Senator HRUSKA. I add my words of pleasure with the honor tha comes to us for having such distinguished visitors. We are grateful for your presence.

It has been suggested, Mr. Justice, that you always have the human factor of an officeholder not wanting to vote himself out of office. Therefore, perhaps one house of the legislature would be reluctan to reapportion itself. Is that of any consequence whether this amend ment is adopted or not? If they do not reapportion, the Federal Court will do it for them; is that not true?

Justice CALDWELL. Yes, that is true.

Senator HRUSKA. If they are laggard, they can be laggard and th Federal Court will then step in and there will be that compulsion from this external source. None of these resolutions will, in and of themselves, repeal Reynolds v. Sims. That stays as the law of the land does it not?

Justice CALDWELL. Yes, sir.

Senator HRUSKA. It is not until the people of the State speak and say, "We want to change Reynolds v. Sims by basing one house on factors other than population," that the change will occur.

You have testified, Mr. Justice, that you do not recall any issue of any great importance having been decided on the basis of sectionalism in the State of Florida. How is the senate of the State constituted Justice CALDWELL. There are 45 members, with no county of the State having more than 1 senator. There are senatorial districts involving as many as, oh, three or four, perhaps even five, I am not sure, counties. I suspect that as constituted now, the rural areas substantially dominate the membership of the Senate.

Senator HRUSKA. How much of a factor is that in the record of good decisions on major issues?

Justice CALDWELL. Amazingly, there has been a complete absence of sectionalism or of one interest against the other when it comes to the settling of important legislation having to do with educatio or elections or law enforcement or what not. I do not know whether that condition is peculiar to the State of Florida or not. But as I said a moment ago, I have never seen the first instance in which legislation of major importance has ever been affected by the sectional factor.

Senator HRUSKA. My question is this: Can the lack of sectionalism be attributed in part to the power that might be exerted by the ruraldominated senate?

Justice CALDWELL. Not up to this point, no; but I can see where it might be a factor in the future.

Senator HRUSKA. Suppose that domination is erased so that the domination will rest in the metropolitan areas. Might that in due time in some issues result in sectionalism?

Justice CALDWELL. Yes, I think it would for this reason:

The urban areas are almost completely uninformed about the problems of the rural areas. The converse is not true. The people from the rural areas do move into the urban areas and inform themselves of their problems, but the people from the urban areas are seldo found out in the rural areas. And I am inclined to think that with urban domination, you would not have the same complete absence of sectionalism.

Senator HRUSKA. Of course, if there were domination in both houses by the metropolitan areas the balance which now exists would be lost, would it not?

Justice CALDWELL. I think that is true. I think the balance would be definitely lost.

Senator HRUSKA. Mr. Justice, we have heard again and again in this hearing room that there are certain fundamental rights that cannot be changed. We get into the right to vote, freedom of religion and freedom of the press, and so on. Do you know of any provision in the Federal Constitution that the people in the States, cannot amend with the exception of the provision which says that no State can be deprived of two Senators without its consent? Do you know of any provision in that Constitution that cannot be changed?

Justice CALDWELL. No, sir; I do not.

Senator HRUSKA. I am not getting into the matter of advisability or good judgment. Is there anything in the Constitution which cannot be amended by the procedures described in article 5, with that one exception I mentioned?

Justice CALDWELL. I think you put your finger there on an extremely important question, which needs to be always kept in mind. That is if that Constitution is to be changed, it should be changed in the manner set forth in the Constitution itself. To do otherwise is simply to resign the political policies of the Nation into the hands of people who are not elected by and not responsive to the people themselves. I think when you do that, you are approaching a very hazardous condition.

Senator HRUSKA. Mr. Justice, you have referred to the great body of opinion within this Nation which has rebelled at the application of Reynolds v. Sims and related decisions. That is cited as one of the reasons why the Congress should take action, to submit one of these resolutions to the legislatures of the State. Included in the expression of opinion by many people in America are the actions of State legislatures which have petitioned for a constitutional convention. If you had a choice between a constitutional convention for the purpose at hand and the submission of a constitutional amendment to the legislatures, would you have any preference?

Justice CALDWELL. I think I would follow the constitutional convention route.

But I should like to say that in whatever route you take, on this matter of basic policy, basic constitutional change, the ultimate responsibility should be left up to the people to settle for themselves. They ought not to be left with the feeling of having been deprived of a fundamental right without a voice. I think it is extremely important from the standpoint of the general morale of the people of the country. Senator HRUSKA. The doctrine of popular sovereignty still should live in your judgment?

Justice CALDWELL. Yes, sir.

Senator HRUSKA. There are those who have testified here that they should shudder at the thought of a constitutional convention. "Anything can happen," they say. If it be a wide open convention, goodness only knows what wickedness it might perpetrate.

Justice CALDWELL. Now, wait, if your reference was to a constitutional convention within the States

Senator HRUSKA. No, my reference was to a Federal constitutional convention.

Justice CALDWELL. No, no; I think that is impractical. I do not think it would be possible, as a practical matter.

Senator HRUSKA. When you said you prefer a constitutional convention, you did not have in mind at that time a Federal constitu tional convention?

Justice CALDWELL. No, no; under the machinery provided by the Constitution, I think it is utterly impractical. I do not believe you can go that route.

Senator HRUSKA. My question had to do with the resolutions of the States, I think some 22 in number, who are calling for a constitu tional convention to amend the Constitution. As between that method and the method of submitting a proposed amendment to th Constitution for the legislatures to adopt, which would you prefer Justice CALDWELL. It must go to the legislatures.

Now, in the original contemplation of this question of constitutional amendments, I am afraid the Founding Fathers did not g very far and look into the practical aspects of the calling of the Constitutional Convention. The reason the States petitioned for the calling of a Federal constitutional convention is because they ha no choice. They do not want that. They are simply taking that route as the only route open to them under the Constitution as it is written now, in the hopes that the Congress will see that it woul be impractical and that the Congress would, of its own motion, then submit the amendment to the legislatures of the States.

I do not think for a moment that you could set up a constitutional convention that would do the job at the Federal level.

Senator HRUSKA. It has never been tried, has it?

Justice CALDWELL. No; it has not been tried and I would certainly be fearful of the consequences if it were tried.

Senator HRUSKA. Is there an initiative and referendum law i Florida?

Justice CALDWELL. No, sir; we do not have one.

Senator HRUSKA. Of course, if this resolution becomes a Federa constitutional amendment, there would be the necessity for a vote of the people on any plan that would base one house on factors other tha population. It would be necessary for the plan to provide machinery so that the people could vote on that measure?

Justice CALDWELL. Yes.

Senator HRUSKA. The lack of a referendum law in a State is no serious in this regard. It is a deficiency that can readily be corrected Justice CALDWELL. That would be no obstacle at all in Florida. Senator HRUSKA. Thank you, very much.

Senator BAYH. Justice and Senator, we are very grateful that you have taken the time to help compile the record before the subcom mittee.

Senator HOLLAND. Thank you, very much.

Our next witness is Mr. Hale Champion, who is before us to preser the views of Governor Brown and I trust will feel free to let us have any thoughts that he might have on the subject as the director of finance of the State of California.

STATEMENT OF HALE CHAMPION, CALIFORNIA STATE DIRECTOR OF FINANCE, FOR EDMUND G. BROWN, GOVERNOR OF CALIFORNIA

Mr. CHAMPION. I will be glad to do that, Senator.

Mr. Chairman and members of the subcommittee, I appreciate the courtesy of your subcommittee to Gov. Edmund G. Brown of California in permitting me to appear here today on relatively short notice as his official representative. What I am about to read is his own statement on the subject of a constitutional amendment to provide for and control apportionment of State legislatures. This is the Governor's

Statement:

As Governor of California, which, as the most populous State, has almost 10 percent of the Nation's total population, I have special reason to appeal to you today.

California, just as each of the other 49 States, is unique and has unique problems. But because California is the largest of these unique units, its unique problems are larger. And since size inevitably results in complexity, those larger problems are extraordinarily complex. We are additionally confronted by a rate and constancy of immigration unmatched in human history, a growth that feeds and nourishes these complex problems.

When we come, as we have today, to one of the most difficult of these problems, egislative apportionment, we have still another factor with which to contend. The great range and variety of California's geography and the uneven, and often expensive mismatching of population and resources. Almost everything we need we have, but what is needed in the south is often available only in the north; what is required to build great coastal cities must come from the sparsely settled mountains, and even the deserts must slowly be converted into fertile valleys to provide enough food and fiber for all the other areas of California.

I do not intend to discuss all this in detail here today. I know that non-Californians are perhaps understandably less concerned about our great splendors and our lesser miseries than we ourselves. I have repeated these generalizations only because I think they are a necessary background for those who would like to understand how most Californians feel about the matter now before you.

What I have to say about apportionment is remarkably close to what Senator Kuchel has already told you, and I think that fact is significant. I am a Demorat, he is a Republican. In this instance, I believe we represent a great and stillgrowing consensus in California on what should be done as a result of the U.S. Supreme Court rulings on apportionment of State legislatures.

My recommendations are not all embodied in the proposed constitutional amendment you are now considering, but they could easily be fitted into that measure or any of a number of others. As Senator Kuchel did, I offer ways in which to make that measure acceptable indeed highly desirable to Californians. My recommendations are three in number, and I would stress that each bears with sufficient weight on the two others that, in my judgment they are not separable.

First, I would endorse the principle that each State be given a qualified right nder a constitutional amendment to apportion one of two houses of its legislature without fully meeting the one-man-one-vote test now established by recent rulings of the U.S. Supreme Court.

Second, I would insist that one of the restrictive qualifications be that the people of each of the 50 States be given the opportunity long denied in many of the States to pass directly on questions of apportionment by initiative and referendum-an opportunity which Californians have both had and exercised on a rumber of occasions. That right should be reserved to the people of each State by the Federal Constitution as a condition precedent to apportionment of one of the two houses of any State without full adherence to the one-man-one-vote rule. Third, I would also restrict the use of this new constitutional privilege to States which could meet stringent requirements embodied in the same constitutional amendment requirements which would guarantee that the electorate of the State concerned was not limited by reason of sex, race, creed, color, economic status, or other comparably irrelevant factors.

I cannot tell you that I have exact language or procedures devised to carry out this three-point recommendation. I can tell you, however, that Califor nia could qualify immediately so far as the spirit and intent are concerned. I am sure many other States could also qualify and there is no reason why those States who would not immediately be eligible for this privilege could not be come so in a reasonable time.

California urgently needs this kind of amendment, and I believe many other States would welcome it. I see no valid reason for stubborn opposition to returning this question of legislative apportionment at a State level to the people of the several States, so long as we can guarantee that all those who qualify as voters under Federal standards can freely participate in making the decision. I would join in objections to measures which did not offer such a guarantee to the full electorate, but I see no valid reason why such guarantees should not be offered.

I do not believe that all States should or would choose to apportion one house on other than a strict one-man-one-vote rule. In many States, I think I might. as an individual, choose to vote against differences between the two houses so far as representing population is concerned. But I think no one anywhere should protest a properly qualified right of the citizens of any State to make their own free decision in that matter.

So far as the ultimate decision in California under such an amendment is concerned, I believe I would support a reasonable modification of the one-manone-vote rule in the election of the State senate.

That belief is based on the past and the present, but it also has the future in mind.

Senator BAYH. We are grateful to you, Mr. Champion, and to your Governor for expressing interest.

Would you take a moment or two to relate one or two things to us and allow yourself to be subjected to questioning?

Mr. CHAMPION. I would be glad to do so. I might add that Senator Rattigan, who is to follow me, was a member of that reapportionment committee and probably has a good deal more detailed data referring to that commission.

However, I shall be glad to answer any questions.

Senator BAYH. Fine.

I would like to ask one question concerning one of the three points, the second one, referring to initiative and referendum. As I read the statement, the Governor is suggesting that we make this mandatory. Mr. CHAMPION. Well, at least that they should be available. Senator BAYH. Given the opportunity-I would not say that is mandatory, but that this would apply to all things, not just the reapportionment, the way I read it. Is that the intention?

Mr. CHAMPION. No, Senator-we are not advising that you should tell all States that they should have initiative and referendum on all subjects. We think, however, they should be available on the subject of reapportionment.

Senator BAYH. I see I did not read it as carefully as I should have. This is a question that has been before the committee several times and it is good to get your thoughts because as you pointed out, some of the States do not have this and some of the States are concerned that, if a constitutional amendment is adopted, we not get ourselves into a situation where a system is bound into a State legislative branch. one of the houses, which cannot be removed.

I will wait and ask these questions of the other member of your legislature here.

Mr. CHAMPION. Fine. I might add that on that question in Cali fornia, because of the growth problem, and this was brought out in