required two-thirds majority, and that three-fourths of the States will ratify the proposed constitutional amendment in the shortest possible time. Such action would remedy two very serious omissions in our Constitution omissions which must be remedied if we are to insure the continuity and stability of our Government.

STATEMENT OF SENATOR JACOB K. JAVITS

I have been deeply concerned about the fact that, especially under present world conditions, the Nation for the second time in 20 years has been without a Vice President, an office whose function has grown in importance so greatly since the drafting of the Constitution. For this reason in the 88th Congress I introduced Senate Joint Resolution 138, a proposed constitutional amendment providing for the election of a Vice President by the Senate and the House of Representatives when the incumbent ascends to the Presidency, subject to the advice and consent of the new President. On December 12, 1963, I testified before this subcommittee in favor of my proposal and for the need of immediate action on this problem and on the related problem of Presidential disability.

When this subcommittee arrived at the consensus of views on both problems which was embodied in Senator Bayh's proposal, then Senate Joint Resolution 139, I felt that the need for prompt submission of a constitutional amendment to the States outweighed my own desire for a somewhat different formula on Presidential succession. I joined in sponsoring the reported measure and supported it on the Senate floor when it was adopted by the Senate on September 28, 1964. Unfortunately, sufficient time did not remain for the other body to act on it, and the joint resolution is, therefore, again before us, now as Senate Joint Resolution 1. Again I am a cosponsor of Senate Joint Resolution 1, and I strongly urge that it be reported favorably to the Senate as soon as possible. The impetus of public concern which was generated during the 13 months when the office of the Vice President was vacant must not be permitted to dissipate now that the immediate need is no longer present. And the critical need for a constitutional mechanism for dealing with Presidential disability is ever present. I commend the chairman and members of this subcommittee for giving this measure the high priority which it so much deserves. I also wish to commend very highly the American Bar Association, which was so much responsible for the creation of the consensus on this proposal which now exists.

U.S. SENATE,

Hon. BIRCH BAYH,

COMMITTEE ON ARMED SERVICES,
February 1, 1965.

Chairman, Subcommittee on Constitutional Amendments, Senate Judiciary Committee, Washington, D.C.

DEAR MR. CHAIRMAN: I share the concern displayed by you and the other Members of the Senate who have joined with you in cosponsoring Senate Joint Resolution 1 on the problem of Presidential disability and Vice-Presidential vacancy.

We all recognize that a problem exists by virtue of the fact that during prolonged periods of time the United States has in the past been and, absent some action by Congress, most assuredly in the future will be without the services of a Vice President. The duties and responsibilities of the Vice President have been greatly expanded in recent years and our country can ill afford to be without a procedure whereby a vacancy in the office can be filled. I am pleased to join with you in seeking some feasible method to provide for filling any vacancy which might occur as soon thereafter as is practicable.

While there is obviously widespread agreement that something must be done, there is also some disagreement on the best approach to the problem. There has been criticism of the proposal for allowing the President to name a new Vice President, even though this is subject to confirmation by a majority vote of both Houses of Congress. The argument has been advanced that this method has no relationship to any procedure now existing for filling a vacancy in an elective office.

I much prefer the method set out in Senate Joint Resolution 25 to that contained in Senate Joint Resolution 1. Senate Joint Resolution 25, which I introduced on January 15 of this year, calls for the election of a new Vice

President by the very people who elected the Vice President at the most recent election for President and Vice President-the electoral college. This method has much to recommend itself in preference to the naming of a new Vice President by the President: First, it does not violate the general electoral process; second, it would allow the selection to be made by individuals closer to the populace; and third, it would create a broader base of support for the person chosen. In addition to these advantages, this method would allow filling the office without any undue delay.

It is conceivable, and even likely, that the individual chosen by either method would be the same. This does not concern me. What does concern me, however, is the method by which he is chosen. It seems very logical that a new Vice President should be elected by the electoral college which was elected at the most recent presidential election.

Sections 3, 4, and 5 of Senate Joint Resolution 1, dealing with Presidential disability, has my support. However, I ask you to give very earnest consideration to amending the first two sections of Senate Joint Resolution 1 to include the substance of Senate Joint Resolution 25.

With best wishes,

Sincerely,

STROM THURMOND.

STATEMENT OF HON. KARL E. MUNDT, A U.S. SENATOR FROM THE STATE

OF SOUTH DAKOTA

Mr. Chairman, I appreciate this opportunity to present a statement to the subcommittee regarding the problem of presidential succession and presidential disability. I congratulate the subcommittee and Chairman Bayh for the prompt scheduling of these hearings and I urge equally prompt consideration and reporting of the proposed constitutional amendment. I believe the subcommittee is engaged in a highly significant and important discussion as it considers this amendment which has focused the attention and interest not only of all Members of Congress but all thoughtful citizens of America. I am pleased to be associated as a cosponsor of this proposal.

This amendment would merely confirm long-established precedent by making a part of the body of the Constitution, the proposition that in the event of death, resignation, or removal of the President, the Vice President or the next in line of succession succeeds to the office of the President for the unexpired portion of the term in counterdistinction to succeeding only to the "powers and duties" of the office as an Acting President.

The amendment would add the new feature of providing for the prompt filling of the office of Vice President in the event it should become vacant. It would provide, quite simply, that when a vacancy occurs in the Vice-Presidency, the President will nominate a person who shall become Vice President for the remainder of the unexpired term upon the approval of a majority of both Houses of Congress. This procedure gives the President the power to choose his potential successor, someone with whom the President enjoys harmonious relations and mutual confidence. The plan has the added advantage of selecting a Vice President with a minimum delay. In an age of advanced weapons and accelerated pace in national and international affairs, we can ill afford protracted delays because the Vice-Presidency is generally recognized as carrying with it specific and important responsibilities in the executive branch of government. In addition, this procedure contains the safeguard of congressional approval and might be likened to the current nominating practice of both major political nominating conventions which is to simply ratify, by convention vote, the presidential choice for the vice-presidential nominee.

The matter of presidential disability has long been extremely difficult and perplexing. This is emphasized by the fact that it has never been the subject of legislation even though our Nation has experienced virtual constitutional crises when faced with disability of our Chief Executive. During the lingering death of President Garfield and President Wilson's disability, indecision and confusion were apparent. No one would come to grips with the question so it has never been squarely faced. Fortunately for our Republic, these disabilities occurred at times when our national and international situation was relatively serene. The lesser disability of President Eisenhower in 1955, following his heart attack, and the assassination of President Kennedy, dramatically underscored the seriousness of the matter in times of perpetual international tension.

It is my opinion, and of a number of the expert witnesses who testified before this committee last year, that the solution reached in handling this puzzling problem is a happy one. The determination of the commencement and termination of the inability of any President is simply a matter of fact. If the President is capable of notifying the Vice President of this fact in writing, then under the terms of the amendment, the Vice President would assume the "powers and duties" of the office. If the President is not capable of so declaring, then the Vice President, with the concurrence of a majority of the heads of executive departments or such other body as Congress may designate, transmits this fact to Congress and the powers and duties of the office evolve upon the Vice President. The matter of terminating a temporary transfer of the powers and duties of the Presidency has long perplexed constitutional scholars. This amendment, I believe, has formulated a workable plan by providing that, when the President transmits to Congress his written declaration that no inability exists, he will once again assume the powers and duties of his office. However, if the Vice President, with the concurrence of a majority of the heads of the executive departments or such other body as Congress may provide for in law, transmits to Congress within 2 days his written declaration that the presidential disability continues, then Congress will decide the issue by a two-thirds vote of both Houses. The placing of Congress in the role of arbitrator is supported by ample precedent. The Constitution now provides that Congress shall elect the President and Vice President if the electoral college cannot elect and provides for the removal from office of the President and Vice President by Congress. Neither of these instances are considered a violation of the principle of maintaining the three separate branches of government.

Mr. Chairman, we have gambled much too long with the question of presidential succession and presidential disability. Providence has smiled upon us in the past. It is now imperative that we act quickly to resolve this constitutional dilemma. I urge this subcommittee to report this constitutional amendment so the Senate can approve it with dispatch.

CORINTHIAN ISLAND, BELVEDRE-TIBURON, CALIF.,

January 30, 1965.

Senator BIRCH BAYH, Chairman, Subcommittee on Constitutional Amendments, Judiciary Committee of the Senate, Senate Office Building, Washington, D.C.

DEAR SENATOR BAYH: Please accept this letter and the supporting exhibits as a statement to your Subcommittee on Constitutional Amendments in connection with your hearings on Senate Joint Resolution 1 (the Bayh-Celler amendment).

On Thursday of this week when I was in Washington, I discussed this with Mr. Larry Conrad, chief counsel of your subcommittee. He assured me that a letter such as this would be acceptable as a statement. He instructed that I address it to you.

When I met with Mr. Conrad, I left with him a copy of the book I wrote entitled "Illegitimate Power," the history of the secret ballot we lack today; its acceptance in our country's early years; its present-day power to reform Congress, the conventions, and the parties.

I also directed Mr. Conrad's attention to a Legislative Reference Service study issued by the Library of Congress on the procedure followed by the U.S. House of Representatives in choosing the President in event no candidate has received a majority of the electoral vote. This reports on the rules the House followed in electing John Quincy Adams as President in 1825. The responsibility for the election fell upon the House under the 12th amendment.

The heart of my contention in this statement is that the word "ballot" in article II, section 1, paragraph 2 and in the 12th amendment of 1804, equate to "secret ballot" in terms of modern usage.

I believe a basic issue has been skipped in the drafting of Senate Joint Resolu tion 1.

In early America, the contrasting implications of voting by secret ballot and voting viva voce to a call of the roll were not treated lightly. It is not my feeling that these implications have been treated lightly by the sponsors of Senate Joint Resolution 1. Instead, I find nothing in your records that indicates the fundamental issue involved has been treated at all.

The reason for this is understandable. I discovered in writing "Illegitimate Power" that the word "ballot" has changed meaning in the United States in the past 125 years. Few know this. Fewer still appreciate its significance. Yet this simple word is a key that opens the door to understanding values, old and new, in our country's politics.

The fact that "ballot" in the 12th amendment means secret ballot is clearly illustrated by the Legislative Reference Service study I have referred to. A copy of this report is attached hereto as an exhibit.

It is also illustrated by a debate on voting method that took place in the House on January 16 and 17 of 1829. I quoted large sections of this debate, taken from Gale's and Seaton's "Register of Debates in Congress," in "Illegitimate Power." Copies of these book pages are also attached hereto as a supporting exhibit.

In full perspective, this debate treats the issue of representative voting by secret ballot on choices for leadership. The eloquent observations of Representatives Barringer and Bartlett more than support my contentions. I appreciate the opportunity of being able to insert these gems of democratic thought of 1829 in the Senate's reports of 1965.

I bring this to your attention because, in the light of these precedents, I feel a requirement for secret ballot voting legitimately belongs in the Bayh-Celler amendment.

I refer specifically to the majority vote of confirmation required by both the House and the Senate in section 2 of the Senate Joint Resolution 1 draft (pertains to filling the office of Vice President).

The office of the Vice President, and thus the succession to the Presidency, involve considerably different responsibilities and type of precedents than do the many appointments of the President which are subject to congressional confirmation.

I wish to make two practical points. These extend beyond the issue of legitimacy.

The first concerns the political situation that will exist if ever a President dies, and the then elevated Vice President is required to act under section 2. The nomination and confirmation of a new Vice President will immediately be a power issue. Accordingly, it must be analyzed in terms of fundamental power relationships.

Two chapters of "Illegitimate Power" are attached as supporting exhibits in this respect. They state my thoughts on what I have termed the "constitutional doctrine of the secret ballot."

If the Congress should be allowed to vote as it chooses in the confirmation of the newly designated Vice President, the likelihood is that the vote would be taken viva voce to a call of the roll. Twenty percent of either body could require a journalizing of the vote in the absence of a specific voting requirement akin to that of article II or of the 12th amendment.

The continuity that so aided President Johnson's succession to the Presidency, and so stabilized a stunned nation, would be immediately jeopardized. Through viva voce voting the two parties and the subparties within them could deal among their members and enforce bloc voting. The new President would likewise have to deal for the support of his nominee. Partisanship would quickly emerge. Politically inspired coalitions could develop the objective of discrediting the new President. The result could be, not a free vote of conscience and instinctive judgment, but instead a dangerous power deal.

Contrarily, if the Bayh-Celler amendment is revised to call for secret balloting as does the 12th amendment, the influences of the voting method itself would change the political environment in which the vote would be taken. No one could be sure how anyone else was voting. Votes could not be bargained for because delivery could not be checked.

Endorsements and commitments are not here at issue. What the secret ballot does in leadership selection is free the judgment of those in the middle, those who find it hardest to choose.

This leads to my second point. The issue becomes, directly, the qualities the people of the United States seek in the Vice President (the man one heartbeat away from the most encompassing position of power in the free world).

The Constitution is a living document. It has to fit changing conditions. Its traditions and precedents should not be reversed. The Bayh-Celler amendment should not sanction the transactions of the power dealers at the expense of the secret ballot. A Vice President should be a person of superior qualities who wins the votes, freely given, of a majority of the Members of both the House and Senate.

There are other considerations in my suggestion, though they are not as basic as the points above.

They have to do with both our internal or national regard for our democracy, and the representation we give our democracy in the eyes of the rest of the world.

I do not think that the American people want to forego the protections of the secret ballot in the election of a Vice President.

I do not think that the American people want the rest of the world to think of the United States as a democracy where the secret ballot has been downgraded.

I believe the complex task of gaining passage of the Bayh-Celler amendment, both in the House and in the Senate, as well as in the required number of States, will be made easier by inserting a specific requirement of voting by secret ballot in section 2.

Consideration should be given to a like instruction in section 5. However, in this later section which pertains to a conflict between the President and Vice President on the question of the President's disability, it is clear the precedents and issues at stake are far different than those herein discussed.

In conclusion, I wish again to refer you to the remarks of Representatives Barringer and Bartlett of 1829. They present the human nature aspects of what is at issue here, far better than can I.

I appreciate the opportunity of being allowed to present these many thoughts and my specific suggestion to your subcommittee.

Respectfully,

О

LAURENCE G. KRAUS.