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Washington, DC.
The subcommittee met, pursuant to notice, at 10:35 a.m. in room
SD-226, Dirksen Senate Office Building, Hon. Paul Simon, chair-
man of the subcommittee, presiding.

STATE OF ILLINOIS Senator SIMON. The subcommittee hearing will come to order. First of all, my apologies to the witnesses. I don't like to have people keep me late and I don't like to keep other people late, and I got jammed in on one of these things that I couldn't get out of.

We have the question-and let me pay tribute to Thomas H. Neale, who is an analyst in the Government Division of the Congressional Research Service, for his research in this area about what we do in this area of Presidential succession. It is clear what happens after people are sworn in. It is clear that a political party has the right. We have had recent examples. There have been three examples where Vice Presidential nominees have left the ticket.

In the case of Stephen A. Douglas, his Vice Presidential nominee, a Senator, left the ticket. In the case of George McGovern, our colleague, Senator Tom Eagleton, left the ticket. In the case of William Howard Taft in the 1912 election, the Vice President, his nominee, died just 6 days before the election.

What came out of a hearing that we had last year on another subject is less clear. There is some question on the part of experts on the period between the election and the swearing-in, though the 20th amendment covers part of that, but there is apparently a great deal of uncertainty of what would happen between the time the electoral college meets and the electoral college vote is counted.

Realistically, we have had cases. Horace Greeley died just a few days after an election. Horace Greeley was not elected, but we some day may have a problem and we can correct it statutorily, but we ought to take a look at the problem to see if something can or should be done.

I am pleased that we have some people who have done work in this field. First of all, our first witness is the former Senator from the State of Indiana, who has contributed a great deal to constitutional discussions over the years and has been in the leadership in this field, Senator Birch Bayh. STATEMENT OF HON. BIRCH BAYH, A FORMER U.S. SENATOR

FROM THE STATE OF INDIANA Senator BAYH. Thank you very much, Mr. Chairman. I must confess it is a privilege to be here with the other witnesses and to share my thoughts with you. As I go down this list, it would appear to me that probably Assistant Attorney General Dellinger is a lot busier than any of the rest of us, and if you would care to take him ahead of me that is all right with me.

Senator SIMON. If you would prefer to listen to the other witnesses first and

Senator BAYH. No. I just, as a matter of courtesy—I know how busy he must be, and you know all I am doing is trying to make a living as a lawyer.

Senator SIMON. Well, this body is very prejudiced in favor of Senators and former Senators when it comes to testifying. Maybe we shouldn't be, but we are, so we are calling on you first here.

Senator BAYH. Well, since you are the chairman and a sitting member, I certainly wouldn't want to take issue with your giving preference to former Senators.

It is a privilege to have a chance to be here, and as I see Walter Dellinger and Walter Berns, particularly, they were kind enough to testify before Senate Judiciary subcommittees back when I was interested in this kind of thing and it is a privilege to be with them and Mr. Potter and Professor Amar.

I want to compliment you, Senator Simon, for looking into this issue. As you may have observed, this is a subject that human nature tries to avoid. We don't like to think about Presidents or Vice Presidents dying. We don't like to think of them becoming ill, but the fact of the matter is they do, and so I think that although people might like to hide the fact that Presidents do die, or Presidential candidates or Presidents-elect, candidates, et cetera, do die and we need to give consideration to that.

When we were worrying about the 25th amendment, we tried to find out exactly what various generations of legislators and leaders thought, and there is not a very good track record there. In fact, at Philadelphia there was only one comment. The delegate from Delaware, a fellow by the name of Dickinson, asked one sentence, what is meant by the word "inability" and who shall decide, and it was never answered.

It was with that rather sketchy record we began looking at the 25th amendment. The 12th has very little record. The 20th has more direction. I hope that a study of the 25th amendment dealing with both succession and disability at a little later stage of the game after they have taken the oath of office I think you have a pretty good track record there of what Congress was considering.

I might say a word or two about the 25th amendment because it is, I think, a pretty good foundation on which to build. It is not a perfect document. There are shortcomings which are obvious, and I must say at the time we were deliberating on it we thought about these other matters that now you are addressing, and perhaps we were not as conscientious as we should be in excluding them. It was a political decision. We thought, dealing with a constitutional amendment, it would only carry so big a load, and dealing particularly with the disability question in addition to filling vacancies in the Vice President, we thought we ought to try to concentrate on that. Now, you are coming along, I am happy to see, and can deal with this, I think, by statute.

If you look at the 25th amendment, Presidential power and disposing of it or transferring it is probably the most controversial issue in the political process because that is the most power. When President Reagan, I like to say, involved himself in the nonuse of the 25th amendment by transferring the Presidency temporarily to Vice President Bush and saying that this wasn't what Congress intended, frankly I think he did the right thing, but for the wrong reason because that was the only way he could do it.

But after he did that, then I think every political columnist in this town and perhaps elsewhere in the country wrote rather scathing articles pointing out the weaknesses of the 25th amendment, which were obvious. The University of Virginia Miller Center commissioned a study chaired by former Attorney General Brownell and myself and a number of other very_learned people, excluding me from the learned category. We had Fred Fielding, the general counsel to President Reagan at the time of the assassination attempt, as well as at the time of the transfer of power. We had a number of people.

After a lengthy of study of about 142 years, the commission wrote a report, which I would be glad to make available to your committee if you don't already have it, that really gave a strong endorsement to the 25th amendment not as a perfect solution, but as the best solution. We found out, and in studying it in hindsight it was certainly accurate, that when you try to solve one of the problems that exists in the 25th amendment, a larger one is created. Enough said for that.

Let me urge you to go forward with dispatch now on this amending process. If you do it now before there is a crisis, you can deal with it dispassionately, nonpolitically, and try to find the right solution. If you wait until a tragedy occurs, it will be right in the heat of a political environment that makes it almost impossible to make an objective assessment. Now, you can deal with it generically. If it happens at or shortly after an election, the people who must solve it will deal with it in terms of how it affects them or their party. So I think it is certainly wise to go forward now.

I can't help but sort of give a backhand slap at the electoral college system which, as you know, I did everything I could in my power to get rid of the darned thing, and we got 50-some votes. The electors keep popping up as spoilers, and as you deal with this problem one of the things you have to deal with is faithless electors and how much of a marching order you can give to electors. My concern is you can't give them very much of a marching order, so they are there and I think you have to deal with it.

I personally believe, and I think the other witnesses probably will take issue with me, but I personally believe if you look at the combination of article II, the 12th, the 20th and the 25th amendment, I think you have a clear pattern of what Congress has decided over the years and what, with the will of the people, given an election and the importance of predictability—I think you really probably don't need a statute. But I think it is wise to have one to make sure there is no question about it.

Because there are five of us testifying, we might have five different ideas about that particular issue, and I urge you to proceed with full speed with a statute that will take into consideration what the people wanted at the election, if it is after the election, and do it in a way in which it can be predictable as to what the outcome will be.

I think that you should give serious consideration to that time frame immediately following the election and not wait to consider it after electors have been chosen at the State level before their votes are cast in Washington, so that you have a pattern from the time the people decide who they want for their President, and try to find a way in which you can structure this so the people will get, in the final analysis, what they thought they were getting on election day.

One of the things about the electoral college system is that a lot of people don't even understand it. There are electors. Even with all the publicity that they got because of Mr. Perot and one thing and another, if there had been a malfunctioning so that the electors could have destroyed what the people wanted to have happen, there would have been a great deal of distress among the electorate.

I would ask you if you might not want to consider what happens if both the President and the Vice President die. The normal succession act can take place, but if you have an election where the people desire a real change in policy and they choose a President and a Vice President of one party who then die and the succession then goes to the speaker of the House of a party that has just been voted down, I think you have a problem there.

You have another situation where, if you are doing something in the use of the Succession Act, if you have a President, for example, who—well, let me change directions here. If a President dies or a Vice President dies, as unfortunate as it may be, it is a simpler problem to solve than if they are disabled. I would suggest that perhaps you and the committee should give consideration to the disability question. It is a much more difficult animal to ride because if the President is dead, unfortunately, he is not a complicating factor. If he is alive, then to use the normal Succession Actthe 25th amendment provisions is what I would suggest to use because that has been pretty well thought out, but it is not without complications.

One of the complications you would find in the event this happened before the President and the Vice President were sworn in is there would be no Cabinet. You certainly would not want to use the Cabinet of the previous administration. However, as you know, the 25th amendment permits Congress to establish another body in the event something like this occurs that could then work in concert with the Vice President so he could assume the powers and duties as acting Vice President in the event the President is unable to do so.

But you have all of the pressures, the palace guard around the President-elect; you have the family, you have all of the various camps that may have supported the President and the Vice President in the primaries. So the disability question is one that is more difficult to deal with, but if you are going to try to patch up all these weaknesses I would suggest that you ought to try to give some attention to that because there is maybe not as great a chance, but there is almost as much chance that either the President or the Vice President are going to become disabled as if one of them might die in that period of time.

As far as the nominating process is concerned, I frankly would like to see if we can't get some uniformity so that both political parties—there is predictability about how they must act and what they must do, in what time frame. Beyond that, I think the present system operates pretty well.

I know you mentioned the fact that Presidential candidate Greeley died, and yet there were some votes cast for him. I really don't think that is a fair example because he came in a poor third and it was obvious that he wasn't going to be President. You had the two principal candidates that got the electoral votes, most of them, and I am not concerned about votes being cast for a Presidential candidate who is the obvious choice of the people who then dies and to permit the Vice President to succeed. Even if the votes have been cast for a dead President, that really doesn't concern me.

Why don't I just stop this mini-buster here, and if you have any questions I will be glad to answer them.

Senator SIMON. Let me just-and I do this because you have contributed more in this area probably than any living American with what you have done through the 25th amendment. Let me just summarize what CRS says, what Thomas H. Neale says here.

Following the 1992 Presidential election, the electors met, as required by law, in their respective States on December 14, 1992, fully 41 days after popular votes were cast on November 3. This interval arguably constitutes the period of perhaps the greatest uncertainty in the Presidential election calendar. Electors have been chosen and the results of their vote, and so forth.

This is the area where there is some uncertainty, or at least there are a great many people who believe there is some uncertainty. There are others who believe that there is not. It seems to me we have to devise a system where you minimize uncertainties, where you do not have, as you suggest, any kind of a partisan fight because there is an emergency that has occurred. We ought to know precisely what we do and where we go.

So I would just ask that fertile mind of Birch Bayh that I have seen work on so many problems to be reflecting on this. I think, clearly, we can solve this problem statutorily and the question is how we do it and where we go. We call someone the President-elect on the day after the election. That technically is not yet the case under the law.

Senator BAYH. If I might just interject, that is why it is my uneducated judgment here on this—but if you take what the 12th and the 20th amendment and what the people—it is what the people want, what they expect to get. To suggest that an election victory that has a clear-cut majority of the electoral votes on election day—to have something happen to a President and not be able to

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