[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 10. Presidential Elections; Electoral College]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1557]
 
                               CHAPTER 10
 
               Presidential Elections; Electoral College


[[Page 1557]]



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    Commentary and editing by John R. Graham, Jr., J.D. and Roy Miller, 
LL.B.
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     Sec. 1. In General; Electoral Certificates
     Sec. 2. Joint Sessions to Count Electoral Votes
     Sec. 3. Counting Votes; Objections to Count
     Sec. 4. Presidential Nominations for Vice President

  
                         DESCHLER'S PRECEDENTS


                          INDEX TO PRECEDENTS

Certificates ascertaining electors
    generally, see Sec. 3.5
    transmittal of, to the House, Sec. 1.l
Certificates of electoral Votes
    conflicts relative to, Sec. 3.5
    objections to vote count, Sec. 3.6
    transmittal of, to the House, Sec. Sec. 1.1 et seq.
Joint session to count electoral votes
    concurrent resolution providing for, Sec. 2.1
    convening of, Sec. 2.4
    division of, to consider objections, Sec. 3.6
    presiding officer for, Sec. 2.5
    recesses in connection with, Sec. Sec. 2.2, 2.3
    statutory procedures relative to, Sec. 2.6
Presidential nominations for Vice President
    confirmation of, Sec. 4.3
    referral of, to committee, Sec. 4.2
    transmission of, by message, Sec. 4.1
Tellers to count electoral votes
    appointment of, in the House, Sec. Sec. 3.1, 3.2
    appointment of, in the Senate, Sec. 3.4
    substitution for, in the House, Sec. 3.3
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    Commentary and editing by John R. Graham, Jr., J.D. and Roy Miller, 
LL.B.

[[Page 1559]]



 
                               CHAPTER 10
 
               Presidential Elections; Electoral College
 
Sec. 1. In General; Electoral Certificates


    Under the U.S. Constitution, both the House and Senate formally 
participate in the process by which the President and Vice President 
are elected. Congress is directed by the 12th amendment to receive and, 
in joint session, count the electoral votes certified by the states. 
And if no candidate receives a majority of the electoral vote, the 
House of Representatives is directed to elect the President, while the 
Senate is directed to elect the Vice President.(1)
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 1. In the Presidential election of 1800, the electors produced a tie 
        vote by casting an equal number of votes for Thomas Jefferson 
        and Aaron Burr. Thus the election had to be determined by the 
        House of Representatives, which ultimately voted for Jefferson. 
        See 3 Hinds' Precedents Sec. 1931. For a general discussion of 
        early electoral-count procedures, see 3 Hinds' Precedents 
        Sec. Sec. 1911-1980 and 6 Cannon's Precedents Sec. Sec. 438-
        446.
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    This method of selecting a President, later to become known as the 
``electoral college,'' came about as the result of a compromise after 
lengthy debate at the Constitutional Convention of 1787. The debate 
centered on whether the President should be chosen by popular vote, by 
the Congress, or by some other method. Election by direct popular vote 
was rejected because it was believed that the people would have 
insufficient knowledge of the various candidates, and because it was 
assumed that the people would be unable to agree on a single candidate. 
A plan that would give Congress the power to select the President was 
also rejected, because of its potential threat to executive 
independence. Finding itself in disagreement on both plans, the 
convention adopted a compromise under which each state was given the 
power to appoint electors to be chosen in a manner specified by each 
state legislature. The electors in each state, who were to be equal to 
the total number of that state's Representatives and Senators, would 
then meet and cast votes for President and Vice President.
    Historically, the counting of electoral votes has been for the most 
part a mere formality, because the result of the electoral vote has 
almost invariably been the same as the result of the popular 
vote.(2)
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 2. There have been rare instances in which the result of the electoral 
        vote has differed from the result of the popular vote. For 
        example, in the Hayes-Tilden election of 1876, determinations 
        by the House and Senate with respect to certain disputed 
        electoral votes resulted in the election of Hayes, although 
        Tilden had received a majority of the popular vote. See 3 
        Hinds' Precedents Sec. Sec. 1953-1956.

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[[Page 1560]]

    The electoral vote has generally followed the popular vote because 
electors came to be chosen merely as representatives of the political 
parties and because the state legislatures adopted a unit-rule system 
under which all of a state's electoral votes are to be cast for the 
party which wins a plurality of popular votes statewide.
    The 12th amendment states in part:

        The Electors shall meet in their respective states, and vote by 
    ballot for President and Vice-President . . . they shall name in 
    their ballots the person voted for as President, and in distinct 
    ballots the person voted for as Vice President, and they shall make 
    distinct lists of all persons voted for as President, and of all 
    persons voted for as Vice-President, and the number of votes for 
    each, which lists they shall sign and certify, and transmit sealed 
    to the seat of the government of the United States, directed to the 
    President of the Senate; [t]he President of the Senate shall, in 
    presence of the Senate and House of Representatives, open all the 
    certificates and the votes shall then be counted.

    On the sixth day of January after the electors of the several 
states have met to cast votes for President and Vice President, the 
Congress, in accordance with the provisions of law,(3) 
convenes in joint session,(4) the Senate and House of 
Representatives meeting in the Hall of the House, to exercise its 
constitutional responsibility for counting the electoral vote.
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 3. 3 USC Sec. 15.
 4. See Sec. 2.4, infra.
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    At one o'clock in the afternoon on that day, the joint session of 
the two Houses is called to order by the President of the 
Senate,(5) the individual designated by statute 
(6) to serve as the joint session's presiding officer. 
Thereupon, the tellers,(7) who have previously been 
appointed on the part of each House,(8) take their 
respective places at the Clerk's desk. According to the alphabetical 
order of the states, all the previously transmitted certificates and 
papers purporting to be certificates of votes given by the electors are 
then opened by the President of the Senate and handed to the 
tellers.(9) Each certificate so received is read by the 
tellers in

[[Page 1561]]

the presence and hearing of the two Houses. After the reading of each 
certificate, the President of the Senate calls for objections, if any.
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 5. See Sec. 2.5, infra.
 6. 3 USC  15.
 7. See Sec. Sec. 3.1-3.4, infra, for appointment of tellers.
 8. See Sec. 2.1, infra.
 9. See Sec. 2.1, infra.
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    In the event that a written objection should be raised, properly 
signed by at least one Senator and one Member of the House of 
Representatives, and when all objections so made to any vote or paper 
from a state have been received and read, the joint session divides, 
the Senate repairing to the Senate Chamber, and all such objections are 
submitted to and considered by each House meeting in separate 
session.(10)
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10. See Sec. 3.6, infra.
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    Pursuant to the provisions of the U.S. Code, which govern the 
procedures in both Houses in the event they divide to consider an 
objection, each Senator and Representative may speak to such objection 
for five minutes, and not more than once; and after such debate has 
lasted two hours, the presiding officer of each House is required to 
put the main question without further debate.(11) When the 
two Houses have voted, they immediately again meet in joint session, 
and the presiding officer then announces the decision on the objections 
submitted.
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11. 3 USC Sec. Sec. 15, 17.
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    Once all objections to any certificate or paper from a state have 
been so decided, or immediately following the reading of such 
certificate or paper when no objections thereto are raised, the tellers 
make a list of the votes as they appear from the 
certificates.(12~) The result of the count is then delivered 
to the President of the Senate who thereupon announces the state of the 
vote. This announcement is deemed by law a sufficient declaration of 
the persons, if any, elected President and Vice President of the United 
States. The announcement, together with a list of the votes, is then 
entered in the Journals of the two Houses.(13)
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12. See 3 USC Sec. 15.
13. 3 USC Sec. 15.
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    In addition to its responsibilities in ascertaining and counting 
the electoral votes cast for President and Vice President, the Congress 
has been delegated a further constitutional duty relative to the 
selection of the Vice President. Pursuant to section 2 of the 25th 
amendment to the U.S. Constitution, whenever there is a vacancy in the 
Office of Vice President the President nominates a Vice President to 
take office upon confirmation by a majority vote of both 
Houses.(14)
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14. See Sec. Sec. 4.1-4.3, infra.
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    The House and Senate also have important responsibilities

[[Page 1562]]

under the 20th and 25th amendments of the U.S. Constitution with 
respect to Presidential succession and disability. The 20th amendment 
sets forth the procedure to be followed when the President-elect and 
Vice President-elect fail to qualify at the commencement of their 
terms. Congress also has the duty, under the 25th amendment, of 
determining disputes as to Presidential 
disability.                          -------------------

Transmittal and Presentation of Certificates

Sec. 1.1 Copies of the certificates identifying the electors appointed 
    in a state forwarded by the Governor of each state to the 
    Administrator of General Services are, pursuant to 3 USC Sec. 6, 
    transmitted in turn to the House; on one occasion, where a 
    certificate was received on the day reserved for the counting of 
    the electoral votes, the Speaker, in order that the receipt of the 
    certificate would appear in the Record before the proceedings of 
    the joint session to count the electoral votes, laid the 
    communication before the House at the beginning of the session.

    On Jan. 6, 1961,(15~) the Speaker (16) laid 
before the House the following communication which was read and, with 
accompanying papers, referred to the Committee on House Administration:
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15.  107 Cong. Rec. 288, 87th Cong. 1st Sess.
16.  Sam Rayburn (Tex.).

                                              General Services
                                                 Administration,

                                Washington, D.C., January 6, 1961.
                                                   Hon. Sam Rayburn,
           Speaker of the House of Representatives, Washington, D.C.

            Dear Mr. Speaker: Transmitted herewith is a copy of the 
        certificate of ascertainment received today from the State of 
        Hawaii, in conformity with the final clause of section 6, title 
        3, United States Code.
              Sincerely yours,

                                                Franklin Floete,
                                                    Administrator.

                                                  State of Hawaii.
          To the Administrator of General Services, Pursuant to the 
                                          Laws of the United States.

            I, William F. Quinn, Governor of the State of Hawaii, do 
        hereby certify that the returns of votes cast for electors of 
        President and Vice President of the United States of America, 
        for the State of Hawaii, at an election held therein for that 
        purpose, on the Tuesday after the first Monday in November, in 
        the year of our Lord 1960, agreeably to the provisions of the 
        laws of the said State, and in conformity with the Constitution 
        and laws of the United States, for the purpose of giving in 
        their votes for President and Vice President of the United 
        States, for the respective terms prescribed by the Constitution 
        of the United States, to begin on the 20th day of January in 
        the year of

[[Page 1563]]

        our Lord 1961, were, ascertained by judgment of the circuit 
        court of the first judicial circuit, State of Hawaii, in 
        proceedings entitled Herman T. F. Lum et al., v. Gavien A. Bush 
        et al. (Civil No. 7029), entered on the 30th day of December 
        A.D. 1960, and that the list of persons voted for and the 
        number of votes cast for each, pursuant to said judgment, 
        respectively, is as follows:
            Republican Party: Gavien A. Bush, 92,295; J. Howard 
        Worrall, 92,295; O. P. Soares, 92,295.
            Democratic Party: William H. Heen, 92,410; Delbert E. 
        Metzger, 92,410; Jennie Wilson, 92,410.
            And I further certify that: William H. Heen, Delbert E. 
        Metzger, and Jennie Wilson were appointed electors of President 
        and Vice President of the United States of America, for the 
        State of Hawaii, at said election.
            Given under my hand and the seal of the State, this 4th day 
        of January, in the year of our Lord 1961.

                                               William F. Quinn,

                                               Governor of Hawaii.

Sec. 1.2 Where certificates of electoral votes had been received from 
    different slates of electors from a state, and each slate purported 
    to be the duly appointed electors from that state, the Vice 
    President presented the certificates, with all attached papers, in 
    the order in which they had been received.

    On Jan. 6, 1961,(17) during proceedings in the joint 
session of the two Houses incident to the opening of the certificates 
and ascertaining and counting of the votes of the electors of the 
several states for President and Vice President, the presiding officer 
(18) handed to the tellers, in the order in which they had 
been received, certificates of electoral votes, with all attached 
papers thereto, from different slates of electors from the State of 
Hawaii. Without objection, the Chair instructed the tellers to count 
the votes of those electors named in the certificate of the Governor of 
Hawaii dated Jan. 4, 1961 (discussed more fully in Sec. 3.5, infra).
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17.  107 Cong. Rec. 288-91, 87th Cong. 1st Sess.
18.  Richard M. Nixon (Calif.).
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                               CHAPTER 10
 
               Presidential Elections; Electoral College
 
Sec. 2. Joint Sessions to Count Electoral Votes

Concurrent Resolution Providing for Joint Session

Sec. 2.1 A concurrent resolution providing for a joint session to count 
    the electoral votes for President and Vice President may be 
    originated by the Senate.

    On Jan. 3, 1973,(19) Mr. Thomas P. O'Neill, Jr., of 
Massachusetts,
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19. 119 Cong. Rec. 30, 93d Cong. 1st Sess. For additional recent 
        examples see 115 Cong. Rec. 36, 91st Cong. 1st Sess., Jan. 3, 
        1969; 111 Cong. Rec. 26, 89th Cong. 1st Sess., Jan. 4, 1965; 
        and 107 Cong. Rec. 26, 87th Cong. 1st Sess., Jan. 3, 1961.
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[[Page 1564]]

called up and asked for the immediate consideration of a Senate 
concurrent resolution:

                               S. Con. Res. 1

        Resolved by the Senate (the House of Representatives 
    concurring), That the two Houses of Congress shall meet in the Hall 
    of the House of Representatives on Saturday, the 6th day of January 
    1973, at 1 o'clock postmeridian, pursuant to the requirements of 
    the Constitution and laws relating to the election of President and 
    Vice President of the United States, and the President of the 
    Senate shall be their Presiding Officer; that two tellers shall be 
    previously appointed by the President of the Senate on the part of 
    the Senate and two by the Speaker on the part of the House of 
    Representatives, to whom shall be handed, as they are opened by the 
    President of the Senate, all the certificates and papers purporting 
    to be certificates of the electoral votes, which certificates and 
    papers shall be opened, presented, and acted upon in the 
    alphabetical order of the States, beginning with the letter ``A''; 
    and said tellers, having then read the same in the presence and 
    hearing of the two Houses, shall make a list of the votes as they 
    shall appear from the said certificates; and the votes having been 
    ascertained and counted in the manner and according to the rules by 
    law provided, the result of the same shall be delivered to the 
    President of the Senate, who shall thereupon announce the state of 
    the vote, which announcement shall be deemed a sufficient 
    declaration of the persons, if any, elected President and Vice 
    President of the United States, and, together with a list of the 
    votes, be entered on the Journals of the two Houses.

    The Senate concurrent resolution was agreed to.

Recesses

Sec. 2.2 The Speaker may be authorized to declare a recess in 
    connection with the convening of the two Houses in joint session to 
    count the electoral vote for President and Vice President.

    On Jan. 3, 1973,(20~) the House considered and agreed to 
a Senate concurrent resolution (1) providing for the 
convening on Jan. 6, 1973, of a joint session of the two Houses to 
count the electoral vote. Mr. Thomas P. O'Neill, Jr., of Massachusetts, 
then made a unanimous-consent request, as follows:
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20. 119 Cong. Rec. 30, 93d Cong. 1st Sess. For further illustrations 
        see 115 Cong. Rec. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 
        Cong. Rec. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 
        Cong. Rec. 26, 87th Cong. 1st Sess., Jan. 3, 1961.
 1. S. Con. Res. 1.
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        Mr. O'Neill: Mr. Speaker, I ask unanimous consent that on 
    Saturday, January 6, 1973, it may be in order for the Speaker to 
    declare a recess at any time subject to the call of the Chair.

[[Page 1565]]

        The Speaker: (2) Is there objection to the request 
    of the gentleman from Massachusetts?
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 2. Carl Albert (Okla.).
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        There was no objection.

    Parliamentarian's Note: The Speaker declares a recess of the House 
to enable the Members to reconvene in joint session with the Senate in 
the House Chamber.

Sec. 2.3 On the day fixed by law and concurrent resolution for the 
    convening of the joint session to count the electoral votes for 
    President and Vice President, the Speaker declined to recognize for 
    one-minute speeches or extensions of remarks before recessing the 
    House subject to the call of the Chair.

    On Jan. 6, 1973,(3) the Speaker (4) made an 
announcement to the House:
---------------------------------------------------------------------------
 3. 119 Cong. Rec. 378, 93d Cong. 1st Sess. For an additional example 
        see 115 Cong. Rec. 145, 91st Cong. 1st Sess., Jan. 6, 1969.
 4. Carl Albert (Okla.).
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        The Speaker: The Chair desires to make a statement.
        The Chair desires deferment of unanimous-consent requests and 
    also 1-minute speeches until after the formal ceremony of the day, 
    which is the counting of the electoral votes for President and Vice 
    President. Therefore, pursuant to the order adopted on Wednesday, 
    January 3, 1973,\(5)\ the Chair declares the House in recess until 
    approximately 12:45 o'clock p.m.
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 5. 119 Cong. Rec. 30, 93d Cong. 1st Sess.
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        Accordingly (at 12 o'clock and 3 minutes p.m.), the House stood 
    in recess subject to the call of the Chair.

Convening of the Joint Session

Sec. 2.4 The two Houses convene in joint session to open the 
    certificates and ascertain and count the votes cast by the electors 
    of the several states for President and Vice President.

    On Jan. 6, 1973,\(6)\ the President of the Senate \(7)\ called to 
order a joint session of the Senate and the House of Representatives, 
convened pursuant to the provisions of a Senate concurrent resolution 
\(8)\ to carry out Congress'

[[Page 1566]]

constitutional and statutory responsibilities relative to opening the 
certificates and ascertaining and counting the votes of the electors of 
the several states for President and Vice President.
---------------------------------------------------------------------------
 6. 119 Cong. Rec. 378, 93d Cong. 1st Sess. For other examples of joint 
        sessions convened to count the electoral vote cast in recent 
        elections see 115 Cong. Rec. 145, 91st Cong. 1st Sess., Jan. 6, 
        1969; 111 Cong. Rec. 136, 89th Cong. 1st Sess., Jan. 6, 1965; 
        and 107 Cong. Rec. 288, 87th Cong. 1st Sess., Jan. 6, 1961.
 7. Spiro T. Agnew (Md.).
 8. S. Con. Res. 1, agreed to by the House at 119 Cong. Rec. 30, 93d 
        Cong. 1st Sess., Jan. 3, 1973. For additional examples of House 
        agreement to concurrent resolutions providing for joint 
        sessions to count electoral votes, see 115 Cong. Rec. 36, 91st 
        Cong. 1st Sess., Jan. 3, 1969; 111 Cong. Rec. 26, 89th Cong. 
        1st Sess., Jan. 4, 1965; and 107 Cong. Rec. 26, 87th Cong. 1st 
        Sess., Jan. 3, 1961.
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Presiding Officer

Sec. 2.5 In the absence of the President of the Senate, the President 
    pro tempore of the Senate presides over the joint session to count 
    the electoral votes for President and Vice President.

    On Jan. 6, 1969,\(9)\ in the absence of the President of the 
Senate, \(10)\ the President pro tempore of the Senate \(11)\ presided 
over the joint session to count the electoral votes for President and 
Vice President of the United States.
---------------------------------------------------------------------------
 9. 115 Cong. Rec. 145, 91st Cong. 1st Sess. See also 111 Cong. Rec. 
        136, 89th Cong. 1st Sess., Jan. 6, 1965.
10. On Jan. 6, 1969, the President of the Senate, Hubert H. Humphrey, 
        (Minn.), who was the incumbent Vice President and the losing 
        candidate for President in the 1968 election, declined to 
        preside over the joint session to count the electoral votes. On 
        Jan. 6, 1965, the office of the President of the Senate was 
        vacant, the former Vice President, Lyndon B. Johnson (Tex.), 
        having ascended to the Presidency upon the death of his 
        predecessor, Nov. 22, 1963.
11. Richard B. Russell (Ga.).
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Procedure

Sec. 2.6 Where the two Houses meet to count the electoral vote, a joint 
    session is convened pursuant to a concurrent resolution of the two 
    Houses which incorporates by reference the applicable provisions of 
    the United States Code; and the procedures set forth in those 
    provisions are in effect constituted as a joint rule of the two 
    Houses for the occasion and govern the procedures in the joint 
    session and in both Houses in the event they divide to consider an 
    objection.

    On Jan. 6, 1969,\(12)\ the two Houses convened in joint session to 
count the electoral vote. The joint session was convened pursuant to a 
Senate concurrent resolution \(13)\ which incorporated the votecounting 
procedures set forth in 3 USC Sec. Sec. 15-18. A written objection was 
made to the count of
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12. 115 Cong. Rec. 145-47, 169-72, 91st Cong. 1st Sess.
13. 13. S. Con. Res. 1.
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[[Page 1567]]

North Carolina's electoral vote. Thereupon, pursuant to the provisions 
of 3 USC Sec. Sec. 15-18, the joint session divided, the Senate 
repairing to the Senate Chamber, and the objection was submitted to and 
considered in each House convened in separate sessions.



 
                               CHAPTER 10
 
               Presidential Elections; Electoral College
 
Sec. 3. Counting Votes; Objections to Count

House Tellers

Sec. 3.1 Tellers on the part of the House to count the electoral vote 
    are appointed by the Speaker.

    On Jan. 3, 1973,(14) the House had considered and agreed 
to a Senate concurrent resolution (15) providing for the 
convening of a joint session of the two Houses to count the electoral 
votes. The Speaker,(16) pursuant to the provisions of the 
concurrent resolution, appointed Mr. Wayne L. Hays, of Ohio, and Mr. 
Samuel L. Devine, of Ohio, as tellers on the part of the House to count 
the electoral votes.
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14. 119 Cong. Rec. 30, 93d Cong. 1st Sess. For further illustrations 
        see 115 Cong. Rec. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 
        Cong. Rec. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 
        Cong. Rec. 27, 87th Cong. 1st Sess., Jan. 3, 1961.
15. S. Con. Res. 1.
16. Carl Albert (Okla.).
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Sec. 3.2 The Speaker has appointed the Chairman and ranking minority 
    member of the Committee on House Administration as tellers on the 
    part of the House to count the electoral votes.

    On Jan. 3, 1969,(17) the Speaker (18) 
appointed as tellers on the part of the House to count the electoral 
votes Mr. Samuel N. Friedel, of Maryland, and Mr. Glenard P. Lipscomb, 
of California, who were, respectively, the Chairman and ranking 
minority member of the Committee on House Administration.
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17. 115 Cong. Rec. 36, 91st Cong. 1st Sess.
18. John W. McCormack (Mass.).
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Sec. 3.3 Where a Member designated as a teller for counting the 
    electoral ballots was unavoidably detained, the Speaker designated 
    another Member to take his place.

    On Jan. 6, 1949,(19) prior to the announcement of the 
arrival of the Senate for the meeting of the joint session of the two 
Houses to count the electoral vote, the Speaker (20) made an 
announcement to the House:
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19. 95 Cong. Rec. 89, 81st Cong. 1st Sess.
20. Sam Rayburn (Tex.).

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[[Page 1568]]

        The Speaker: The gentleman from New York [Mr. Ralph A. Gamble] 
        is unavoidably detained and is unable to serve as teller.
        The Chair designates the gentleman from Pennsylvania [Mr. Louis 
        E. Graham] to act as teller in his stead.

Senate Tellers

Sec. 3.4 Tellers on the part of the Senate to count the electoral votes 
    are appointed by the Vice President.

    On Jan. 3, 1973,(1) following the Senate's consideration 
of and agreement to a concurrent resolution (2) providing 
for the convening of a joint session of the two Houses to count the 
electoral votes, the Vice President,(3) in accordance with 
the provisions of the concurrent resolution, appointed the Senator from 
Kentucky, Marlow W. Cook, and the Senator from Nevada, Howard W. 
Cannon, as the tellers on the part of the Senate to count the electoral 
votes.
---------------------------------------------------------------------------
 1. 119 Cong. Rec. 8, 93d Cong. 1st Sess. For other recent examples see 
        115 Cong. Rec. 8, 91st Cong. 1st Sess., Jan. 3, 1969; 111 Cong. 
        Rec. 15, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 Cong. Rec. 
        72, 87th Cong. 1st Sess., Jan. 4, 1961.
 2. S. Con. Res. 1.
 3. Spiro T. Agnew (Md.).
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Conflicting Electoral Certificates

Sec. 3.5 The two Houses, meeting in joint session to count the 
    electoral votes, may by unanimous consent decide which of two 
    conflicting electoral certificates from a state is valid; and the 
    tellers are then directed to count the electoral votes in the 
    certificate deemed valid.

    On Jan. 6, 1961,(4) during proceedings in the joint 
session of the two Houses incident to the opening of the certificates 
and counting of the votes of the electors of the several states for 
President and Vice President, the President of the Senate 
(5) handed to the tellers, in the order in which they had 
been received, certificates of electoral votes, with all attached 
papers thereto, from different slates of electors from the State of 
Hawaii. The certificates were received and considered by the tellers, 
whereupon, the following proceedings occurred:
---------------------------------------------------------------------------
 4. 107 Cong. Rec. 288-91, 87th Cong. 1st Sess.
 5. Richard M. Nixon (Calif.).
---------------------------------------------------------------------------

        The Vice President: . . . The Chair has knowledge, and is 
    convinced that he is supported by the facts, that the certificate 
    from the Honorable William F. Quinn, Governor of the State of Ha

[[Page 1569]]

    waii, dated January 4, 1961, received by the Administrator of 
    General Services on January 6, 1961, and transmitted to the Senate 
    and the House of Representatives on January 6, 1961, being 
    Executive Communication Number 215 of the House of Representatives, 
    properly and legally portrays the facts with respect to the 
    electors chosen by the people of Hawaii at the election for 
    President and Vice President held on November 8, 1960. As read from 
    the certificates, William H. Heen, Delbert E. Metzger, and Jennie 
    Wilson were appointed as electors of President and Vice President 
    on November 8, 1960, and did on the first Monday after the second 
    Wednesday of December, 1960, cast their votes for John F. Kennedy 
    of Massachusetts for President and Lyndon B. Johnson of Texas for 
    Vice President.
        In order not to delay the further count of the electoral vote 
    here, the Chair, without the intent of establishing a precedent, 
    suggests that the electors named in the certificate of the Governor 
    of Hawaii dated January 4, 1961, be considered as the lawful 
    electors from the State of Hawaii.
        If there be no objection in this joint convention, the Chair 
    will instruct the tellers--and he now does--to count the votes of 
    those electors named in the certificate of the Governor of Hawaii 
    dated January 4, 1961--those votes having been cast for John F. 
    Kennedy, of Massachusetts, for President and Lyndon B. Johnson, of 
    Texas, for Vice President.
        Without objection the tellers will accordingly count the votes 
    of those electors named in the certificate of the Governor of 
    Hawaii dated January 4, 1961.
        There was no objection.
        The tellers then proceeded to read, count and announce the 
    electoral votes of the remaining States in alphabetical order.

    Parliamentarian's Note: A recount of ballots in Hawaii, which was 
concluded after the Governor of that state had certified the election 
of the Republican slate of electors, threw that state into the 
Democratic column; the Governor then sent a second communication to the 
Administrator of General Services which certified that the Democratic 
slate of electors had been lawfully appointed. Both slates of electors 
met on the day prescribed by law, cast their votes, and submitted them 
to the President of the Senate pursuant to 3 USC Sec. 11. When the two 
Houses met in joint session to count the electoral votes, the votes of 
the electors were presented to the tellers by the Vice President, and, 
by unanimous consent, the Vice President directed the tellers to accept 
and count the lawfully appointed slate.

Objections

Sec. 3.6 A formal objection was made to the counting of the electoral 
    vote of a state, and the House and Senate divided to separately 
    consider the objection before proceeding with the counting.

[[Page 1570]]

    On Jan. 6, 1969,(6) the President pro tempore of the 
Senate (7~) called to order a joint session of the House and 
Senate for the purpose of counting the electoral votes for President 
and Vice President. When the tellers appointed on the part of the two 
Houses (8) had taken their places at the Clerk's desk, the 
President pro tempore handed them the certificates of the electors and 
the tellers then read, counted, and announced the electoral votes of 
the states in alphabetical order. The vote of North Carolina was stated 
to be 12 for Richard M. Nixon and Spiro T. Agnew for President and Vice 
President respectively and one for George C. Wallace and Curtis E. 
LeMay for President and Vice President respectively. Mr. James G. 
O'Hara, of Michigan, thereupon rose and sent to the Clerk's desk a 
written objection signed by himself and Edmund S. Muskie, the Senator 
from Maine, protesting the counting of the vote of North Carolina as 
read. The President pro tempore directed the Clerk of the House to read 
the objection, which stated: (9)
---------------------------------------------------------------------------
 6. 115 Cong. Rec. 145, 146, 91st Cong. 1st Sess. For further 
        discussion and excerpts from the debate, see Sec. Sec. 3.7, 
        3.8, infra.
 7. Richard B. Russell (Ga.).
 8. Senator Carl T. Curtis (Neb.) and Senator B. Everett Jordan (N.C.) 
        on the part of the Senate; Mr. Samuel N. Friedel (Md.) and Mr. 
        Glenard P. Lipscomb (Calif.) on the part of the House.
 9. 115 Cong. Rec. 146, 91st Cong. 1st Sess., Jan. 6, 1969.
---------------------------------------------------------------------------

        We object to the votes from the State of North Carolina for 
    George C. Wallace for President and for Curtis E. LeMay for Vice 
    President on the ground that they were not regularly given in that 
    the plurality of votes of the people of North Carolina were cast 
    for Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and the State thereby appointed thirteen electors to vote 
    for Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and appointed no electors to vote for any other persons. 
    Therefore, no electoral vote of North Carolina should be counted 
    for George C. Wallace for President or for Curtis E. LeMay for Vice 
    President.
            James G. O'Hara, M.C.
            Edmund S. Muskie, U.S.S.

    Following the President pro tempore's finding that the objection 
complied with the law (10) and his subsequent inquiry as to 
whether there were any further objections to the certificates from the 
State of North Carolina, the two Houses separated to consider the 
objection, the Senate withdrawing to the Senate Chamber.
---------------------------------------------------------------------------
 10. 3 USC Sec. 15.
---------------------------------------------------------------------------

    The legal basis for the objection was contained in 3 USC Sec. 15, 
which provided in relevant part:

[[Page 1571]]

        . . . [A]nd no electoral vote or votes from any State which 
    shall have been regularly given by electors whose appointment has 
    been lawfully certified to according to section 6 of this title 
    from which but one return has been received shall be rejected, but 
    the two Houses concurrently may reject the vote or votes when they 
    agree that such vote or votes have not been so regularly given by 
    electors whose appointment has been so certified.

    Those supporting the objection in the House and Senate contended 
that the votes of one North Carolina elector had not been ``regularly 
given'' and should therefore be rejected.
    The background of the objection was explained by Senator Muskie 
during his opening remarks in the Senate debate on the objection: 
(11)
---------------------------------------------------------------------------
11. 115 Cong. Rec. 211, 91st Cong. 1st Sess., Jan. 6, 1969.
---------------------------------------------------------------------------

        In this case, a North Carolina elector was nominated as an 
    elector by a district convention of the Republican Party in North 
    Carolina. He did not reject that nomination. His name was not 
    placed on the ballot because under North Carolina law, as in the 
    case of 34 other States, only the names of the party's presidential 
    and vice-presidential candidates appear, and electors are elected 
    for the presidential and vice-presidential candidates receiving the 
    plurality of the vote in North Carolina.
        Dr. Bailey and 12 other North Carolina Republican electors were 
    so elected on November 5. The election was certified. Dr. Bailey 
    did not reject that election or that certification. So up to that 
    moment, so far as the people from North Carolina understood, he was 
    committed as an elector on the Republican slate, riding under the 
    names of Richard M. Nixon and Spiro T. Agnew, to vote for that 
    presidential and vice-presidential ticket.
        On December 16, the electors of North Carolina met in Raleigh 
    to cast their votes. . . . It was at that point that Dr. Bailey 
    decided to cast his vote for the Wallace-LeMay ticket instead.

    In the House, Mr. Roman C. Pucinski, of Illinois, made a similar 
presentation.(12)
---------------------------------------------------------------------------
12. Id. at pp. 159, 160.
---------------------------------------------------------------------------

    During debate on the objection in both the House and the Senate, 
proponents of the objection focused on several key arguments in support 
thereof. It was argued that the elector had at least a moral commitment 
to vote for the Republican candidates--a commitment made more 
compelling in the light of custom and practice since the adoption of 
the Constitution,(13) and reliance by the voters on the 
elector's conduct and apparent intentions.(14) Senator 
Muskie stated: (15)
---------------------------------------------------------------------------
13. See remarks of Mr. Edward P. Boland (Mass.), id. at pp. 165, 166, 
        and remarks of Mr. O'Hara, id. at p. 169.
14. See, for example, the remarks of Senator Frank Church (Idaho), 
        id.at p. 214.
15. Id. at p. 212.

---------------------------------------------------------------------------

[[Page 1572]]

        [A]s I understand it, the Constitution, as interpreted by the 
    debates in the Constitutional Convention, clearly makes an elector 
    a free agent. However, from the beginning of the country's history, 
    political parties developed, and the political parties arranged for 
    slates of electors assigned to their presidential and vice-
    presidential candidates. That political party slate of candidates 
    has always been regarded, with but five other exceptions, as 
    binding upon those who are electors on that slate.
        So I argue that in the light of that tradition, when an elector 
    chooses to go on a party slate, he is indicating his choice for 
    President.
        I say, secondly, that in the case of North Carolina and this 
    statute, which is found also in 34 other States, the fact that only 
    the presidential and vice-presidential names appear on the ballot 
    is confirmation of this tradition; that when an elector accepts a 
    place on a slate under these circumstances, in the light of this 
    tradition, he knows that to the public at large he is saying, by 
    his action, ``I am for Nixon for President.'' He is saying 
    implicitly, in my judgment, ``If I am elected an elector under 
    these circumstances, I will vote for Richard Nixon for President.''
        I believe that is the tradition. I believe that this undergirds 
    the responsibility of an elector; and once he has set that train of 
    understanding in motion, he cannot, after election day, when it is 
    too late for the voters to respond to any change of mind on his 
    part, say, ``I changed my mind, and I am going to vote for somebody 
    else.'' It is in the nature of estoppel.

    Those opposed to the objection argued that the electors were ``free 
agents'' (16) under the Constitution,(17) 
permitted to vote for whomever they pleased. According to such view, 
Congress, under the Constitution and 3 USC Sec. 15, exercised only a 
ministerial function in counting the electoral ballots, and such 
ballots could be discounted only if the certificates were not in 
regular form or were not authentic.(18)
---------------------------------------------------------------------------
16. See the remarks of Mr. William M. McCulloch (Ohio), id. at p. 148; 
        Mr. Richard H. Poff (Va.), id. at p. 158; Senator Ralph W. 
        Yarborough (Tex.), id. at p. 217; Senator Robert C. Byrd (W. 
        Va.), id. at p. 245.
17. Relevant provisions are art. II, Sec. 1, clause 3; and the 12th 
        amendment.
18. See remarks of Mr. John B. Anderson (Ill.), 115 Cong. Rec. 151, 
        91st Cong. 1st Sess., Jan. 6, 1969; Mr. Bob Eckhardt (Tex.), 
        id. at p. 164; Senator Curtis, id. at pp. 219, 220; Senator 
        Herman E. Talmadge (Ga.), id. at p. 223.
---------------------------------------------------------------------------

    It was also noted that North Carolina had not adopted a law, as had 
a majority of states, requiring the electors to pledge to support their 
party's nominee; \(1)\ this raised, in the view of some, an implication 
that North Carolina did not intend its electors to

[[Page 1573]]

be bound to support particular party nominees. Senator Edward M. 
Brooke, of Massachusetts, made the following remarks: \(2)\
---------------------------------------------------------------------------
 1. See remarks of Mr. Alton A. Lennon (N.C.), id. at pp. 149, 150. The 
        Supreme Court in Ray v Blair, 343 U.S. 214 (1952), upheld the 
        constitutionality of state laws requiring an elector to pledge 
        to support the nominee of his political party.
 2. Id. at p. 213.
---------------------------------------------------------------------------

        In a system of constitutional government matters of procedure 
    often become vital issues of substance. I submit that such a case 
    is now before us. There are strong constitutional grounds for the 
    authority of a State to bind its electors to vote as they are 
    pledged. If a State has so bound its electors, I would contend that 
    the Congress can properly act to see that the State's legal 
    requirements are fulfilled. This would be a reasonable construction 
    of the 1887 statute which provides that Congress can reject an 
    elector's vote which has not been regularly given.
        But it is my considered opinion that, unless the State chooses 
    to bind its electors, Congress cannot do so after the fact.
        Among the many serious implications of this situation, one 
    lesson in particular stands out:
        No official should ever be granted discretionary authority 
    unless the people clearly understand that, under some 
    circumstances, he may actually use it. And if such authority, once 
    granted, is deemed excessive or unwise, the people should 
    explicitly and promptly rescind it.
        As I understand the relevant constitutional guidelines, the 
    power to remedy this particular problem lies with the people of 
    North Carolina acting through their representative institutions at 
    the State level. . . .
        In addition, however, there is a national interest in removing 
    so critical a loophole in our constitutional system. If the 
    electoral college is to remain an element in our political life, 
    surely we should move to design a constitutional amendment which, 
    once and for all, binds electors to vote for the candidates to whom 
    they are pledged. I hasten to add that this possible change in our 
    electoral system will certainly not suffice. Indeed, one of the 
    paramount tasks of this Congress will be to examine the full range 
    of constitutional proposals to create a fair and secure procedure 
    for presidential elections.

    In addition to the views stated above by Senator Brooke, several of 
those speaking to the objection expressed support for a constitutional 
amendment to reform the electoral system, a remedy which, it was 
argued, would be preferable to ``piecemeal'' changes to be achieved 
under present law.\(3)\

[[Page 1574]]

    At the conclusion of debate in each House, the yeas and nays were 
ordered and the House and Senate respectively rejected the 
objection.\(4)\ Thereupon, the Senate reassembled in the Chamber of the 
House in joint session.\(5)\ The President pro tempore called the 
meeting to order and directed the Secretary of the Senate and the Clerk 
of the House to report the action taken by the two Houses. Following 
the report, the President pro tempore directed the tellers to record 
and announce the vote of the State of North Carolina, and the counting 
of the electoral votes proceeded.
---------------------------------------------------------------------------
 3. See, for example, the remarks of Mr. Hamilton Fish, Jr. (N.Y.), id. 
        at p. 168.
            Among those Members and Senators who favored a 
        constitutional amendment to revise the electoral system were 
        Mr. Hale Boggs (La.), id. at p. 151; Mr. Emanuel Celler (N.Y.), 
        id. at p. 149; Mr. Phillip Burton (Calif.), id. at p. 160; Mr. 
        Charles A. Vanik (Ohio), id. at p. 168; Senator Karl E. Mundt 
        (S.D.), id. at p. 216; Senator Birch Bayh (Ind.), id. at p. 
        218; Senator Harry F. Byrd, Jr. (Va.), id. at p. 221; and 
        Senator Robert C. Byrd (W. Va.), id. at pp. 244, 245. It was 
        pointed out by Senator Muskie, however, that over 500 
        resolutions had been introduced to reform the electoral system 
        by constitutional amendment during the history of the Republic. 
        Id. at p. 220.
 4. See Sec. 3.7, infra.
 5. 115 Cong. Rec. 171, 91st Cong. 1st Sess., Jan. 6, 1969.
---------------------------------------------------------------------------

Sec. 3.7 Under the statute prescribing the procedure for consideration 
    by the respective Houses of an objection to a state's electoral 
    vote count, a motion to lay the objection on the table is not in 
    order.

    On Jan. 6, 1969,\(6)\ following the raising of an objection to the 
count of North Carolina's electoral vote, the joint session of the two 
Houses divided (the Senate repairing to the Senate Chamber), so that 
the objection could be considered by each House meeting in separate 
session. The House was called to order by the Speaker\(7)\ and debate 
on the objection ensued, at the conclusion of which a motion was made 
by Mr. Gerald R. Ford, of Michigan, to lay the objection on the table.
---------------------------------------------------------------------------
 6. 115 Cong. Rec. 145-47, 169-72, 91st Cong. 1st Sess.
 7. John W. McCormack (Mass.).
---------------------------------------------------------------------------

    A point of order against the motion was made by Mr. James G. 
O'Hara, of Michigan, asserting that the motion to table such an 
objection was inconsistent with the requirement of 3 USC Sec. 17, that 
after two hours of debate in each House on the objection to the count 
of a state's electoral vote, ``it shall be the duty of the presiding 
officer of each House to put the main question without further 
debate.''

    After further debate, the Speaker sustained the point of order. He 
stated:

        It seems to the Chair that the law [3 USC Sec. 17] is very 
    plain with respect to the 5-minute rule and time of debate. With 
    respect to the problem, the section states, and I quote:

            It shall be the duty of the presiding officer of each House 
        to put the main question without further debate.

[[Page 1575]]

        In the opinion of the Chair the main question is the objection 
    filed by the gentleman from Michigan (Mr. O'Hara) and the Senator 
    from Maine, Senator Muskie.
        The Chair is of the opinion that the law plainly governs the 
    situation; that the Chair must put the main question and that the 
    motion to table is not in order.
        Accordingly, the Chair sustains the point of order.

    The question on agreeing to the objection was taken; the objection 
being rejected--yeas 170, nays 228, not voting 32, not sworn 4. A 
motion to reconsider was laid on the table.
    A similar situation arose in the Senate, during proceedings 
relating to the objection to the North Carolina vote. The Senate had 
been called to order by President pro tempore Richard B. Russell, of 
Georgia, who then directed the Clerk to read the objection, as follows: 
(8)
---------------------------------------------------------------------------
 8. 115 Cong. Rec. 210, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

        We object to the votes from the State of North Carolina for 
    George C. Wallace for President and for Curtis E. LeMay for Vice 
    President on the ground that they were not regularly given in that 
    the plurality of votes of the people of North Carolina were cast 
    for Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and the State thereby appointed 13 electors to vote for 
    Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and appointed no electors to vote for any other persons. 
    Therefore, no electoral vote of North Carolina should be counted 
    for George C. Wallace for President or for Curtis E. LeMay for 
    Vice-President.

    Following a statement by the President pro tempore that this was an 
unusual parliamentary situation in that it was the first time an 
objection to an electoral vote had been filed,(9) and a 
reading by the Clerk of the provisions of 3 USC Sec. 17, the Senate 
agreed to a unanimous-consent request by Edmund S. 
Muskie,(10) the Senator from Maine, that the time be divided 
equally between proponents and opponents of the objection, with time 
for the proponents to be allotted under the direction of the Majority 
Leader, Michael J. Mansfield, of Montana, and time for the opponents to 
be allotted under the direction of Senator Dirksen. Debate on the 
objection then proceeded.
---------------------------------------------------------------------------
 9. According to Minority Leader Everett McK. Dirksen (Ill.), this was 
        also the first time the Senate had operated under the five-
        minute rule. Id. at p. 223.
10. Id. at p. 211.
---------------------------------------------------------------------------

    During the debate on the objection, Edward M. Kennedy, the Senator 
from Massachusetts, inquired as to whether a motion to lay the 
objection on the table would be in order: (11)
---------------------------------------------------------------------------
11. Id. at p. 223.

---------------------------------------------------------------------------

[[Page 1576]]

        Mr. Kennedy: Mr. President, may I propound a parliamentary 
    inquiry whether the motion to table is in order or is not in order?
        The President Pro Tempore: The Chair would rule that it is not 
    in order. The statute under which we are now proceeding states the 
    main question shall be put. Let the Chair read the last clause of 
    section 17 of title 3:

            But after such debate shall have lasted two hours it shall 
        be the duty of the presiding officer of each House to put the 
        main question without further debate.

    At the conclusion of the two hours of debate, the question on 
agreeing to the objection was taken; and the objection was rejected 
(yeas 33 and nays 58). A motion to reconsider was laid on the 
table.(12) Subsequently, at the resumption of the joint 
session, the Presiding Officer directed the tellers to announce and 
record the electoral votes of North Carolina as submitted.
---------------------------------------------------------------------------
12. Id. at p. 246.
---------------------------------------------------------------------------

Sec. 3.8 During consideration of an objection to the electoral vote 
    count of a state, unanimous consent was sought for purposes of 
    modifying the procedures prescribed by statute for consideration of 
    such objections; after discussion and rejection of such request, a 
    subsequent unanimous-consent request was agreed to which qualified 
    the terms of the statute.

    During proceedings arising from an objection to the count of 
electoral votes of North Carolina,(13) the following 
statutory provision (14) was read in the Senate: 
(15)
---------------------------------------------------------------------------
13. See Sec. 3.6, supra.
14. 3 USC Sec. 17.
15. 115 Cong. Rec. 210, 91st Cong. 1st Sess., Jan. 6, 1969.
---------------------------------------------------------------------------

        When the two Houses separate to decide upon an objection that 
    may have been made to the counting of any electoral vote or votes 
    from any State, or other question arising in the matter, each 
    Senator and Representative may speak to such objection or question 
    five minutes, and not more than once; but after such debate shall 
    have lasted two hours it shall be the duty of the presiding officer 
    of each House to put the main question without further debate.

    Senator Edmund S. Muskie, of Maine, then made the following 
unanimous-consent request:

        . . . I ask unanimous consent that debate on objections to the 
    electoral vote of North Carolina for George C. Wallace and Curtis 
    LeMay shall be limited to 2 hours, as provided by law in section 
    17, title 3, United States Code, and that the time be equally 
    divided and controlled by the majority leader and the minority 
    leader.

    Discussion ensued as to the effect of the request and the 
appropriateness of adopting procedures that, in the view of some Sen

[[Page 1577]]

ators, would constitute a departure from the terms of the statute.
    As background to the discussion, it may, of course, be noted that, 
under the Constitution,(16) ``Each House may determine the 
Rules of its Proceedings,'' so that there was no absolute legal 
obstacle to the Senate's adoption of whatever procedures seemed 
appropriate at the time. It may also be noted that the terms of the 
unanimous-consent request did not on their face necessarily contravene 
the statute. But it will be observed that the Chair declined to pass 
upon the effect or legality of the unanimous-consent request, and 
stated that a single objection to the request would preserve procedures 
under the statute.
---------------------------------------------------------------------------
16. U.S. Const. art. I, Sec. 5.
---------------------------------------------------------------------------

    The Chair did remark that unanimous-consent requests are 
entertained that are seemingly ``in conflict with'' both statutes and 
the Constitution. Citing the constitutional requirement of the quorum, 
he said:

        . . . We see suggestions of the absence of a quorum made 
    several times during the day and withdrawn by unanimous consent. . 
    . .

    It may perhaps be implied from the Chair's remarks here and 
throughout the debate that a proposed departure from statutory 
provisions such as those in question is in any event permissible if no 
point of order or objection is raised.
    The proceedings relating to Senator Muskie's unanimous-consent 
request were in part as follows: (17)
---------------------------------------------------------------------------
17. 115 Cong. Rec. 210, 211, 91st Cong. 1st Sess., Jan. 6, 1969.
---------------------------------------------------------------------------

        Mr. [Carl T.] Curtis [of Nebraska]: Is a unanimous-consent 
    request in order which, by its terms, is not in accord with a duly 
    enacted statute?
        The President Pro Tempore: (18) The Chair will state 
    that unanimous-consent requests can also be received and 
    entertained here that are in conflict with the statutes. Sometimes 
    they are in conflict with the Constitution.
---------------------------------------------------------------------------
18. Richard B. Russell (Ga.).
---------------------------------------------------------------------------

        We have three sets of rules in the Senate. Some of them are 
    spelled out in the Constitution, others are spelled out in the 
    Senate rule book, and the great majority of them are embraced in 
    the precedents of the Senate.
        For example, one of the constitutional rules had to do with 
    ascertaining the presence of a quorum. We see suggestions of the 
    absence of a quorum made several times during a day, and withdrawn 
    by unanimous consent. That can be done only by unanimous consent. 
    If the proposal of the Senator from Maine can be made only by 
    unanimous consent, any single Senator who thinks it is improper, 
    and that we should follow the statute in this particular case--has 
    a right to destroy it completely by uttering two words--``I 
    object,'' and the proposal will fall.

[[Page 1578]]

        Mr. [Edward W.] Brooke [of Massachusetts]: Mr. President, 
    reserving the right to object, do I understand the only difference 
    between the unanimous-consent request and the statute to be that 
    the time would be controlled by the Chair and not by the majority 
    and minority leaders, under the statute?
        Mr. Muskie: As the unanimous-consent request is worded, time 
    would be under the control of the majority and minority leaders.
        Mr. Brooke: That is the only thing that was intended to be 
    achieved by the unanimous-consent agreement?
        Mr. Muskie: Plus liberalizing the 5-minute requirement. The 
    statute requires that each Senator may speak for 5 minutes, and not 
    more than once. This was discussed quite extensively, and it was 
    felt that the ideal arrangement would be to have full and free 
    debate, with the time controlled and free exchange between 
    Senators. It was felt that this could be done, unless a Senator 
    objected; so we decided to make the effort. . . .
        Mr. [Frank] Church [of Idaho]: Mr. President, I have no desire 
    to object, but I do not understand how this can be a proper 
    proceeding.
        The President Pro Tempore: The Chair is not permitted to enter 
    any ruling that purports to pass upon the legality of a unanimous-
    consent request, any more than is any other Member of this body.
        Is there objection?
        Mr. Brooke: Mr. President, it seems to me that the intent of 
    the statute is to give as many Senators as possible an opportunity 
    to be heard on this important issue. As I understand the 
    distinguished Senator from Maine, under the unanimous-consent 
    request, conceivably the distinguished Senator might use 1 hour of 
    the time, and one Senator from the minority side use 1 hour of the 
    time, which in my opinion would certainly frustrate the intent of 
    the statute. I feel so strongly about it, Mr. President, that as 
    much as I dislike to do so, I hereby object.

        The President Pro Tempore: The Senator from Massachusetts 
    objects. The Chair, having tolerated considerable discussion and 
    parliamentary inquiries, now asks of the Senate unanimous consent 
    that that time not be charged against the 2 hours. If there is no 
    objection, it will not be charged; and that leaves the matter open 
    for the Chair to recognize Senators who wish to speak on this 
    subject.
        The Chair recognizes the Senator from Maine for 5 minutes.
        Mr. Muskie: Mr. President, I anticipated that this might 
    result, and I fully understand the reservations expressed by 
    Senators. I have another unanimous-consent request to propose. I 
    ask unanimous consent that debate be limited to 2 hours, as 
    provided by statute, that the time be equally divided and 
    controlled by the majority leader and the minority leader, and that 
    the statutory limitation of 5 minutes per Senator be included, but 
    that the 5 minutes available to any Senator may be used to ask or 
    answer questions.
        The purpose of this request, Mr. President, is to do two 
    things: First, to insure that both sides of the debate shall have 
    equal access to the attention of the Senate; second, that the use 
    of the 5 minutes shall not be so rigid that

[[Page 1579]]

    there cannot be the kind of exchange that would permit the 
    answering of questions on the minds of Senators. The 
    Parliamentarian has advised me that, in his judgment, this is 
    consistent with the statute. It touches upon points not covered by 
    the statute, and it embraces the limitations of the statute. . . .
        The President Pro Tempore: Is there objection to the unanimous-
    consent request? The Chair hears none, and the request is agreed 
    to.



                               CHAPTER 10
 
               Presidential Elections; Electoral College
 
Sec. 4. Presidential Nominations for Vice President

Transmittal Message

Sec. 4.1 When the President, pursuant to section 2 of the 25th 
    amendment to the Constitution, nominates a Vice President to take 
    office upon confirmation by a majority vote of both Houses, a 
    message transmitting his nomination is laid before the House by the 
    Speaker.

    On Oct. 13, 1973,(19)~ the Speaker (20) laid 
before the House the following message from the President of the United 
States:
---------------------------------------------------------------------------
19. 119 Cong. Rec. 34032, 93d Cong. 1st Sess. For proceedings incident 
        to the Senate's receipt of a similar message see 119 Cong. Rec. 
        34111, 93d Cong. 1st Sess., Oct. 13, 1973.
            See 120 Cong. Rec. 29366, 93d Cong. 2d Sess., Aug. 20, 
        1974, for similar proceedings relating to the nomination of 
        Nelson A. Rockefeller as Vice President.
20. Carl Albert (Okla.).

    To the Congress of the United States:

        Pursuant to the provisions of Section 2 of the Twenty-fifth 
    Amendment to the Constitution of the United States, I hereby 
    nominate Gerald R. Ford, of Michigan, to be the Vice President of 
    the United States.

                                                Richard Nixon,
                                                The White House,
                                                 October 13, 1973.

Referral to Committee

Sec. 4.2 The Speaker referred the President's nomination of a Vice 
    President to the Committee on the Judiciary, which has jurisdiction 
    over matters relating to Presidential succession.

    On Oct. 13, 1973,(1) the Speaker (2) referred 
to the Committee on the Judiciary a message from the

[[Page 1580]]

President of the United States nominating a Vice President.
---------------------------------------------------------------------------
 1. 119 Cong. Rec. 34032, 93d Cong. 1st Sess. See 119 Cong. Rec. 34111, 
        93d Cong. 1st Sess., Oct. 13, 1973, where, in the Senate, the 
        nomination was referred to the Senate Committee on Rules and 
        Administration.
            Similarly, on Aug. 20, 1974, the nomination by President 
        Gerald R. Ford of Nelson A. Rockefeller as Vice President was 
        referred in the House to the Committee on the Judiciary. See 
        120 Cong. Rec. 29366, 93d Cong. 2d Sess.
 2. Carl Albert (Okla.).
---------------------------------------------------------------------------

Confirmation

Sec. 4.3 The House agreed to a resolution confirming a Presidential 
    nomination for Vice President of the United States and then 
    received a message from the Senate announcing that body's 
    confirmation of the nomination.

    On Dec. 6, 1973,(3) pursuant to a special 
order,(4) the House considered and agreed to a resolution 
(H. Res. 735) reported from the Committee of the Whole House on the 
state of the Union confirming a Presidential nomination for Vice 
President of the United States:
---------------------------------------------------------------------------
 3. 119 Cong. Rec. 39899, 39900, 93d Cong. 1st Sess.
 4. See 119 Cong. Rec. 39807, 39812, 39813, 93d Cong. 1st Sess., Dec. 
        6, 1973, for proceedings incident to the House's agreement to a 
        resolution, H. Res. 738, making in order consideration of the 
        confirmation resolution.
---------------------------------------------------------------------------

        Resolved, That the House of Representatives confirm the 
    nomination of Gerald R. Ford, of the State of Michigan, to be Vice 
    President of the United States.

    A motion to reconsider was laid on the table.
    Thereupon, the House received a message from the Senate announcing 
that body's confirmation (5) of the nomination.
---------------------------------------------------------------------------
 5. For proceedings incident to the Senate's confirmation of the 
        nomination see 119 Cong. Rec. 38224, 38225, 93d Cong. 1st 
        Sess., Nov. 27, 1973.
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    Similarly, on Dec. 19, 1974,(6)  pursuant to a special 
order, House Resolution 1519,(7) the House considered and 
agreed to a resolution (H. Res. 1511) reported from the Committee of 
the Whole House on the state of the Union confirming a Presidential 
nomination for Vice President of the United States:
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 6. 120 Cong. Rec. 41516, 41517, 93d Cong. 2d Sess.
 7. See id. at pp. 41419-516, for text of H. Res. 1519 and debate on H. 
        Res. 1511.
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        Resolved, That the House of Representatives confirm the 
    nomination of Nelson A. Rockefeller, of the State of New York, to 
    be Vice President of the United States.

    A motion to reconsider was laid on the table.
    Thereupon, the House received a message from the Senate announcing 
that body's confirmation (8) of the nomination.
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 8. For proceedings incident to the Senate's confirmation of the 
        nomination, see 120 Cong. Rec. 38918-36, 93d Cong. 2d Sess., 
        Dec. 10, 1974.
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