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Again, Mr. Chairman, thank you for inviting the Commission to testify before you. We would be happy to answer any questions you [The prepared statement of Mr. Potter follows:) PREPARED STATEMENT OF HON. TREVOR POTTER ON BEHALF OF THE FEDERAL
ELECTION COMMISSION Mr. Chairman, Members of the Subcommittee, good morning. I am Trevor Potter, Chairman of the Federal Election Commission. It is a pleasure to appear before your Subcommittee this morning.
As you know, the Commission is responsible for the implementation of the Federal Election Campaign Act of 1971, as amended, and Title 26 of the Presidential Election Campaign Fund Act, pertaining to the certification of matching funds in the presidential primary elections, grants to major party Presidential candidates in the general election, and payments to the National political parties for their national nominating conventions.
The Commission, as an independent agency, will administer whatever legislation is enacted concerning the payment of federal funds to Presidential candidates and nominating conventions.
Accordingly, on behalf of the Commission, I offer the following comments for the Subcommittee to consider:
It is our understanding that the Subcommittee is considering a proposal to address the issue of Presidential succession should the President-elect die after winning the popular election, but before the casting or counting of the electoral college votes. Specifically, it is our understanding that the Subcommittee is considering a proposal that would amend Title 26, $9008, to add an eligibility requirement in order for a national committee to receive its convention funding. The party committee would be required to agree that, in the event of the death of the party's Presidential nominee after the popular election, but prior to the electoral college count, it would nominate its Vice Presidential candidate as its Presidential nominee.
Under current section 9008 of Title 26, each major party is entitled to a public grant of $4 million (plus a cost-of-living adjustment) to finance its Presidential nominating convention. In 1992, this formula resulted in each of the two major parties receiving $11.048 million. In addition, the Commission's implementing regulations require the national committee of a major political party to agree to comply with certain conditions in order to be eligible to receive such convention financing: For example, under 11 C.F.R. 89008.8(b) of the Commission's regulations a national committee shall establish a convention committee and shall file an application statement.
The convention committee then shall:
(1) register with the Commission as a political committee, and shall receive all public funds to which the national committee is entitled;
(2) agree to various conditions, such as compliance with expenditure limitations, the filing of convention reports, establishment of bank accounts, and furnishing expense information to the Commission upon request. This agreement is also binding upon the national committee.
Given this contractual framework the Congress could establish additional conditions precedent to the receipt of federal funding for party nominating conventions. The Commission takes no position as to whether or not adding the proposed new conditions is an appropriate solution to the Presidential succession concerns you are seeking to address. That is Congress' decision, and is beyond the purview or expertise of the Federal Election Commission. However, should this proposal become law, the Commission would be able to promulgate implementing regulations.
There are three concerns which the Subcommittee may wish to consider in its deliberations regarding this proposal. First, what sanctions should apply in the event a party committee does not comply? The most obvious, of course, is to require repayment of the funds.
Second, what would the schedule be for implementation of this proposal? It would undoubtedly require the parties to amend their rules and fundamental charters, actions which may only be possible by the parties assembled in their quadrennial conventions.
Finally, what provision should be made for the possibility that one or both of the major parties could decide to forego federal convention funding rather than accept the conditions for succession of the Vice Presidential nominee?
Again, thank you for inviting me to testify before your Subcommittee. I would be happy to answer any questions you may have.
Senator SIMON. I thank you, Mr. Chairman. We appreciate it.
STATEMENT OF PROFESSOR AKHIL REED AMAR Professor AMAR. Thank you, Mr. Chairman. It is a great honor to be with you here today. I agree that there is a problem in our current system. I characterize it in my written statement which I have provided as a time bomb that is ticking, and I believe that we can defuse it now with a simple statute that doesn't require the major mechanism of constitutional amendment. I agree, therefore, with Walter Dellinger and with the Chair, as I heard him, that I don't think an amendment is necessary to solve these technical glitches in the succession scheme.
My proposal, which is elaborated in much more detail in my written remarks, is based on an intuition and then two or three implementing suggestions for getting to that intuition, achieving it. Here is the intuition, and this tracks, I think, Senator Bayh's remarks, also. The people vote on election day and they think on election day that they have elected the next President and Vice President of the United States, and that electoral mandate from the people in this awesome, wonderful moment that I think shines out to the rest of the world when we the people of the United States peacefully elect our President and Vice President—that should, if at all possible, be respected.
If the President were to die after inauguration, the Vice President would take over under the clear terms of the constitution, article II. If the President-elect were to die the day before the inauguration, the Vice President-elect takes over under the clear provisions of the 20th amendment, and my intuition is that same result, if possible, should be achieved all the way back through the process to election day. After election day, de facto, even if not technically within the meaning of the particular words “President-elect" of the 20th amendment de facto, we have in most situations a Presidentelect and a Vice President-elect, and if something happens, God forbid, to the person who won the election on election day, the most sensible solution, it seems to me, would be for the Vice Presidentelect to take over. That person really should be sworn in on election day.
That is the intuition. If you don't share that intuition, then you won't like my proposals, but if you do share that intuition, then here is how I propose we get from here to there. We need to modify the timing of certain critical events. In particular, if a death occurs on the eve of the meeting of the electoral college, there is going to be rampant confusion, chaos, and time is needed, it seems to me, for everyone-for the polity, for the parties, for the members of the electoral college to absorb the situation, to figure out what the rules are and what they should do.
Therefore, I propose that Congress pass now, in advance, before the crisis arises, legislation as part of Title 3 that in the event of death—and I specify for major party candidates, and you could provide triggers for who would fall in that definition. It doesn't seem particularly sensible to do it for every minor candidate. The electoral college could be postponed a suitable time, a week or so, to allow the situation to be absorbed.
This is, in fact, what was clearly suggested in the legislative history of the 20th amendment, to which Professor Dellinger referred both in his oral and his written remarks. They actually, when they looked at the 20th amendment, thought that that was a sensible thing to do.
A second possible date modification I suggest is the election day itself. Prior to the election day, and this is the flip side of my intuition, we do not yet have, in effect, a President-elect and a Vice President-elect. The people have yet to speak. I believe, if possible, they deserve to speak with the utmost clarity that we can create in an election system, and I believe that they are entitled to speak with a clear menu of choices before them.
If, God forbid, on the eve of election day a leading Presidential candidate were to die-and, again, we can specify what we mean so that not every minor candidate's death would trigger this—I believe the election should be postponed so that the parties can designate a new slate of candidates for the American people to pick on election day. The postponement could be for up to, say, 4 weeks if the death occurred literally the first Monday of November or something. If it occurs before Labor Day or before October 1st, no additional time would be necessary. We would have the time, I believe, to gear up a process of a new slate of nominees and an election that would clarify the issues.
Senator SIMON. But that would require a constitutional amendment.
Professor AMAR. I don't believe so. The idea of the first Tuesday in November is just provided for in Title 3 of the U.S. Code, and that date could easily be modified. The only date that really is fixed in the Constitution is January 20th, and the one concern that this does raise is the more you push back the election, the more difficult it is to have a transition, of course. So you are going to squeeze the transition, but, in my view, better a bumpy transition and perhaps an awkward honeymoon when the folks first are inaugurated than having the wrong people in office for four years. Let us give the American people, if possible, the chance to do it right on election day and pick the candidates.
So, once again, this actually is in the legislative history of the 20th amendment, the suggestion that Congress by ordinary statute could push back the election day in the event of a death right before the election. So both of those things that, just by way of background, I kind of came up with by brainstorming and looking at the Constitution turn out, after I did a little bit more research, to have been things that were proposed in the official House report that Aaron Rapapport sent me for the 20th amendment.
So those are two proposed suggestions. Now, here is the third, that the Greeley precedent from 1872–1873 is a bad one. The Greeley precedent, in effect, said Congress in counting the electoral votes won't count the votes for someone who is already dead. Along with Senator Bayh, I think that that decision was made sort of hastily and without a lot of forethought. Not a lot rode on it because Greeley only got three electoral votes; he wasn't going to win anyway.
It seems to me perfectly legitimate as one, not the only but one option that the electors might pursue, the members of the electoral
college, to vote for—let us say the candidate dies before the day before the electoral college meets. The electoral college meeting is postponed for 6 days, 7 days, and they continue to vote for the people who won the election, for the now dead Mr. Smith for President and his running mate, Ms. Jones.
If Congress counts those votes, the practical result of that will be on inauguration day Jones will become President, which is what would have happened if Smith had died after inauguration, what would have happened if Smith had died after the electoral college votes were counted under the 20th amendment, which probably would be the case if Smith had died the day after the electoral college meets. I agree with Professor Dellinger that that is the clear intent of the 20th amendment. Its particular wording is not particularly clear on that, so there is some ambiguity about that time period after the electoral college has met and before the electoral college votes are counted.
But here is the basic intuition of the 20th amendment. The basic intuition is, in effect, although it seems counter-intuitive, to swear in dead people. What the 20th amendment, in effect, says is on inauguration day swear in the fellow who is dead; one nano-second later, the Vice President will assume the office under the clear terms of article II and the 12th amendment.
I am saying let us carry that intuition backwards all the way in time for the entire period when we really do have, de facto, in the minds of all American citizens, or most of them—and this was Senator Bayh's point-a President-elect. Let us carry that intuition all the way back to the Tuesday in November. After that Tuesday, let us treat that person, in effect, as a President-elect. If the electoral college chooses to vote for that person, Congress should count those votes, and what that will mean is that Jones will take over on inauguration day, which is what the American people, I think, thought they were voting for.
Just to sum up the intuition and the idea one other way, I think the American people see all the other steps in the process after election day as procedural window dressing-inauguration gala balls and the swearing-in ceremony and the official ceremonial counting in the Congress and the meeting of the electoral college. They basically think that they voted for President and Vice President. They voted for Smith and Jones, and if Smith dies Jones is supposed to take over. That should be true regardless of the exact moment when Smith's heart stops beating, whether it is the day after inauguration, the day before, and I would take it all the way back if that is what the electors decide to do.
The reason today that they wouldn't be able to do that is we have the Greeley precedent on the books, and so it wouldn't at all be clear to them that if they did that you all would count their votes, and if you all wouldn't count their votes, then the tremendous irony would be that the other fellow, the fellow that lost on election day, might be the only living person with Presidential electoral college votes that would be counted by this body, and that, it seems to me, would be a clear perversion of the will of the people as expressed on election day.
So the intuition is Jones really is the person who should take over. The particular proposals have to do with pushing the dates
backwards to eliminate confusion and chaos, and to allow the voting for and counting of votes for dead people seems counter-intuitive, but achieves the sensible result of the Vice President taking over.
If I could just make three small additional points unrelated at the end, first, I don't believe that the Congressional Research Service proposal will cure the problem. It shortens the window. It actually tries to push everything in the other direction, change the days by moving things up, saying, well, if it is only 10 days rather than 41 days, it is 74 as likely that someone is going to die in that period. It tries to close the window of vulnerability, but it doesn't close it shut. As long as the window of vulnerability is open, we are going to have this problem.
My further claim is, in closing it, but not all the way, it actually—to use the window metaphor, more cold air is going to come in with that. When you have less time to deliberate, only 10 days rather than 41 days, possibly—if the death occurs in that 10-day period, it is quite often going to occur right before the electoral college is going to meet. There is going to be chaos. People won't know exactly how to act and you are much more likely to get a split vote. So I actually don't think that the Congressional Research Service proposal can completely sort of cure this problem because it doesn't close the window shut.
My second point has to do with a glitch in the 25th amendment, which is perhaps a little bit beyond the narrow purview. But if you are trying to clean up all of these problems, here is another one. The President under the 25th amendment becomes disabled. The Vice President under the 25th amendment triggers a disability initiation process and becomes acting President. Now, what happens if the Vice President becomes disabled?
If he dies, no problem; the Presidential Succession Act kicks in the speaker of the House. If the President gets better, no problem; the acting President steps down and the President takes over. But if the President is disabled and the acting President is disabled, there is not even a mechanism that the 25th amendment clearly contemplates for doing anything about that. There is not a similar mechanism for initiating an inquiry into acting President disability as was provided for Presidential disability under the 25th amendment. So, that is just one completely unrelated point, but if you are trying to solve all these problems with a statute, there may be a statutory solution to that.
My final point has to do again with Presidential succession after inauguration, and I mention this very briefly in my last footnote of my written remarks. Suppose one day after inauguration both the President and Vice President die. Under the Presidential Succession Act, the Speaker of the House, or next in line, becomes President. As Senator Bayh says, there is a real problem if those folks represent the party that was repudiated on election day. The people voted for one party and they are going to get, under the current scheme, for 4 years the other party. That is a legitimacy problem.
I suggest in that footnote at the end of my remarks that that is not required by the Constitution in any way. The Constitution, in the event of double death, provides that Congress by statute may