[Extensions of Remarks]
[Pages E886-E890]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

RECOGNIZING THE 50TH ANNIVERSARY OF THE DEFEAT OF ABOLISHING THE
ELECTORAL COLLEGE

______

HON. JAMIE RASKIN

of maryland

in the house of representatives

Tuesday, September 29, 2020

Mr. RASKIN. Madam Speaker, in September 1969, Senator Birch Bayh,
Chairman of the Senate Judiciary Subcommittee on Constitutional
Amendments, introduced a constitutional amendment to abolish the
Electoral College. The amendment passed with overwhelming bipartisan
support in the House and with support from President Richard Nixon. But
on this day 50 years ago, the amendment was blocked by a filibuster in
the Senate.
The author of two successful and important constitutional amendments
(the 25th and 26th), Senator Bayh was an eloquent and learned champion
of sweeping institutional reform to make sure that the Constitution
safeguards democratic principles rather than antiquated structures
rooted in an undemocratic past. At this moment of profound
constitutional stress and recurring global and domestic threats to
democratic values and practices, we should remember the Senator's
passionate commitment to building democratic self-government that
serves as an instrument of the common good. Senator Bayh recognized
that, in order to make sure that all votes count in our presidential
elections and all votes count equally, it will be necessary to abolish
the electoral college--or at least transform it through the National
Popular Vote interstate agreement. I was honored to work with Senator
Bayh, who was a great gentleman and patriot, during my time as a State
Senator and he definitely helped us to make Maryland the first state to
pass the National Popular Vote Agreement.
Madam Speaker, I wish to include in the Record a speech by New York
Times Editorial Board Member Jesse Wegman for the annual Birch Bayh
Lecture given at University of Indiana McKinney School of Law in honor
of Senator Bayh's historic efforts towards electoral reform and in
recognition of the melancholy day of defeat of the popular vote in the
Senate on September 29, 1969.

[[Page E887]]

The Birch Bayh Lecture

(By Jesse Wegman)

I'd like to thank everyone for having me today: the
McKinney School of Law community, Dean Bravo, Assistant Dean
MacDougall and, of course, the Bayh family, especially Kitty
Bayh, who has been so generous with her time, her assistance
and her memories over the past few years.
I am honored to give the first Birch Bayh lecture since his
passing in March of last year. And while I'm sad not to be
with you in person, I think it's very appropriate for this
talk to be taking place on September 17, Constitution Day--
the day in 1787 that the framers in Philadelphia signed the
charter they had spent the past four months drawing up,
arguing about, threatening to walk out over--and yet still,
in the end, agreeing to sign and take the next step in this
audacious new experiment in self-government.
It's appropriate because in any conversation about the
nation's founders, we must include the name Birch Bayh. He
shares with James Madison, the father of the Constitution,
the distinction of being the only Americans to have authored
more than one successful amendment to that document. This is
not an easy task. More than 11,000 amendments have been
proposed over the centuries, and only 27 have been adopted.
I will note that when Birch Bayh pushed through his first
amendment, the 25th, he was just 36 years old--the same age
Madison was that summer in Philadelphia.
So, now that we've put Senator Bayh in his proper place in
American history, I'd like to begin by reading you a short
section of my book. (To be fair, this is not included in the
book, although as I'll explain, I really wish it had been.)
The Aero Commander 680, a twin-engine prop, descended
through heavy fog as it approached Barnes Airport, in western
Massachusetts. It was late Friday evening, June 19, 1964. On
board were two junior United States senators, Ted Kennedy of
Massachusetts and Birch Bayh of Indiana, along with Bayh's
first wife, Marvella, and an aide to Kennedy named Ed Moss.
The four were en route from Washington, D.C., to the
Massachusetts Democratic Convention in Springfield, where
Bayh was to give the keynote speech. They had planned to
leave the capital earlier in the afternoon, but were held up
by the Senate's long-delayed vote on the landmark Civil
Rights Act, which finally passed at around 7:40 p.m. (Both
Kennedy and Bayh voted yes.)
By the time the Aero Commander took off, the day's calm
weather had turned. Thunderstorms dotted the route, and the
pilot, Ed Zimny, had to weave his way around the rain and
winds. As the plane descended, it was knocked around like a
pinata. ``It seemed so dark and foggy,'' Marvella told a
reporter a few days later. ``I whispered to my husband,
`Aren't we in trouble?' '' He replied, ``Oh, no, we're doing
fine.''
As soon as they broke beneath the cloudline at 600 feet, it
was clear something was very wrong. Bayh looked out the
window and saw a black line approaching. ``I thought it was
another storm, but it was the tops of trees,'' he said.
They had flown directly into an apple orchard. The plane
skidded along ``like a toboggan,'' as Kennedy put it, until
the left wing snagged on a larger tree, cartwheeling the
aircraft to the left and shearing off parts of both wings.
The plane came to a stop on a hill three miles short of the
runway, its illuminated beacon slowly spinning, its nose
crumpled like a soda can.
``I remember mosquitoes coming in and absolute silence,''
Kennedy recalled. The silence was broken by the sound of
Marvella's voice calling out for her husband, who had managed
to free himself from his seat belt and escape through a
broken window. Bayh's stomach was badly bruised and his right
arm was numb, but with his left arm he dragged Marvella out
through the window and laid her on the grass. He then
returned to the plane and called out, ``Are you all right up
there?'' Kennedy could hear, but he couldn't move or answer.
Bayh headed off to find help, then became aware of the
smell of gasoline. ``The plane might catch on fire,'' he
said, running back. Hearing this, Kennedy found his voice.
``I'm still alive!'' he cried. Bayh reached in and maneuvered
him out through the window, probably saving the 32-year-old's
life.
``It's not the kind of crash you're supposed to walk away
from,'' Bayh told reporters afterward.
Years later, he still couldn't believe what he'd done.
``We've all heard adrenaline stories about how a mother can
lift a car off a trapped infant,'' he said. ``Well, Kennedy
was no small guy, and I was able to lug him out of there like
a sack of corn under my arm.''
After extracting his wife and his fellow lawmaker, Bayh
limped down to the road and tried to flag down a passing car.
Nine drove by before a pickup truck stopped. Ambulances soon
followed, and took the passengers to a nearby hospital.
Zimny, the pilot, was dead on arrival. Kennedy's aide, Ed
Moss, died a few hours later. Kennedy's back was broken in
six places, his lung was collapsed and he had significant
internal bleeding. He would remain in the hospital for six
months, much of it in traction. Birch and Marvella Bayh
were shaken and bruised, but basically unhurt.
Okay, so I thought that was a fun way to start a chapter: a
plane crash! Two US senators! Dragging people to safety!
My editor read it and said, no.
As anyone who's a writer knows, ``No'' is often the most
painful and yet most necessary word you can hear. So
naturally, I pushed back, pleading to keep this story in. My
editor said, Jesse, all the parts of your book need to
contribute to the central argument. This does not do that.
It's not relevant. You know how it would be relevant? If
Birch Bayh crawled out of the smoking wreckage and said, by
God, I have to abolish the Electoral College!
It was hard to accept, but he was right. All stories need
to be streamlined, to be directed so the listeners can follow
along. In that regard, editors are essential. They help you
find that central thread and follow it, always focusing on
what's important.
The problem for Birch Bayh was that everything was
important. For him, all the parts *did* contribute to the
central argument.
Imagine an editor confronting this: The youngest Speaker in
Indiana history; the author of two constitutional amendments;
the Senate sponsor of the Equal Rights Amendment; the author
of Title IX; the Bayh-Dole Act; and on and on and on.
And on top of that, he literally walked away from a plane
crash? I mean, come on. He pulled his wife out of the burning
wreckage. He pulled out Ted Kennedy. He saved lives.
An editor would say, stop! Hold up! No one will be able to
follow all this. Cut.
Birch Bayh didn't cut. He just kept adding. His life filled
with a spirit of democracy and inclusion, a commitment to a
better, fairer, more just, more humane, more equal America.
So while I'm a firm believer in strong editing, I'm grateful
Birch Bayh didn't have an editor.
And I keep coming back to that night in June 1964.
The accident made the front page of the next morning's New
York Times, right next to the lead report on the Senate's
passage of the civil-rights bill. The headline read:
``Senator Kennedy Hurt In Air Crash; Bayh Injured, Too.''
Of course Kennedy got top billing. He was the brother of a
fallen president and a rising member of the nation's most
prominent political dynasty. Bayh, despite his late-night
heroics, was unknown to most Americans. At 36, he was not yet
two years into his first term as senator. Had he died that
night, like most people do when their airplane crashes, he
would have been remembered as a genial, progressive Indiana
politician who got along well with his colleagues. But he
didn't die. And the fluke of his survival turned out to be
one of those moments on which history pivots. Over the decade
following the crash, Bayh would find himself at the center of
the nation's biggest constitutional debates, and in the
process he became one of the most influential lawmakers in
American history.
As I said, Birch Bayh holds a rare distinction: he is the
only American other than James Madison to have spearheaded
multiple successful amendments to the Constitution. He has
two under his belt so far: the 25th, adopted in 1967 to lay
down clear rules for replacing a president or vice president
who dies, resigns or becomes unable to govern; and the 26th,
adopted in 1971 to lower the voting age to 18 from 21. He may
yet to claim credit for a third--the Equal Protection
Amendment, which would prohibit discrimination on the basis
of sex, and for which Bayh was the lead Senate sponsor. With
his help, the ERA passed Congress in 1972. Last year it got
its 38th state ratification--enough (in theory, at least) for
it to become the 28th Amendment.
Bayh's almost unequalled record of constitutional reform
speaks for itself, but the amendment that would have had the
most profound effect on the structure of American government
and society was the one he failed to pass--the one that got
away, as his staffers called it.
Between 1966 and 1970, the young Indiana senator led a
vigorous, high-profile campaign to abolish the Electoral
College and elect the president by direct popular vote--a
goal he came closer to achieving than anyone since the 1787
convention in Philadelphia.
Back then, it was a Pennsylvania delegate named James
Wilson, the most respected lawyer in the country, who pushed
throughout the summer for a direct vote. Like Wilson, Senator
Bayh fought hard and came up short. Like Wilson, he was
blocked by southern politicians intent on protecting their
outsized power, which they had seized and maintained through
two centuries of systematic racial violence and subjugation.
Unlike Wilson, however, Senator Bayh didn't start out as a
believer in the popular vote. He favored modest tweaks to the
Electoral College, not a complete overhaul. Then he learned
more about the College's historical unfairness and the harms
it continued to inflict on American politics. Within months,
he became a convert to the cause of a direct presidential
election. And but for a handful of Senate votes one late
September afternoon in 1970, he may well have converted the
nation.
Did you know about any of this? I didn't. Nor did most of
the people I've asked over the last few years, many of whom
were politically active adults in the late 1960s. What
explains this mass amnesia? An effort like Bayh's on an issue
like the Electoral College should be burned into America's
history books. But like Wilson's valiant but unsuccessful
push for a popular vote in Philadelphia, Bayh's has almost
completely disappeared down the public memory hole. I'd like
to pull it back up and see what it can teach us.

[[Page E888]]

I've spoken about Birch Bayh's astonishing record of
accomplishment. But as someone who grew up following Boston
sports in the 1970s and 1980s, I have always been less
attuned to the successes than to the failures, to the near
misses.
So in this talk I want to focus on the one that got away:
The Electoral College amendment.
Obviously this matters to me because I wrote a book about
it. But, if I may, I also feel a sort of kinship with Senator
Bayh. He did not begin as a radical constitutional reformer.
After several years, however, he found himself where
virtually everyone who spends that much time studying the
electoral College does: as an unabashed advocate for a
popular vote.
In following his journey of discovery into the way we
choose our president, I found myself on a similar track: one
of skepticism that transformed into full-on belief.
I will start in the early 1960s, with Birch Bayh as a
first-year senator from Indiana looking to make a name for
himself in the world's greatest deliberative body. I'm going
to tell a shorter version of the story that's in Chapter 5 of
my book:
Despite its important-sounding name, the Senate Judiciary
Committee's Subcommittee on Constitutional Amendments was a
sleepy affair in 1963.
In theory it had a significant role to play--drafting
amendments to the Constitution and introducing them into
Congress to be voted on--but in practice the subcommittee had
done little of note since the days of Prohibition. When its
longtime chair, Estes Kefauver, died of a heart attack that
August, no one immediately stepped up to take his place. The
job wasn't that appealing.
``It was a graveyard,'' Bayh recalled years later. ``How
often do you amend the Constitution, for heaven's sakes?''
(For the record: 27 times, the first 10 of which, known
collectively as the Bill of Rights, were adopted almost
before the original Constitution's ink was dry. Since then,
we've ratified a new amendment on average once every 13
years.)
Bayh also knew that sitting on a committee was the best way
for a young senator to gain power and influence. By the
middle of 1963, only a few months after getting elected to
the Senate for the first time, Bayh had maneuvered his way
onto the Judiciary Committee. It was a prestigious post that
involved interviewing Supreme Court nominees, among many
other high-profile responsibilities. The problem for Bayh was
that he didn't want to be just a member of a gang; he wanted
to lead one, and all the Judiciary's subcommittee
chairmanships were spoken for. Then Estes Kefauver died.
Bayh didn't volunteer to take over Kefauver's seat at
first, because it wasn't being offered. James Eastland, the
Judiciary Committee chairman, had begun the process of
shuttering the subcommittee entirely. By chance, Kefauver's
former chief of staff knew of Bayh's ambitions and suggested
that he go to Eastland in person and make the case for saving
it. In a 2009 interview, Bayh remembered his first meeting
with Eastland, a staunch segregationist from Mississippi:

So I got an appointment and saw Senator Eastland. He got a
little scotch and ice. I didn't really drink at the time, but
I may have taken a sip or two of it. And I made my pitch:
``Mr. Chairman, when I went to law school, constitutional law
was my most exciting subject. Boy, it would be my dream come
true if I could be Chairman of that Subcommittee.''
He said, ``Well, Birch, I hope you understand here, but
Allen Ellender [a conservative senator from Louisiana] has
been giving us a rough time. I sort of told him I'd close
this down. I hope you understand, boy.''
I said, ``Mr. Chairman, I'd even put one of my own staff
people there. It wouldn't cost you a nickel.''
``I just made up my mind, Birch. I hope you understand.''
``Thank you, Mr. Chairman,'' and I left.
The next morning, 9:00, my secretary said, ``You've got
Chairman Eastland on the phone.''
``Birch?''
``Yes, Mr. Chairman.''
``I want you to be Chairman of that Subcommittee. I think
you'd be a good one.''
Click.
Whenever else could a plantation owner, one step away from
being a slave master, an avowed segregationist, ever do
anything to get a little chit with a liberal young turk like
me?

If Bayh had any pretensions about the new job, they were
snuffed out fast. Eastland, who had apparently taken Bayh's
won't-cost-a-nickel promise literally, parked the
subcommittee and its small staff in a converted men's room on
the third floor of the Capitol building. Jay Berman, an aide
and later the senator's chief of staff, described it to me.
``It had no windows and it was very small. No claustrophobic
could've worked there.''
On the plus side, the toilets had been removed.
In politics as in life, everything can change in an
instant. Bayh was officially named chair on September 30.
Fifty-three days later, President John F. Kennedy was
assassinated. And just like that, a graveyard job run out of
a bathroom was about to become one of the most important in
the country.
Bayh was faced with a suddenly urgent challenge: what to do
if a president becomes incapacitated while in office?
Previous presidents had informal arrangements in place to
deal with such a scenario, but the Constitution itself
provided no next steps. It said only that if a president
can't serve, the vice president takes over, and any further
details can be hammered out by Congress.
The nation was still absorbing the shock of Kennedy's death
when Bayh got to work. On December 12, he introduced a
resolution to amend the Constitution by adding clear rules
for presidential and vice presidential succession in cases of
emergency.
Under Bayh's guidance, the bill passed both houses of
Congress and went out to the states for ratification. The
Twenty-Fifth Amendment went into effect a little more than
three years after Bayh first introduced it. It was a
remarkable accomplishment for a junior senator who, in the
words of a 1970 New York Times profile, ``had flunked his bar
exam the first time and had practiced law only a couple of
months before coming to Washington.''
Bayh's success on the Twenty-Fifth Amendment transformed
him into a respected lawmaker whose opinions mattered,
particularly when it came to the Constitution.
That's why President Lyndon Johnson turned to him for his
next big project: amending the Electoral College.
There have been, since the nation's founding, roughly 800
attempts to amend or abolish the Electoral College. With the
exception of one--the 12th Amendment--all have failed. So
what was Lyndon Johnson trying to do?
He was trying to save the Democratic party from insurgent
southerners who were peeling off as the party turned against
segregation and toward civil rights. Longtime Democrats like
Strom Thurmond in South Carolina were not fans of racial
equality, and they were running third-party campaigns to try
to undercut the national party.
Across the south, they urged electors to be ``faithless''--
that is, to break their pledges to vote for the Democratic
nominee in favor of third-party segregationist candidates
like Harry Byrd. This alarmed the leadership of both major
parties, and especially President Johnson, whose support
depended on southern Democrats. So he asked Birch Bayh to
take the lead on drafting an amendment that would eliminate
the risk of faithless electors.
Senator Bayh took up the challenge. In February 1966, he
held the subcommittee's first hearing on amending the
Electoral College.
Right out of the gate, he shot down any prospect of
abolition. ``Putting it optimistically,'' he said in his
opening remarks, the chances of Congress passing a popular-
vote amendment were ``extremely slim, if not hopeless.''
And yet, a few months later, after questioning multiple
witnesses, reading thousands of pages of archival and
statistical documents, Senator Bayh realized he had been
wrong. He was aiming too low, getting trapped in the details
of endless debates about ratios and percentages. He was
missing the bigger picture.
Bayh had come to see, as he would later quote from the
historian John Roche, that the College was ``merely a jerry-
rigged improvisation which has subsequently been endowed with
a high theoretical content.''
On top of that, the nation in the early 1960s was in the
midst of a democratic awakening. From the civil rights
movement to the one-person-one-vote cases at the Supreme
Court, from the abolition of the poll tax to the Voting
Rights Act, America's long history of racial
discrimination and exclusion from the ballot box was being
challenged like never before. Birch Bayh wasn't just
sensitive to all of this, he was energized by it. And when
he looked at that bigger picture, the problems with the
Electoral College seemed much more serious.
Jay Berman, Bayh's staffer, recalled to me the feeling that
emerged after months of hearings. ``All of a sudden, you're
in the weeds and people are saying, `You're amending the
Constitution for this?' Look, we have fundamental issues
here. We've expended so much time and effort to expand the
franchise. You've been involved in all these civil rights
bills. What are the consequences for the present system if
the person with the most votes doesn't win? What was all this
about if it doesn't mean that every vote should count?''
On May 18, after months of hearings and expert witnesses
and statistical reports, Birch Bayh stood up on the floor of
the Senate and gave what I consider one of the strongest and
most eloquent arguments for the popular vote in the nation's
history. I will quote from it at length, because his words
are full of hope and inspiration, and they deserve being
repeated.

Mr. President, from the inception of our nation,
controversy and complexity has surrounded the question of how
to choose the President of the United States.
Indeed, one of the framers of the Constitution, James
Wilson, described this problem as ``the most difficult of
all'' to resolve at the Convention. . . .
Bayh acknowledged the hundreds of failed efforts to fix the
system, then he said,
Today, Mr. President, the situation is different. Today,
for the first time in our history, we have achieved the goal
of universal suffrage regardless of race, religion or station
in life . . . .
Today, the next logical outgrowth of the persistent and
inevitable movement toward the democratic ideal is the
popular election

[[Page E889]]

of our national officers--an election in which each person
has the right to vote for President without an artificial
barrier separating him from the choice of his Chief
Executive.
. . .

Bayh then noted that the subcommittee had considered many
different amendment proposals, before rejecting them all.

It may well be that mere procedural changes in the present
system would be like shifting around the parts of a creaky
and dangerous automobile engine, making it no less creaky and
no less dangerous. What we may need is a new engine, Mr.
President, because we are in a new age.
. . . Some may say this proposal is too new, too radical a
break with tradition. In all honesty, Mr. President, I was
among that number only a few short months ago. Then, we began
hearings on the problem. I consulted with scholars in the
field. I did a great deal of study and reflection. I came to
the conclusion that this idea was not truly a break with
tradition at all. It was, in fact, a logical, realistic and
proper continuation of this nation's tradition and history--a
tradition of continuous expansion of the franchise and
equality in voting.

He ran through the list: ending property qualifications and
giving the vote to poorer white people; the abolition of
slavery and the enfranchisement of blacks . . . of women, of
Jews and Catholics . . .

Today, we have witnessed the climax of the long struggle to
guarantee Negroes the right to exercise the franchise--the
14th, 15th and 24th Amendments; the Civil Rights Acts of
1957, 1960 and 1964, and the Voting Rights Act of 1965.
In fact, we have only one election remaining, Mr.
President, wherein some votes are not equal to others and
wherein millions of votes do not count in the final result--
and that is in the election of the most powerful political
officer in the world, the President of the United States.
It is not radical to suggest that we abolish the Electoral
College and elect our President by direct popular vote--no
more so than if we suggested the advantages of grounding an
open-cockpit biplane in favor of a supersonic jet.
Direct election of the President would make that office
truly national. We elect our local official locally; our
Congressmen by districts to protect district interests; our
Governors and Senators statewide. Why should we not elect the
President and Vice President nationally? The President has no
authority over state government. He cannot veto a bill
enacted by a state legislature. Why then should he be elected
by state-chosen electors? He should be elected directly by
the people, for it is the people of the United States to whom
he is responsible.
Direct election would greatly encourage voter
participation. Today, if a state votes traditionally in the
column of one party, voters of the other party correctly
assume that their vote will count for naught. Under direct
election, these votes will be as important as votes cast
anywhere else.
In sum, direct popular election brings with it many virtues
and no vices; it would substitute clarity for confusion,
decisiveness for danger, popular choice for political chance.

Bayh finished with what we would today call the ``mic
drop'':

James Madison, the father of our Constitution, knew that
the President had to be independent of the Congress. He knew,
also, that in deciding upon a means of choosing a President
some compromise would be reached. But he had his own ideas as
to how the President would best be elected.
Madison said that ``the people at large . . . was the
fittest in itself.''
We are at long last arriving at the place and time in our
history where meaning has been brought to the preamble of our
Constitution--``We, the People of the United States . . .''
Today we are, indeed, ``We, the People . . .''
If there was doubt about it in the early years of the
Republic, there can be no doubt today. Let us echo Madison.
Let us put our trust in the people.

This was the key. More than any political or partisan
advantage, Senator Bayh wanted what was best for the American
people.
And he people, as it turned out, felt the same way.
On the same day as Bayh's speech, Gallup's first-ever
national poll on a direct vote for president found that
sixty-three percent of Americans said they favored dumping
the Electoral College for a popular vote. Twenty percent
opposed it, and 17 percent had no opinion.
Soon the movement had support from across the political
spectrum--from the Chamber of Commerce to the League of Women
Voters, from organized labor to the American Bar Association.
In a report that would later be quoted in the New York Times,
the ABA called the Electoral College ``archaic, undemocratic,
complex, ambiguous, indirect, and dangerous.''
The range and depth of support for a popular vote gave Bayh
the confidence that he was on the right track. Still, he
moved cautiously. As the 1968 presidential race heated up, he
pulled back on the popular vote campaign. Merits aside, any
debate over how America might choose its president in the
future would surely get tangled up in the politics of how
America was choosing its president in 1968.
What Bayh couldn't know was how much that year's election--
and the collective heart attack it gave the nation--would
help his cause.
The 1968 election was primarily between Richard Nixon and
Hubert Humphrey. But it was a third-party candidate--George
Wallace, the former Alabama governor and arch-
segregationist--who nearly managed to deadlock the vote and
force Congress to pick the winner. Wallace won the most votes
throughout the deep South, and earned 46 electoral votes, the
last time any third-party candidate has won any at all. His
aim was not to win the election outright, but to prevent
either Nixon or Humphrey from winning a majority of Electoral
College votes. In that scenario, the Constitution orders the
House of Representatives to choose the president, with each
state getting a single vote. Wallace thought that if both
candidates needed him to help push them over the top, he
could make whatever demands he wanted.
Wallace failed in the end. Nixon won a majority of
electors. But he succeeded in highlighting just how bizarre
and dangerous the Electoral College could be. It was the
first time millions of Americans had given the system a
thought. The prospect of an unreconstructed racist extorting
the presidency horrified them. The best-selling author James
Michener wrote a whole book advocating a switch to the
popular vote. He called the Electoral College a ``time bomb
lodged near the heart of the nation.''
Meanwhile, Birch Bayh was riding the wave of the 1968
election, gathering support across the country for a major
constitutional reform. By the end of that year, polls showed
more than 80 percent of Americans in favor of a national
popular vote for president.
In September 1969, the House voted overwhelmingly to
abolish the Electoral College and replace it with a direct
popular vote. It was a bipartisan effort. Even President
Nixon got on board, and polls of state legislatures suggested
strong support throughout the country. All signs pointed to
another successful amendment for Mr. Bayh and a radical
change in the way Americans chose their presidents.
All signs but one.
As soon as the amendment reached the Senate, it was blocked
by Southern segregationists, led by Strom Thurmond of South
Carolina, who were well aware that the Electoral College had
been created to appease the slaveholding states. They were
also aware that it continued to warp the nation's politics in
their favor, since millions of black voters throughout the
South were effectively disenfranchised by restrictive
registration and voting laws. Even those who were able to
vote rarely saw their preferences reflected by a single
elector. A popular vote would make their voices equal and
their votes matter--and would encourage them to turn out at
higher rates.
The Southerners delayed and filibustered the amendment for
months. On Sept. 29, 1970--50 years ago this month--the last
attempt to end the filibuster failed by five votes. It was
another echo of the way the Electoral College had been
preserved for the benefit of white political power,
particularly in the south.
Now here's the really interesting part. The segregationists
had help from a key constituency: blacks and ethnic
minorities in northern cities like New York City and Chicago.
Why? Because at the time, New York was the nation's biggest
and most important swing state. And racial and ethnic
minorities in the big cities decided how it swung. These
voters understood that the Electoral College, using statewide
winner-take-all laws, gave them disproportionate power in
choosing the president. They didn't want to give up that
power any more than the southerners did.
Strom Thurmond took advantage of this fact. He sent
personal telegrams to prominent black and Jewish leaders,
warning them of the consequences of supporting a direct
popular vote. This made Birch Bayh furious. Here's what he
said in a 2009 interview:

He told these groups, ``What you're going to do is, you're
going to give up your advantage to have influence to sway
these large electoral votes if you have a direct popular
vote. It will just be confined to one person, one vote. You
won't be able to sway that whole group of electors,'' which
is true, of course.
A couple of these guys . . . came to my office and said,
``You're going to have to back away from this.''
I said, ``What do you mean?''
They said, ``Well, it would give us less power.''
I finally said--the only time while I was there, in my
eighteen years--I said, ``Look, I busted my tail to see that
each of you and your constituencies got one person, one vote.
Now you're telling me that if you have 1.01, you want to keep
it? Get your rear ends out of my office and don't come
back.''

Senator Bayh reintroduced his Electoral College amendment
in every session of Congress through the 1970s, until he lost
re-election in 1980.
With Bayh's departure, the Senate lost its best advocate
for a national popular vote. ``No one was a better legislator
than he was and he couldn't get it done,'' Jay Berman told
me. ``It's just such an empty feeling because it was so right
to do. And we couldn't do it.''
For the final portion of this talk, I'd like jump forward a
half century, to today. The 21st century is barely two
decades old, and yet it has already been defined by the
Electoral College's anti-majoritarian distortions.

[[Page E890]]

It happened first on Nov. 7, 2000, when Vice President Al
Gore was the choice of the American people, with more than
half a million more votes around the country than George W.
Bush. But Bush won the White House thanks to a few hundred
ballots in Florida, and a recount stopped short by the
Supreme Court.
It happened again in 2016. Two times in less than two
decades. And there's a very plausible chance it could happen
again in November.
If Senator Bayh were here, I know he would say this is a
crisis for our democracy. It is a crisis for our republic.
In fact I don't have to speculate. He stayed deeply
involved in the politics of electoral reform after leaving
the Senate. In 2005, a team of lawyers and activists devised
a plan to elect the president by a national popular vote, not
by abolishing the Electoral College but by using it exactly
as it was designed in the Constitution. They came to
Washington to test the political waters, to see whether they
could get support for this plan. The first person they spoke
to was Birch Bayh.
I was lucky enough to meet the senator--two years ago this
week, at his home on the eastern shore of Maryland. It was
the last interview he gave before his death. We were joined
by his wonderful wife, Kitty, and Kevin Feely, one of his
longtime Senate staffers.
When I asked him about his early life, he recalled a
childhood spent working on his grandparents' farm in Terre
Haute. ``Nobody in my family background had ever been
involved in politics,'' he said. ``When my father found out
what I was doing, I think he wondered what he'd done wrong as
a parent.''
On the topic of the popular-vote amendment, the pain of the
loss was still there. If anything, it was keener, now that
the Electoral College has awarded the White House to two
popular-vote losers in the past two decades.
``I don't know,'' he told me when I asked how he thought of
the issue today. ``I like to think as a country, as we grow
older, we learn. It just makes such good sense.''
I asked about the familiar charge that eliminating the
Electoral College would lead to ``mob rule.'' He was
nonplussed. As he saw it, the ``mob'' was the American
people. He said, ``That, to me, is the positive end of it.
Why shouldn't they be able to determine their own destiny?''
This was emblematic of Bayh's broader commitment to
fairness, equality and inclusion. Birch Bayh's America is a
big, open, welcoming place. It has room for everyone, and it
treats all of us as equals.
I think it's fair to say that Birch Bayh was one of this
nation's founding fathers. He changed the country for the
better, and he would have done even more if he could. The
fact that he didn't succeed in changing how we choose our
President . . . well, Madison didn't get everything he wanted
either. But the seeds have been planted.
Speaking of seeds, I found a short article about Senator
Bayh in a Reader's Digest from November 1948. It was titled
``GI Ambassador.''
Of course, we know that the senator was raised in a farming
family, and had a knack for the work. When he was a teenager,
he won $200 for the best teenaged tomato patch in the state.
So, when he joined the army and learned he was being shipped
overseas to help with the recovery effort, what's the first
thing he did?
He ordered seeds. ``Please send at once $4 worth of
vegetable garden seeds,'' he wrote to the county agent in
Terre Haute. ``Be sure to put in some sweet corn.''
He got 18 packets in the mail. But when he showed up for
inspection, he nearly lost them all. ``Regulations state that
you can take only military equipment and personal
belongings,'' his sergeant said. ``But vegetable seeds--get
rid of 'em!''
So he broke open each packet and emptied its contents into
a different pocket on his uniform. When he arrived in the
small German village where he was stationed, he slowly
redistributed the seeds into their 18 packets. ``It was quite
a job,'' he said. ``But I did want a garden.''
He helped build 45 garden plots and got 2 village children
to tend each plot. By the end of the growing season, they'd
produced mountains of cabbage, beans, spinach, turnips,
tomatoes, cucumbers, beets, lettuce, kale, chard . . . and
sweet corn. The village was fed all winter.
In an interview years later, he said, ``The thing I love
about agriculture is that it's pretty hard to get away from
the facts. There it is. Mother Nature takes care of it. If
you do something wrong, you pay.''
Birch Bayh was a farmer of democracy. He planted the seeds
of a more equal and more just America. He helped us cultivate
a national debate by connecting our modern lives to the
fundamental principle of universal human equality embedded in
the Declaration of Independence.
This was not a dry intellectual exercise for him. Bayh's
conviction was profound, and his inability to achieve a
national popular vote pained him deeply for the rest of his
life. It was, he would say, the single greatest
disappointment of his career.
As an example, in the fall of 2000, John Feerick, the
former dean of Fordham Law School and an instrumental figure
in the passage of the 25th Amendment, was teaching a seminar
at Georgetown Law School, and invited Senator Bayh as a guest
speaker.
Bayh visited the class in October. In a few weeks, the
nation would be upended with the drama and chaos of a
contested election--the recount in Florida, the butterfly
ballot, the hanging chads, the Brooks Brothers riot. . . and
finally, a tense resolution by the Supreme Court, giving
George W. Bush a bare Electoral College majority, and sending
the first popular-vote loser to the White House in more than
a century.
All of that was in the future when Feerick, sitting next to
Bayh in his law-school seminar, posed what seemed at the time
like an innocent hypothetical.
``I put the question to him,'' Feerick said, `` `What do
you think the reaction of the American people will be if
there's a difference between the electoral vote and the
popular vote winner?' ''
``And his response to me was that the people would accept
the legal system we have, and the outcome of that system. The
one we have. And then he started to cry.''
I want to return a final time to the words Birch Bayh spoke
on the Senate floor in 1966. A national popular vote is ``a
logical, realistic and proper continuation of this nation's
tradition and history--a tradition of continuous expansion of
the franchise and equality in voting.''
That is the essence. In my book I write, ``Maybe this is
the real American exceptionalism: our nation was conceived
out of the audacious, world-changing idea of universal human
equality. And though it was born in a snarl of prejudice,
mistrust, and exclusion, it harbored in its DNA the code to
express more faithfully the true meaning of its founding
principles. Over multiple generations, and thanks to the
tireless work and bloody sacrifices of millions of
Americans--some powerful but most just regular people who
wanted to be treated the same as everyone else--that code has
been unlocked, and those principles, slowly but surely, have
found expression.''
I believe a central reason Birch Bayh's effort in the late
1960s came so close was that this was his argument. It was
irrefutable, and it resonated with millions of Americans.
Now here we are, 50 years later, facing the same questions
he faced, fighting the same battles he fought, and relying
all along on his wisdom, his vision and his humanity to help
us find our way to an answer--and to a more perfect Union.

____________________