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Mr. DELLINGER. Well, why don't you hear that? That is your choice, sir.
Senator SIMON. Yes.
Professor AMAR. I think that the 20th amendment's legislative history is really quite clear in the intendment that a person becomes President-elect when the electoral votes are cast, and I think General Dellinger is very persuasive on that. The problem is it is not clear from the text of the 20th amendment, and the rest of the Constitution seems to use a different triggering mechanism. It is when the votes are counted, under article II and the 12th amendment, that a person shall then be President.
If I had to decide which is the best interpretation, I think I would stick with General Dellinger's that the clear purpose of the 20th amendment was to displace that. They just didn't do, frankly, a particularly good job of making that crystal clear.
One way to say that to Professor Berns is, just in the colloquy we had before, he thinks the clear intent of the 20th amendment was also that the new Congress, not the lame duck Congress that might have been repudiated at the polls, but the new Congress would be the Congress counting the votes and, in the event of a contingency, deciding on who wins if no one got a majority. The clear intendment, the purpose, of the 20th amendment is not in the language of the 20th amendment, again, and there is nothing in the 20th amendment that would prevent, as I read it, the lame duck Congress from trying to do all this stuff before January 3.
So the 20th amendment is somewhat unhappily drafted in these two key respects. Is it going to be the new Congress or the old Congress? They wanted it be the new, but they didn't say so clearly. When is someone President-elect? I think they clearly meant when the electoral votes are cast. They just didn't say so very clearly.
If I had to decide it, though, as a legal proposition or if I were advising this body in the event that ever occurred, I would side with General Dellinger. But precisely because there really is this great unclarity and someone so distinguished as Professor Berns and many others would disagree, I think we should clear it up now with a clarifying statute.
Professor BERNS. May I say, Senator-
Professor BERNS. Looking at the legislative history of the 20th amendment, I would agree that one can derive from it the intention at the time to interpret the term “President-elect” as my colleagues on this panel have done. But, you know, it is not in the text. There is this question, and again I repeat to a large extent it turns on what significance we attach to the powers of the Congress when the votes are counted. That statute, to repeat, does say objections can be made, and they have to be settled.
But beyond all that, to reiterate something that Professor Amar just said, it is so simple to get rid of this ambiguity. All you have to do is use the authority of section 4 of the 20th amendment itself, pass a simple statute of the sort that I have mentioned here, and that resolves the difficulty. General Dellinger and our disagreement has no significance after that.
Mr. DELLINGER. That is correct.
Professor AMAR. I think we all agree that a clarifying statute is in order. There is one respect, though, in which I disagree even with Professor Dellinger and with Professor Berns. We are talking about words in the Constitution. Here is a word that is not in there; it is not in the 12th amendment either. It is put in in brackets in both Professor Berns' book and I think in his testimony. It is the word “living.” It is not in there, and I would say even before the 20th amendment that it would be kind of silly and not common sensical at all—and the Constitution is a common-sense document-if George Bush somehow had to be President because Bill Clinton died the day before the electoral college votes were counted in Congress.
Senator SIMON. Let me just comment. There is some confusion and what we need is clarity, and I think the clarity can be achieved statutorily. What I would like to do is to use the three of you as consultants.
Mr. Chairman, there is no question in terms—I know of no reason, but there is no constitutional question of our ability to say, in order to be eligible for funds, the political party has to clarify their succession rules. Am I correct or am I not?
Mr. POTTER. I would hesitate to state that there was no constitutional question, particularly in the presence of the three persons at this table who may have a better view of it. However, I would say that my understanding of the Supreme Court's position in these matters—in particular, the Buckley v. Valeo decision is that the Congress may offer the parties a deal in which they accept Federal funding conditional on fulfilling certain obligations or agreements, and that in that framework a condition on making the Vice Presidential nominee the Presidential successor from the party standpoint would appear to fit within that framework.
Senator SIMON. General Dellinger?
Mr. DELLINGER. Let me just add that I do, Trevor, have constitutional misgivings about Federal funding being used as a point of leverage on political parties. I know there are some senses in which we do that already in the law, but I think we should hesitate long before we tell political parties how to select their candidates.
A party may wish, for example, to name a Vice Presidential candidate as a sop to a small but disgruntled minority within the party that would not be the person that they would put forward for their electors if they had a choice. I do think it would be a very troublesome precedent to move down the line of using the Federal funding of Presidential campaigns as leverage on the parties.
Would we propose that parties would have to have candidates of different genders in order to be eligible for Federal funding? How far would we go? I find that to be sort of a troubling path even if Buckley v. Valeo would indicate that it is a path that might conceivably be open.
Senator SIMON. I regret that time is a factor here.
I will get back to all four of you with rough draft language and we will see where we go from here. I really appreciate your scholarship and your research and your helpfulness here.
Our hearing stands adjourned.
ADDITIONAL SUBMISSIONS FOR THE RECORD
PREPARED STATEMENT OF LAWRENCE D. LONGLEY ON BEHALF OF THE LAWRENCE
UNIVERSITY Mr. Chairman, my name is Lawrence D. Longley, and I am Professor of Government at Lawrence University in Appleton, Wisconsin. Since 1985, I have also served as Co-Chair of the Electoral Systems Research Committee of the International Political Science Association.
I have been a “student” of the processes of presidential election for close to twenty-five years, and over this time have written some forty articles, papers, and books on change or reform of the electoral college means of choosing the U.S. President. These publications have included The Politics of Electoral College Reform, published by Yale University Press in 1972 and 1975, and—with noted Washington journalist Neal R. Peirce—The People's President: The Electoral College in American History and the Direct Vote Alternative, also published by Yale University Press, which was acclaimed by U.S. News and World Report during the 1992 presidential election as “the bible on the topic.” I might add that in both the 1992 and 1988 elections, I served as a presidential elector, one of the 538 faceless individuals who actually elect the United States President—including in the tragic instance of a possible death, disability, or resignation of a presidential candidate immediately prior to or in the weeks following the November presidential election. DEATH, DISABILITY, OR RESIGNATION OF A PRESIDENTIAL CANDIDATE OR PRESIDENT
ELECT Under the United States' multistage process of electing a President-stretching from the day that the national party conventions nominate candidates to the day in January that a new chief executive is inaugurated-a number of contingencies can arise through the death, disability, or withdrawal of a prospective President or Vice President.
The first contingency may arise through the death of one of the nominees between the adjournment of the convention and the day in November when the electors are officially chosen. No law covers this contingency, though both the Democratic and Republican parties have adopted procedures to cover the eventuality. The rules of the Democratic party, approved by its National Committee most recently on March 23, 1991, provide that the approximately 410 members of the Democratic National Committee shall have the power to fill the vacancy. A resolution adopted by each Republican National Convention similarly authorizes the Republican National Committee to fill any vacancy, but in the Republican case with each state or territory's delegates empowered to cast the same number of votes that the state or territory had at the original nominating convention. Alternatively, the Republican National Committee is authorized to call a new convention, a step it might well take if the election were not imminent.
Should they be called on to fill a vacancy caused by the death of a presidential candidate, the national committees might in most instances select the vice presidential nominee as the candidate for President and substitute a new candidate for Vice President. If the death of a candidate took place just before election day-espe
cially if he were one of the major presidential candidates Congress might decide to postpone the day of the election, allowing the national party time to name a substitute and the new candidate at least a few days to carry his campaign to the people.
At no time in our history has a presidential candidate died before election day. In 1912, however, Vice President James S. Sherman, who had been nominated for reelection on the Republican ticket with President Taft, died on October 30. No replacement was made before election day, but thereafter the Republican National Committee met and instructed the Republican electors (only eight had been elected) to cast their vice presidential votes for Nicholas Murray Butler. In 1860 the man nominated for Vice President by the Democratic National Convention, Benjamin Fitzpatrick of Alabama, declined the nomination after the convention had adjourned. By a unanimous vote, the Democratic National Committee named Herschel V. Johnson of Georgia to fill the vacancy. The Democratic vice presidential nominee in 1972, Senator Thomas F. Eagleton, resigned a few weeks after being nominated after it had been revealed that he had twice been hospitalized and had received electroshock therapy for depression. The Democratic National Committee hastily assembled and selected Sargent Shriver of Massachusetts as his replacement.
The second major contingency may arise if a presidential or vice presidential candidate dies between election day and the day that the electors actually meet—under curre law, a period of approximately five weeks. Theoretically, the lectors would be free to vote for anyone they pleased. But the national party rules for the filling of vacancies by the national committees would still be in effect, and the electors would probably respect the decision of their national committee on a new nominee. Again, the elevation of the vice presidential candidate to the presidential slot would be likely but not certain.
The only time that a candidate died in this period was in 1872, when the defeated Democratic presidential nominee, Horace Greeley, died on November 29—three weeks after the election and a week before the electors were to meet. Sixty-six electors pledged to Greeley had been elected, and they met to vote on the very day that Greeley was laid in his grave. Sixty-three of them scattered their
votes among a variety of other eminent Democrats, but three Greeley electors in Georgia insisted on marking their ballots for him despite his demise. On January 6, 1873, Congress refused to count these votes in the official national tally.
The third contingency may occur through the death of a President- or Vice President-elect between the day the electors vote in mid-December and January 6, the day that the votes are counted in Congress. There would likely be debate about whether the votes cast for a dead man could be counted, but most constitutional experts believe that the language of the 12th Amendment gives Congress no choice but to count all the electoral votes cast, providing the “person” noted for was alive when the ballots were cast. (The 1873 precedent, in which Congress refused to count the Greeley votes, would not be binding, because Greeley was already dead when the electors cast their votes.)
The U.S. House committee report endorsing the 20th Amendment sustains this view. Congress, the report said, would have “no discretion” in the matter and “would declare that the deceased candidate had received a majority of the votes.” The operative law would then be section 3 of the 20th Amendment, which states: “If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice President-elect shall become President.” And when the Vice President-elect took office as President, he would be authorized under the 25th Amendment to nominate a new Vice President.
Similarly, if the Vice President-elect should die before the count in Congress, he would still be declared the winner, and the new President would be able to nominate a replacement.
A fourth contingency may be caused by the death of either the President- or Vice President-elect between the day the votes are counted in Congress and Inauguration Day. If the President-elect died, the foregoing provisions of the 20th Amendment would elevate the Vice President-elect to the presidency. In the event of the death of the Vice President-elect, the 25th Amendment would similarly authorize the new President to nominate a Vice President, subject to the approval of Congress.
No President-elect has ever died in this period. But on February 15, 1933, a week after his election had been declared in joint session of Congress and three weeks before his inauguration, President-elect Franklin D. Roosevelt barely escaped a would-be assassin's bullets in Miami, Florida.
In the event that neither a President nor a Vice President qualified on Inauguration Day, January 20, then the Automatic Succession Act of 1947 would go into effect, placing the Speaker of the House, the President Pro-Tempore of the Senate, and then the various Cabinet officials in line for the presidency.
A BETTER SOLUTION In its Hearings today, the Subcommittee on the Constitution is exploring a number of issues and concerns raised by this complex process for electing the United States President. Certainly there are valid questions concerning the operations of a process that chooses electors on a date in one month, mandates their meeting some six weeks later in another month, and officially counts their electoral votes on a fixed date in a third month. During this time of over two months, there are inherent possibilities of difficulty (and certainly understandable confusions and uncertainties) should a presidential candidate or President-elect die, become disabled, or resign. A number of these concerns have been identified in the testimony prepared for these Hearings by Professor Akhil Reed Amar of Yale Law School. In his statement, Professor Amar has suggested a number of reasonable statutory remedies for specific flaws and uncertainties in the necessity of a presidential candidate or President-elect succession. These recommendations are grouped by him under the umbrella designation of a “wonderfully simple” solution.
I would suggest that these statutory proposals by Professor Amar, along with similar remedies discussed by Thomas H. Neale of the Congressional Research Service and others, are generally laudable, but nevertheless fail to deal with possible problems inherent in presidential elections because of the continued existence of our indirect presidential electoral process involving the electoral college, the fatallyflawed institution by which our indirect presidential elections are conducted, and presidential electors, the persons who actually elect the President.
Alternatively, a system providing for the direct election of the President along the line of S.R. Res 297, introduced by Senators David Pryor and David L. Boren in 1992—the direct vote plan which has in recent decades enjoyed the unified support of the American Bar Association, the AFL-CIO, the League of Women Voters, the Chamber of Commerce of the United Sates, and Common Cause along with Presidents Nixon and Carter-is a “wonderfully simpler” solution to many of the problems discussed here today. In short, it is a better solution than the more contrived statutory proposals which have been advanced.
A direct election of the President would eliminate many of the succession problems arising under the present electoral system because once the popular votes were certified following the November election, there would be a clear and official President-elect. Should an unfortunate accident befall him in the weeks after electoral certification and prior to Inauguration Day, the Vice President-elect would succeed him as President-elect, assuming the presidential office on January 20.
This simpler solution would thus remove most of the uncertainties that now exist in the election of the President resulting from the elongated and multistaged mechanism of electoral vote determination in November, electoral college meetings in December, and electoral vote counting in January. In its place would instead be a direct tally and certification of popular votes in November.
Also removed by a direct vote plan would be the opportunity for mischief in the election of the President by electors should the death, disablement, or resignation of a candidate or President-elect occur during the six weeks after the popular vote but prior to the mid-December electoral college meetings (or, for that matter, shortly prior to the popular election itself at a time insufficient to allow for candidate replacement or election postponement).
Members of the contemporary electoral college are seldom selected for their intelligence or public stature; today the electoral college is little more than a state-bystate collection of political hacks and fat cats (and I speak myself as a presidential elector in both the 1988 and 1992 elections). Any process which might rely upon presidential electors in unsettled circumstances voting with particular wisdom or in light of broad national interests would be at best a chancy operation.
Presidential electors do not think such deliberative responsibilities should devolve upon themselves. In the most recent Hearings of this Subcommittee on the Election of the President, on July 22, 1992, I reported that the Wisconsin electoral college went on record in 1988 overwhelmingly in support of the abolition of the electoral college. The argument that persuaded the electors there assembled to support the elimination of their own office was the argument that the election of President was too important to be left to people like us.” (“The Electoral College and Direct Election of the President,” Hearings Before the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 102nd Congress, 2nd Session, July 22, 1992, p. 113).
In the concluding words of his Prepared Statement for today's Hearings, Professor Amar states: “Election Days are awesome moments in a well-functioning democracy, and deserve to be done right.” This is entirely correct, but the best way of ensuring that our presidential elections are done right would be to abolish the distorted and