Judiciary Committee. It was a prestigious post that 
     involved interviewing Supreme Court nominees, among many 
     other high-profile responsibilities. The problem for Bayh was 
     that he didn't want to be just a member of a gang; he wanted 
     to lead one, and all the Judiciary's subcommittee 
     chairmanships were spoken for. Then Estes Kefauver died.
       Bayh didn't volunteer to take over Kefauver's seat at 
     first, because it wasn't being offered. James Eastland, the 
     Judiciary Committee chairman, had begun the process of 
     shuttering the subcommittee entirely. By chance, Kefauver's 
     former chief of staff knew of Bayh's ambitions and suggested 
     that he go to Eastland in person and make the case for saving 
     it. In a 2009 interview, Bayh remembered his first meeting 
     with Eastland, a staunch segregationist from Mississippi:

       So I got an appointment and saw Senator Eastland. He got a 
     little scotch and ice. I didn't really drink at the time, but 
     I may have taken a sip or two of it. And I made my pitch: 
     ``Mr. Chairman, when I went to law school, constitutional law 
     was my most exciting subject. Boy, it would be my dream come 
     true if I could be Chairman of that Subcommittee.''
       He said, ``Well, Birch, I hope you understand here, but 
     Allen Ellender [a conservative senator from Louisiana] has 
     been giving us a rough time. I sort of told him I'd close 
     this down. I hope you understand, boy.''
       I said, ``Mr. Chairman, I'd even put one of my own staff 
     people there. It wouldn't cost you a nickel.''
       ``I just made up my mind, Birch. I hope you understand.''
       ``Thank you, Mr. Chairman,'' and I left.
       The next morning, 9:00, my secretary said, ``You've got 
     Chairman Eastland on the phone.''
       ``Birch?''
       ``Yes, Mr. Chairman.''
       ``I want you to be Chairman of that Subcommittee. I think 
     you'd be a good one.''
       Click.
       Whenever else could a plantation owner, one step away from 
     being a slave master, an avowed segregationist, ever do 
     anything to get a little chit with a liberal young turk like 
     me?

       If Bayh had any pretensions about the new job, they were 
     snuffed out fast. Eastland, who had apparently taken Bayh's 
     won't-cost-a-nickel promise literally, parked the 
     subcommittee and its small staff in a converted men's room on 
     the third floor of the Capitol building. Jay Berman, an aide 
     and later the senator's chief of staff, described it to me. 
     ``It had no windows and it was very small. No claustrophobic 
     could've worked there.''
       On the plus side, the toilets had been removed.
       In politics as in life, everything can change in an 
     instant. Bayh was officially named chair on September 30. 
     Fifty-three days later, President John F. Kennedy was 
     assassinated. And just like that, a graveyard job run out of 
     a bathroom was about to become one of the most important in 
     the country.
       Bayh was faced with a suddenly urgent challenge: what to do 
     if a president becomes incapacitated while in office? 
     Previous presidents had informal arrangements in place to 
     deal with such a scenario, but the Constitution itself 
     provided no next steps. It said only that if a president 
     can't serve, the vice president takes over, and any further 
     details can be hammered out by Congress.
       The nation was still absorbing the shock of Kennedy's death 
     when Bayh got to work. On December 12, he introduced a 
     resolution to amend the Constitution by adding clear rules 
     for presidential and vice presidential succession in cases of 
     emergency.
       Under Bayh's guidance, the bill passed both houses of 
     Congress and went out to the states for ratification. The 
     Twenty-Fifth Amendment went into effect a little more than 
     three years after Bayh first introduced it. It was a 
     remarkable accomplishment for a junior senator who, in the 
     words of a 1970 New York Times profile, ``had flunked his bar 
     exam the first time and had practiced law only a couple of 
     months before coming to Washington.''
       Bayh's success on the Twenty-Fifth Amendment transformed 
     him into a respected lawmaker whose opinions mattered, 
     particularly when it came to the Constitution.
       That's why President Lyndon Johnson turned to him for his 
     next big project: amending the Electoral College.
       There have been, since the nation's founding, roughly 800 
     attempts to amend or abolish the Electoral College. With the 
     exception of one--the 12th Amendment--all have failed. So 
     what was Lyndon Johnson trying to do?
       He was trying to save the Democratic party from insurgent 
     southerners who were peeling off as the party turned against 
     segregation and toward civil rights. Longtime Democrats like 
     Strom Thurmond in South Carolina were not fans of racial 
     equality, and they were running third-party campaigns to try 
     to undercut the national party.
       Across the south, they urged electors to be ``faithless''--
     that is, to break their pledges to vote for the Democratic 
     nominee in favor of third-party segregationist candidates 
     like Harry Byrd. This alarmed the leadership of both major 
     parties, and especially President Johnson, whose support 
     depended on southern Democrats. So he asked Birch Bayh to 
     take the lead on drafting an amendment that would eliminate 
     the risk of faithless electors.
       Senator Bayh took up the challenge. In February 1966, he 
     held the subcommittee's first hearing on amending the 
     Electoral College.
       Right out of the gate, he shot down any prospect of 
     abolition. ``Putting it optimistically,'' he said in his 
     opening remarks, the chances of Congress passing a popular-
     vote amendment were ``extremely slim, if not hopeless.''
       And yet, a few months later, after questioning multiple 
     witnesses, reading thousands of pages of archival and 
     statistical documents, Senator Bayh realized he had been 
     wrong. He was aiming too low, getting trapped in the details 
     of endless debates about ratios and percentages. He was 
     missing the bigger picture.
       Bayh had come to see, as he would later quote from the 
     historian John Roche, that the College was ``merely a jerry-
     rigged improvisation which has subsequently been endowed with 
     a high theoretical content.''
       On top of that, the nation in the early 1960s was in the 
     midst of a democratic awakening. From the civil rights 
     movement to the one-person-one-vote cases at the Supreme 
     Court, from the abolition of the poll tax to the Voting 
     Rights Act, America's long history of racial 
     discrimination and exclusion from the ballot box was being 
     challenged like never before. Birch Bayh wasn't just 
     sensitive to all of this, he was energized by it. And when 
     he looked at that bigger picture, the problems with the 
     Electoral College seemed much more serious.
       Jay Berman, Bayh's staffer, recalled to me the feeling that 
     emerged after months of hearings. ``All of a sudden, you're 
     in the weeds and people are saying, `You're amending the 
     Constitution for this?' Look, we have fundamental issues 
     here. We've expended so much time and effort to expand the 
     franchise. You've been involved in all these civil rights 
     bills. What are the consequences for the present system if 
     the person with the most votes doesn't win? What was all this 
     about if it doesn't mean that every vote should count?''
       On May 18, after months of hearings and expert witnesses 
     and statistical reports, Birch Bayh stood up on the floor of 
     the Senate and gave what I consider one of the strongest and 
     most eloquent arguments for the popular vote in the nation's 
     history. I will quote from it at length, because his words 
     are full of hope and inspiration, and they deserve being 
     repeated.

       Mr. President, from the inception of our nation, 
     controversy and complexity has surrounded the question of how 
     to choose the President of the United States.
       Indeed, one of the framers of the Constitution, James 
     Wilson, described this problem as ``the most difficult of 
     all'' to resolve at the Convention. . . .
       Bayh acknowledged the hundreds of failed efforts to fix the 
     system, then he said,
       Today, Mr. President, the situation is different. Today, 
     for the first time in our history, we have achieved the goal 
     of universal suffrage regardless of race, religion or station 
     in life . . . .
       Today, the next logical outgrowth of the persistent and 
     inevitable movement toward the democratic ideal is the 
     popular election

[[Page E889]]

     of our national officers--an election in which each person 
     has the right to vote for President without an artificial 
     barrier separating him from the choice of his Chief 
     Executive.
       . . .

       Bayh then noted that the subcommittee had considered many 
     different amendment proposals, before rejecting them all.

       It may well be that mere procedural changes in the present 
     system would be like shifting around the parts of a creaky 
     and dangerous automobile engine, making it no less creaky and 
     no less dangerous. What we may need is a new engine, Mr. 
     President, because we are in a new age.
       . . . Some may say this proposal is too new, too radical a 
     break with tradition. In all honesty, Mr. President, I was 
     among that number only a few short months ago. Then, we began 
     hearings on the problem. I consulted with scholars in the 
     field. I did a great deal of study and reflection. I came to 
     the conclusion that this idea was not truly a break with 
     tradition at all. It was, in fact, a logical, realistic and 
     proper continuation of this nation's tradition and history--a 
     tradition of continuous expansion of the franchise and 
     equality in voting.

       He ran through the list: ending property qualifications and 
     giving the vote to poorer white people; the abolition of 
     slavery and the enfranchisement of blacks . . . of women, of 
     Jews and Catholics . . .

       Today, we have witnessed the climax of the long struggle to 
     guarantee Negroes the right to exercise the franchise--the 
     14th, 15th and 24th Amendments; the Civil Rights Acts of 
     1957, 1960 and 1964, and the Voting Rights Act of 1965.
       In fact, we have only one election remaining, Mr. 
     President, wherein some votes are not equal to others and 
     wherein millions of votes do not count in the final result--
     and that is in the election of the most powerful political 
     officer in the world, the President of the United States.
       It is not radical to suggest that we abolish the Electoral 
     College and elect our President by direct popular vote--no 
     more so than if we suggested the advantages of grounding an 
     open-cockpit biplane in favor of a supersonic jet.
       Direct election of the President would make that office 
     truly national. We elect our local official locally; our 
     Congressmen by districts to protect district interests; our 
     Governors and Senators statewide. Why should we not elect the 
     President and Vice President nationally? The President has no 
     authority over state government. He cannot veto a bill 
     enacted by a state legislature. Why then should he be elected 
     by state-chosen electors? He should be elected directly by 
     the people, for it is the people of the United States to whom 
     he is responsible.
       Direct election would greatly encourage voter 
     participation. Today, if a state votes traditionally in the 
     column of one party, voters of the other party correctly 
     assume that their vote will count for naught. Under direct 
     election, these votes will be as important as votes cast 
     anywhere else.
       In sum, direct popular election brings with it many virtues 
     and no vices; it would substitute clarity for confusion, 
     decisiveness for danger, popular choice for political chance.

       Bayh finished with what we would today call the ``mic 
     drop'':

       James Madison, the father of our Constitution, knew that 
     the President had to be independent of the Congress. He knew, 
     also, that in deciding upon a means of choosing a President 
     some compromise would be reached. But he had his own ideas as 
     to how the President would best be elected.
       Madison said that ``the people at large . . . was the 
     fittest in itself.''
       We are at long last arriving at the place and time in our 
     history where meaning has been brought to the preamble of our 
     Constitution--``We, the People of the United States . . .'' 
     Today we are, indeed, ``We, the People . . .''
       If there was doubt about it in the early years of the 
     Republic, there can be no doubt today. Let us echo Madison. 
     Let us put our trust in the people.

       This was the key. More than any political or partisan 
     advantage, Senator Bayh wanted what was best for the American 
     people.
       And he people, as it turned out, felt the same way.
       On the same day as Bayh's speech, Gallup's first-ever 
     national poll on a direct vote for president found that 
     sixty-three percent of Americans said they favored dumping 
     the Electoral College for a popular vote. Twenty percent 
     opposed it, and 17 percent had no opinion.
       Soon the movement had support from across the political 
     spectrum--from the Chamber of Commerce to the League of Women 
     Voters, from organized labor to the American Bar Association. 
     In a report that would later be quoted in the New York Times, 
     the ABA called the Electoral College ``archaic, undemocratic, 
     complex, ambiguous, indirect, and dangerous.''
       The range and depth of support for a popular vote gave Bayh 
     the confidence that he was on the right track. Still, he 
     moved cautiously. As the 1968 presidential race heated up, he 
     pulled back on the popular vote campaign. Merits aside, any 
     debate over how America might choose its president in the 
     future would surely get tangled up in the politics of how 
     America was choosing its president in 1968.
       What Bayh couldn't know was how much that year's election--
     and the collective heart attack it gave the nation--would 
     help his cause.
       The 1968 election was primarily between Richard Nixon and 
     Hubert Humphrey. But it was a third-party candidate--George 
     Wallace, the former Alabama governor and arch-
     segregationist--who nearly managed to deadlock the vote and 
     force Congress to pick the winner. Wallace won the most votes 
     throughout the deep South, and earned 46 electoral votes, the 
     last time any third-party candidate has won any at all. His 
     aim was not to win the election outright, but to prevent 
     either Nixon or Humphrey from winning a majority of Electoral 
     College votes. In that scenario, the Constitution orders the 
     House of Representatives to choose the president, with each 
     state getting a single vote. Wallace thought that if both 
     candidates needed him to help push them over the top, he 
     could make whatever demands he wanted.
       Wallace failed in the end. Nixon won a majority of 
     electors. But he succeeded in highlighting just how bizarre 
     and dangerous the Electoral College could be. It was the 
     first time millions of Americans had given the system a 
     thought. The prospect of an unreconstructed racist extorting 
     the presidency horrified them. The best-selling author James 
     Michener wrote a whole book advocating a switch to the 
     popular vote. He called the Electoral College a ``time bomb 
     lodged near the heart of the nation.''
       Meanwhile, Birch Bayh was riding the wave of the 1968 
     election, gathering support across the country for a major 
     constitutional reform. By the end of that year, polls showed 
     more than 80 percent of Americans in favor of a national 
     popular vote for president.
       In September 1969, the House voted overwhelmingly to 
     abolish the Electoral College and replace it with a direct 
     popular vote. It was a bipartisan effort. Even President 
     Nixon got on board, and polls of state legislatures suggested 
     strong support throughout the country. All signs pointed to 
     another successful amendment for Mr. Bayh and a radical 
     change in the way Americans chose their presidents.
       All signs but one.
       As soon as the amendment reached the Senate, it was blocked 
     by Southern segregationists, led by Strom Thurmond of South 
     Carolina, who were well aware that the Electoral College had 
     been created to appease the slaveholding states. They were 
     also aware that it continued to warp the nation's politics in 
     their favor, since millions of black voters throughout the 
     South were effectively disenfranchised by restrictive 
     registration and voting laws. Even those who were able to 
     vote rarely saw their preferences reflected by a single 
     elector. A popular vote would make their voices equal and 
     their votes matter--and would encourage them to turn out at 
     higher rates.
       The Southerners delayed and filibustered the amendment for 
     months. On Sept. 29, 1970--50 years ago this month--the last 
     attempt to end the filibuster failed by five votes. It was 
     another echo of the way the Electoral College had been 
     preserved for the benefit of white political power, 
     particularly in the south.
       Now here's the really interesting part. The segregationists 
     had help from a key constituency: blacks and ethnic 
     minorities in northern cities like New York City and Chicago. 
     Why? Because at the time, New York was the nation's biggest 
     and most important swing state. And racial and ethnic 
     minorities in the big cities decided how it swung. These 
     voters understood that the Electoral College, using statewide 
     winner-take-all laws, gave them disproportionate power in 
     choosing the president. They didn't want to give up that 
     power any more than the southerners did.
       Strom Thurmond took advantage of this fact. He sent 
     personal telegrams to prominent black and Jewish leaders, 
     warning them of the consequences of supporting a direct 
     popular vote. This made Birch Bayh furious. Here's what he 
     said in a 2009 interview:

       He told these groups, ``What you're going to do is, you're 
     going to give up your advantage to have influence to sway 
     these large electoral votes if you have a direct popular 
     vote. It will just be confined to one person, one vote. You 
     won't be able to sway that whole group of electors,'' which 
     is true, of course.
       A couple of these guys . . . came to my office and said, 
     ``You're going to have to back away from this.''
       I said, ``What do you mean?''
       They said, ``Well, it would give us less power.''
       I finally said--the only time while I was there, in my 
     eighteen years--I said, ``Look, I busted my tail to see that 
     each of you and your constituencies got one person, one vote. 
     Now you're telling me that if you have 1.01, you want to keep 
     it? Get your rear ends out of my office and don't come 
     back.''

       Senator Bayh reintroduced his Electoral College amendment 
     in every session of Congress through the 1970s, until he lost 
     re-election in 1980.
       With Bayh's departure, the Senate lost its best advocate 
     for a national popular vote. ``No one was a better legislator 
     than he was and he couldn't get it done,'' Jay Berman told 
     me. ``It's just such an empty feeling because it was so right 
     to do. And we couldn't do it.''
       For the final portion of this talk, I'd like jump forward a 
     half century, to today. The 21st century is barely two 
     decades old, and yet it has already been defined by the 
     Electoral College's anti-majoritarian distortions.

[[Page E890]]

       It happened first on Nov. 7, 2000, when Vice President Al 
     Gore was the choice of the American people, with more than 
     half a million more votes around the country than George W. 
     Bush. But Bush won the White House thanks to a few hundred 
     ballots in Florida, and a recount stopped short by the 
     Supreme Court.
       It happened again in 2016. Two times in less than two 
     decades. And there's a very plausible chance it could happen 
     again in November.
       If Senator Bayh were here, I know he would say this is a 
     crisis for our democracy. It is a crisis for our republic.
       In fact I don't have to speculate. He stayed deeply 
     involved in the politics of electoral reform after leaving 
     the Senate. In 2005, a team of lawyers and activists devised 
     a plan to elect the president by a national popular vote, not 
     by abolishing the Electoral College but by using it exactly 
     as it was designed in the Constitution. They came to 
     Washington to test the political waters, to see whether they 
     could get support for this plan. The first person they spoke 
     to was Birch Bayh.
       I was lucky enough to meet the senator--two years ago this 
     week, at his home on the eastern shore of Maryland. It was 
     the last interview he gave before his death. We were joined 
     by his wonderful wife, Kitty, and Kevin Feely, one of his 
     longtime Senate staffers.
       When I asked him about his early life, he recalled a 
     childhood spent working on his grandparents' farm in Terre 
     Haute. ``Nobody in my family background had ever been 
     involved in politics,'' he said. ``When my father found out 
     what I was doing, I think he wondered what he'd done wrong as 
     a parent.''
       On the topic of the popular-vote amendment, the pain of the 
     loss was still there. If anything, it was keener, now that 
     the Electoral College has awarded the White House to two 
     popular-vote losers in the past two decades.
       ``I don't know,'' he told me when I asked how he thought of 
     the issue today. ``I like to think as a country, as we grow 
     older, we learn. It just makes such good sense.''
       I asked about the familiar charge that eliminating the 
     Electoral College would lead to ``mob rule.'' He was 
     nonplussed. As he saw it, the ``mob'' was the American 
     people. He said, ``That, to me, is the positive end of it. 
     Why shouldn't they be able to determine their own destiny?''
       This was emblematic of Bayh's broader commitment to 
     fairness, equality and inclusion. Birch Bayh's America is a 
     big, open, welcoming place. It has room for everyone, and it 
     treats all of us as equals.
       I think it's fair to say that Birch Bayh was one of this 
     nation's founding fathers. He changed the country for the 
     better, and he would have done even more if he could. The 
     fact that he didn't succeed in changing how we choose our 
     President . . . well, Madison didn't get everything he wanted 
     either. But the seeds have been planted.
       Speaking of seeds, I found a short article about Senator 
     Bayh in a Reader's Digest from November 1948. It was titled 
     ``GI Ambassador.''
       Of course, we know that the senator was raised in a farming 
     family, and had a knack for the work. When he was a teenager, 
     he won $200 for the best teenaged tomato patch in the state. 
     So, when he joined the army and learned he was being shipped 
     overseas to help with the recovery effort, what's the first 
     thing he did?
       He ordered seeds. ``Please send at once $4 worth of 
     vegetable garden seeds,'' he wrote to the county agent in 
     Terre Haute. ``Be sure to put in some sweet corn.''
       He got 18 packets in the mail. But when he showed up for 
     inspection, he nearly lost them all. ``Regulations state that 
     you can take only military equipment and personal 
     belongings,'' his sergeant said. ``But vegetable seeds--get 
     rid of 'em!''
       So he broke open each packet and emptied its contents into 
     a different pocket on his uniform. When he arrived in the 
     small German village where he was stationed, he slowly 
     redistributed the seeds into their 18 packets. ``It was quite 
     a job,'' he said. ``But I did want a garden.''
       He helped build 45 garden plots and got 2 village children 
     to tend each plot. By the end of the growing season, they'd 
     produced mountains of cabbage, beans, spinach, turnips, 
     tomatoes, cucumbers, beets, lettuce, kale, chard . . . and 
     sweet corn. The village was fed all winter.
       In an interview years later, he said, ``The thing I love 
     about agriculture is that it's pretty hard to get away from 
     the facts. There it is. Mother Nature takes care of it. If 
     you do something wrong, you pay.''
       Birch Bayh was a farmer of democracy. He planted the seeds 
     of a more equal and more just America. He helped us cultivate 
     a national debate by connecting our modern lives to the 
     fundamental principle of universal human equality embedded in 
     the Declaration of Independence.
       This was not a dry intellectual exercise for him. Bayh's 
     conviction was profound, and his inability to achieve a 
     national popular vote pained him deeply for the rest of his 
     life. It was, he would say, the single greatest 
     disappointment of his career.
       As an example, in the fall of 2000, John Feerick, the 
     former dean of Fordham Law School and an instrumental figure 
     in the passage of the 25th Amendment, was teaching a seminar 
     at Georgetown Law School, and invited Senator Bayh as a guest 
     speaker.
       Bayh visited the class in October. In a few weeks, the 
     nation would be upended with the drama and chaos of a 
     contested election--the recount in Florida, the butterfly 
     ballot, the hanging chads, the Brooks Brothers riot. . . and 
     finally, a tense resolution by the Supreme Court, giving 
     George W. Bush a bare Electoral College majority, and sending 
     the first popular-vote loser to the White House in more than 
     a century.
       All of that was in the future when Feerick, sitting next to 
     Bayh in his law-school seminar, posed what seemed at the time 
     like an innocent hypothetical.
       ``I put the question to him,'' Feerick said, `` `What do 
     you think the reaction of the American people will be if 
     there's a difference between the electoral vote and the 
     popular vote winner?' ''
       ``And his response to me was that the people would accept 
     the legal system we have, and the outcome of that system. The 
     one we have. And then he started to cry.''
       I want to return a final time to the words Birch Bayh spoke 
     on the Senate floor in 1966. A national popular vote is ``a 
     logical, realistic and proper continuation of this nation's 
     tradition and history--a tradition of continuous expansion of 
     the franchise and equality in voting.''
       That is the essence. In my book I write, ``Maybe this is 
     the real American exceptionalism: our nation was conceived 
     out of the audacious, world-changing idea of universal human 
     equality. And though it was born in a snarl of prejudice, 
     mistrust, and exclusion, it harbored in its DNA the code to 
     express more faithfully the true meaning of its founding 
     principles. Over multiple generations, and thanks to the 
     tireless work and bloody sacrifices of millions of 
     Americans--some powerful but most just regular people who 
     wanted to be treated the same as everyone else--that code has 
     been unlocked, and those principles, slowly but surely, have 
     found expression.''
       I believe a central reason Birch Bayh's effort in the late 
     1960s came so close was that this was his argument. It was 
     irrefutable, and it resonated with millions of Americans.
       Now here we are, 50 years later, facing the same questions 
     he faced, fighting the same battles he fought, and relying 
     all along on his wisdom, his vision and his humanity to help 
     us find our way to an answer--and to a more perfect Union.

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