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Birch Bayh

Birch Bayh, a Democrat, was a U.S. senator from Indiana from 1962 through 1980. During that time, he authored two constitutional amendments: the 25th Amendment, which established the rules for presidential succession and disability, and the 26th Amendment, which lowered the minimum voting age to 18. He was a candidate for his party’s presidential nomination in 1976.  Bayh is now a partner at Venable LLP, a Washington-based law firm, and is a member of the advisory board of National Popular Vote, a non-profit that advocates the popular election of the president. His son, Evan Bayh, now holds the same U.S. Senate seat that he once held.

Jules Witcover interviewed Bayh on March 27, 2007.

I wonder if you [could] just talk a little bit about what appears to be the passing of the federal subsidy system, with all of these candidates opting out and raising all the money they can get their hands on.

Well, we are perilously close, if we haven’t already passed the point where our government is up for sale. And that’s the case irrespective of which party or which candidate, I think, [we’re talking about]. But having gone through that myself a couple of times, in which money was important . . .

Talking about this subsidy system, it seems to be going through the floor now. And that system may not work anymore, although I talked to one candidate the other day — Dennis Kucinich — who says he is going to stay in no matter what. He figures he can, with his special constituency, limp along.

What is his special constituency, anyhow?

The war: He used that to stay alive in 2004. And he’s going to use it again. He doesn’t have exclusive hold on it right now, anymore. But he did pretty much then. He’s one of the few people who say that [they] can survive on with all of these other people getting the multimillion-dollar treasure chests. I guess the question is, is there any way that you can think of to enable these candidates whom we now call second- and third-tier candidates — mainly because they are not really celebrities or don’t have a lot of money to stay in the race?

Not unless they have a special constituency. It’s not a sole-possession issue. But if he has people who have put together and can remember where he was in ’04, they will undoubtedly be with him now. And he has better ideas for that than I.

Well, he talks now about raising $50 million. That’s a hell of a lot of money. But it still may not be enough to compete with Hillary Clinton and some of the others.

Well, is he going to be able to take advantage of the federal funding and raise $50 million?

Sure, if he raises enough to match that. But that’s a lot. I think he’s saying $50 million total, with what he gets from [federal funding]. . . . The candidates in the general election will get $83 million. I think a couple of the Democrats are saying that they may not take it in the general election either, that the whole thing will be privately financed. And so you are talking about well over $100 million for any one candidate. And some of them are saying, Well, the whole thing will cost a billion dollars this time around, including the general-election candidates raising their own money. I take it you don’t see much hope for improving that picture.

Well, in a way it’s sort of like feeling the difficulty of trying to get a constitutional amendment ratified. The time was ripe when we had it because we had the near-miss with [Presidents] Carter and Ford. And yet Carter had won. And so it was fresh in everybody’s memories. And my thoughts were, if somebody is elected under the system, they are never going to change it. And so we have George W. now. But the relevance of this is anybody who is elected under the present funding system is going to be hard-pressed to change it because they had the formula to elect them and keep the competition down.

There is no incumbent running this time.

That’s right.

The first time since before Eisenhower.

No, I was thinking about the funding process. Whoever can win under the present funding mechanism is going to be hard-pressed to say if you are going to change it so they can make it easier for somebody to run against them.

What about this frontloading problem? What’s your feeling about that and whether that can be reversed or changed, frontloading in the primaries?

We’re close to a national primary, aren’t we? I don’t know how it’s going to be. We are basically going to be having a primary for nearly two years before the general election. Of course, the question is how we know that the electors aren’t bound in the Electoral College. But are delegates bound under law? I don’t remember that. In other words, if circumstances change . . .

It depends on the party. And I think it may also depend on the state. I remember in 1980 when Ted Kennedy ran. They had a fight at the convention to try to allow delegates to go against their commitment. And I don’t know whether that failed or passed, but that was a big issue in that year.

I had forgotten about that. I should remember, because I was running.

But I think the political scientists and idealists always talk about how do you get the nomination back into the convention so it’s made at the convention? How do you contrive to have this schedule so that no candidate is able to accumulate enough delegates until later in the season? Now New York has moved up along with California and some other states in February. It won’t be any problem for one candidate to go over the top in February, unless by a real strange situation where three or four candidates are strong enough that they split some of these primary states. But there hasn’t been a history of that happening.

Well, we have got a situation, I know. How can we guess what’s going to be happening a year from now? But if one would take the present players of Hillary, and Obama, and I guess Richardson, who would be a player — I think Edwards is a more realistic player, particularly the kind of credentials he’s going to have in Iowa — it’s so frontloaded, you don’t have . . .

You don’t have enough time to build on it.

Yeah. Win in either Iowa or New Hampshire. You have everybody committed to go other ways in the larger states. My concern about that [is that] one of the things they say about direct election is it could lead to proliferation of parties. If you look at what happened in [2000], the minority party elected a president. The 90,000 votes that Nader got in Florida, despite the fact that there were 6 million who had cast, that was the one responsible for taking enough votes that there was what, 547 or something like that, more for Bush. Of course, I think they stole it; they wouldn’t let a recount.

But if there was some way to reverse what’s happening now and have the small states go first, say every month five or six states through the spring, and you add New York, California, and the other big states last, there wouldn’t be enough votes in the pot to make a majority. But it seems to be that just psychologically, if somebody does well in Iowa and New Hampshire, it creates a mental situation among voters that it’s all over. So, I mean, it may well be that Iowa and New Hampshire could be more important than they have in the past.

Unless it’s a sleeper candidate like Edwards. I think that there is a real possibility that Edwards is going to be stronger than people give him credit for. Because I know Evan [Bayh], one of the reasons he stopped running was because he was counting on Iowa and the polls they took show that 80 percent of the delegates in the last caucuses felt positively about Edwards. Whether that was raised in such a way they would be committed to them, I don’t know.

But you know, in ’76 with Carter, [he] actually finished second in the caucuses to “none of the above” or “no choice.” He had five weeks; we forget that. He had five weeks to capitalize on that until New Hampshire. Now there are eight days between Iowa and New Hampshire. And then there are about two weeks between New Hampshire and this bunch of other candidates.

When does Nevada — is that a caucus?

That’s a caucus. And so obviously that comes after Iowa and New Hampshire. I don’t think it comes in between. But I think it comes right after that. And then South Carolina comes in there as well. It’s a primary. It would be after New Hampshire. Iowa and New Hampshire have this deal between the two of them that they are not going to let anybody have a caucus before Iowa or a primary before New Hampshire.

Well, let’s talk a little bit about some of the things that you have been involved in, like the Electoral College. Have you been pecking away at that? Is there any [movement], in light of what happened in 2000?

The reason I was wanting to interrupt, I have been spending a lot of time the last three weeks in Annapolis. And I was over there yesterday. And the [Maryland] Senate passed it to second reading, which basically is where all the action is in Maryland. And we passed it by 31, then 14, and then there were a couple of amendments that were tried today and they were voted down by even a larger margin. And it will get third reading tomorrow, and thus it will pass the Senate.

I think the Ways and Means chairman is going to pass it out of the Ways and Means Committee tomorrow. And I think she has a working relationship with the speaker. They are either going to go forward with their own bill, or more likely take the Senate bill and run with it, because they are identical. So we have an excellent chance that, I guess, I want to say the first Monday after Easter is when the Maryland legislature ends.

Is this a flat abolition of the Electoral College? Is that what it is?

No. It’s coming in the back door. You want the whole nine yards here?

Sure, sure.

The Constitution, which is sacrosanct in people’s minds about the Electoral College and the unit rule, doesn’t mention the unit rule. In fact, you recall the Electoral College provided that electors would cast their vote and who came in first would be president, who came in second would be vice president. And that worked until Jefferson came up with a different rule. And he and Aaron Burr had the same thing. So they had to come back with the 12th Amendment to the Constitution.

What the Constitution basically says [is that] this Electoral College was created at a time when the South got to count slaves as three-fifths of a vote. So that went out with the 15th Amendment. And the whole deal was how to keep the South in the structure. They were concerned about the big, larger states, one of which was Virginia at the time. With their manufacturing base, [Virginia] would have all the power if you went strictly by popular vote in the Congress, where that decision was made. And they decided they’d parcel it out with the smaller states and the Southern states at the time, an Electoral College advantage.

So if you read what [Senator] Gouverneur Morris and some others who have spoken, all we have is Madison’s notes of what he did. And he was for popular vote. And, in fact, the Electoral College was nobody’s first choice. In fact, it was only an agreement made in the dark of night at the end as how [to] solve this problem. And Morris said it was the most difficult decision they made. It was also the last decision they made. They had done everything else; the president was the last thing.

What they said in the Constitution about the choice of electors is that — it’s Article Two, Section One — it’s a very key word saying that basically the choice of electors shall be determined only by the legislature of the respective states in regard to the electors thereof. They should determine how they are selected. And so right now, we have in Nebraska and Maine, they are selected by congressional districts. Colorado tried a while back, I guess a couple of elections ago, to get the Colorado law changed to get — by referendum they tried it — on a proportionate basis. And that was defeated.

I don’t think that’s a good idea, because if you do it on a proportionate basis, then the small states do have a built-in advantage. Now it’s a tradeoff between the small state advantage and the large states, which is where the action is. Eleven states could elect a president by a handful of votes, or one of the large states now, like Florida. But anyhow, so we are taking that provision.

And we are taking another provision, which as you know, states may enter into interstate compacts. And the law in Maryland will take advantage of this choice and decision in order that their electors will be cast for the person who carries the most popular votes, regardless of what happens in Maryland. That will also make them the initial signers of an interstate compact, in which other states will ask their legislatures to [have] their elector chosen the same way. California passed it last year. And it was vetoed by [Governor Arnold] Schwarzenegger. He made that decision, really, without consulting with anybody who knows about it. They have got some other folks out there close to him now who think he would change his mind and that California would be a signatory to this.

So the idea of this is to kind of an end run to change the constitutional amendment process? Is that right?

By using the Constitution itself. And I thought it was rather tortuous, but the thing about it is that it is using the Constitution to solve a problem, which I perceive to be there. And it does not take effect until enough states have signed on to the interstate compact that 270 electors are represented. So you have a majority of the Electoral College pledging to make the president the person who gets the most popular votes. So basically it would be a winner under either scheme. Obviously, when we get to 270, by then it’s going to have such a head of steam I think most of the other states will want to get on the wagon before it leaves, like the train before it leaves the station.

What would it take to stop that? The small states wouldn’t have enough power to stop that?

No.

Because you could build a 270 by getting a lot of big states.

Yes. What’s happened in Maryland is that it’s basically a party-line measure. I don’t know what the final vote is, but we may have one or two senators. But the rhetoric, the speeches of the leadership in the Senate that I heard yesterday, the Republican leader, the minority leader, [were] just very negative about the whole process.

Well, why would it be a party-line thing? Because Republicans feel that they are not strong enough in the big urban states?

That’s what they believe. And the fact of the matter is that no matter what the system is, most of the campaign is going to be directed at the larger states. You go hunting where the birds are, right? There are a lot of birds. A lot of them vote in those states. But what it has done now is, there are 16 states that are swing states. Seven of the 10 most popular states, Republican and Democratic, you have New York and California and New Jersey and Illinois. And then you have Texas and North Carolina [and] Virginia. You don’t campaign there because they are not in play. Indiana isn’t in play because it’s a red state. Maryland isn’t in play because it’s a blue state.

What we are trying to do is that it doesn’t make it different whether it’s blue or red, one vote ought to count once for the candidate whom they selected. In fact the criteria for, I think, electing any president should be the person who gets the most votes. Each vote should count the same. And you are casting the count; the elector is counted or the vote is counted for the candidate for whom it’s cast. Now in Maryland, all Republicans have their votes cast for the Democrats. In Indiana, all of us Democrats have our votes counted for the Republicans. It’s one thing to lose an election, it’s another to lose a ballgame. But to have your opponent’s score count against you, that’s inconsistent with every other election in the country. So this is not a wild, harebrained scheme, something that hasn’t been tried before. It’s been tried everyplace else except for the presidential [election].

How do you feel about the prospect that this frontloading will produce a national primary? Is a national primary healthy or not?

I don’t think so. I don’t believe direct popular vote will proliferate unless you are somebody like Dennis [Kucinich], or somebody like [Ralph] Nader, who likes to think about themselves in terms of being a presidential candidate, more than a normal-sized ego. I am hardly one that should speak to that question. But parties don’t proliferate unless they think they have a chance of winning. And the number of votes Kucinich or Nader would take out of the process in a direct popular vote — both of them collectively could take enough out of the Electoral College process.

Look at what happened in Florida, where a small splinter party can tip a whole state that can result and elect the president of the United States. Because that number of votes — I think Nader got maybe 11 million all together, 1 percent of the popular vote — that’s never going to have an impact on the presidential election unless it’s so close that they are going to be able to make the difference. And I can’t see that happening.

How long would it take something like this to happen?

Well, the problem is that most of the states, in the year following the election, every legislature meets. But we are constricted in some states. New Mexico, we had it ready to go. And the governor wasn’t willing to sign it and make it a national issue. But they ran out of time. California is not one of those states. I don’t think New York is either. But we’ve got apparently the Republicans; the state chairman’s a senator [and] is the one who sponsored the bill in New York.

And if Maryland passes it, then we have got it out of one committee and then California again. And I am so happy a state like Maryland looks like it are going to be first. It sends a much different message than if California is first.

Why is that?

Well, it’s a big-state issue.

Let me ask you a little bit about the change in the amendment on the vice presidential succession that you had a big hand in.

The 25th?

How do you think that has worked out? And do you think that’s improved the quality of vice presidents in any way? Because, for instance, you had Nelson Rockefeller who became a vice president, and they ditched him before he got a chance to run for vice president in his own right.

Gerry Ford did pretty well, though. In fact, he came very close to being elected president. If there had been a change of 25,000 votes in Ohio and Mississippi, or 18,000 in Ohio and Hawaii, the latter, it would have been a vote where Ford and Carter — neither one would have had a majority [in the] Electoral College because of this faithless elector in Washington who voted for Ronald Reagan. Of course, I think in the real world, somebody would have broken his arm or made him the kind of promise of a reservoir or something. He’d have gone with Ford.

But no, I was the first one to testify in the House that I thought Gerry Ford was exactly the kind of party person we had in mind. He should be a member of the president’s own party, philosophically the same. He ought to be a decent human being. And I think Ford met those criteria. I was concerned about Rockefeller because he didn’t meet those criteria. He was a part of the party. But philosophically, coming from [an] oil company family, I felt, given the fact we were hit by OPEC [Organization of Petroleum Exporting Countries] at the time, that the people really weren’t going to be all in touch with that. But I could have been very wrong with that. I think he made a decent vice president.

But the integrity of the 25th Amendment was to let the president fill out his term with the vice president [who] was similar to him. And I don’t think Richard Nixon ever stepped down and turned over the wheels of government to Carl Albert. And I was on Nixon’s enemies list and had disrespect for him. But I didn’t think it made any sense to drag the country through an impeachment process if we could get rid of him some other way.

I think as long as we have two strong parties, the support is going to be around those two parties. So there won’t be much room for the splinter party. But in the primary, you have four or five candidates who are going to split the vote. And traditionally, if you look what’s happened — not necessarily happened this time — but I remember [in the 1972 election] you had [George] McGovern and [George] Wallace contending as the lead horses there. Then you have a division of the party. And I don’t think the extreme on the left or the extreme on the right necessarily has the best chance of winning. A consensus in a convention system has a chance to think it through. I think it’s ultimately going to come up with a candidate who has the best chance of winning. Now we certainly didn’t do that in ’72. 

You had McGovern and [Eugene] McCarthy on one hand, and [Hubert] Humphrey over here on the other with Wallace. And so [there is] something to be said for the convention system that tends to realize, ‘We want to nominate somebody who can win.’

But how do you get there without a candidate? It seems with the decision being made on delegates earlier and earlier, and more and more of them, the only way that I can see where the decision would go into the convention is if, say, out of these four candidates that you have mentioned, that they split the vote evenly in their primaries. Some win some primaries, some win others. But that hasn’t been the history.

No.

I think when Al Gore ran the first time, he won a number of primaries. Gary Hart won a number of primaries. But that just delayed it for a few weeks before we already knew the nominee then and probably in April. And there weren’t all that many primaries up front that there are now. So we are talking now about the decision being made by the end of February.

Getting back to your money question, because it relates to this, it’s clear that the nominating process, with the more candidates you have, the more likely that the person who has the capacity to raise more money than anybody else is going to be in a position of winning the primaries. I am not sure the capacity to raise more money than anybody else means that you are necessarily the best qualified to govern.

Although I have supported public financing, I have not been willing to accept a public-financing system that says, in order to qualify for the funds you have to show your ability to raise a certain amount of money, because if you don’t you are not a credible candidate. I don’t know where you draw those lines. Obviously where they are in the present bill is so outmoded.

Well, they have raised those a little bit. But still, it was a study made — I forget now the name of the person — that showed that every candidate who raised the most money was elected, since the public-financing process has been.

Is that right?

I think it’s every candidate who raised the most money in the year before the election year. So it’s no surprise. The question is, how do you have any kind of an even playing field if the sky is the limit, particularly [with] this question of bundling. What do you think about the bundling of money? Because that’s, after all, what George W. Bush succeeded with like nobody before him in 2000 and drove out all of the other candidates. Most of them dropped out before the primaries even were halfway through.

Well, it’s not illegal to bundle, is it? I mean those are a collection of individuals.

It’s not illegal to bundle. But it amounts to the same thing. And that’s how big money is able to get into the system, as it always has. Do you think there is any possibility that the [Supreme Court’s 1976 decision in Buckley v. Valeo] could be reversed so that you could put a limit on contributions and spending?

I couldn’t understand that decision. I don’t read the Constitution when they say everybody has the right to speak. But if you have a billion dollars, you have a louder voice than somebody who has $250 million. I don’t think that’s what the founding fathers meant. But I didn’t have a vote on that, did I?

Well, do you think that’s something that Congress ought to go after — try to reverse the Valeo decision?

I have not studied it. It’s been a long time. But at the time I was so distressed by it, I probably was in error not helping people analyze it, being one to analyze the Valeo system. Usually the court gives you a benchmark as to how you can get around what they have decided.

Well, that brings up these 527 committees. You know about them?

Yes.

And the independent-expenditure committees, which are able to go outside, raise money, spend it as long as there is no so-called collusion.

Yeah, so-called — emphasize the so-called. The Swift Boat [Veterans for Truth, in 2004,] were not partisan?

Well, what do you think can be done about that sort of thing? Do you think that could be legislated — to bring those committees, the 527s and the independent-expenditure committees, under the tent?

Well, if it’s going to be an effective system, that’s more than a loophole. The whole side of the barn is knocked out as far as circumventing the law with 527s. I don’t know what it’s going to take. Here you have a president who becomes a president [with] 500,000 votes fewer than the person who was running against him. And the decision-making process was the worst since — what was it? — 1876, where Tilden had the majority, a large majority, both the electoral and popular vote, but Congress refused to accept the five Southeastern states. And they set up this committee that had one [Democratic] vote more than the Republicans and, ultimately, they gave it to Hayes. And this was reminiscent of that.

Well, when you talk about these other groups that can work outside the system, you are dealing also with a Federal Election Commission that won’t really get tough. Talk a bit about the FEC and what needs to be done there, both in terms of the money and then the process.

I must confess I haven’t been following that very closely. But they haven’t necessarily made decisions depending upon whether it’s Democratic or Republican. Haven’t they just sort of said, “We are not going to control any of it”?

Well, there is a balance there. There is enough there that they don’t want to make decisions. They have been very timid about taking anything on. And they have interpreted this question that’s essential to the 527s about what constitutes an ad that advocates an election of a person, or just talks about some issues he supports.

It’s kind of a dodge, because it’s clear when some group runs ads on pro- or for or against the position taken by a particular candidate. It’s clear what the purpose of that ad is. They refuse to step up to that. And on the money side, they slap the wrists of candidates two years, three years after the election for violations when nobody cares anymore. And how do you get teeth into a commission that can regulate members of Congress? Nobody in Congress likes the FEC.

Well, and how many people vote for or against a member [of Congress] depending upon where they are on campaign finance?

That’s a good question. What do you think?

Probably 1 percent. That may be an exaggeration.

So you are saying campaign finance is not a voting issue?

No. It isn’t. Doesn’t appear to be that way.

So how could you make it one? How can you make people care about that? And [then there’s] the whole question about self-financed candidates. Polls have been taken that show people say, [of] like Steve Forbes or Ross Perot, “Well, it’s their money.” Or they say, “Maybe they are more honest, because they spend their own money.” You have heard that?

Well, there would be less under-the-influence of contributors. When you talk about the bundling, and you talk about the impact of money on the process, it all depends on who is at the top of the system. I don’t believe that any senator that I served with could be bought for $10,000 or maybe not [even] $100,000. I don’t think so. But it’s only reasonable.

Take myself, for example. I don’t think anybody ever tried to buy me. One guy tried to, and I kicked his rear end out of the office. It wasn’t over an issue; it was over whether or not I should use my influence on the Pentagon to get his son assigned back to Fort Benjamin Harrison in Indianapolis instead of a fort in Washington at the time the Vietnam War was going on. I took him [aside], and he was a cousin of one of my major campaign contributors. “Get your rear end down here,” I said. “When you go to bed at night you ought to get down on your knees and thank God that he is going to Washington instead of Saigon.”

I have to say that as somebody who had given me a large contribution, whatever the maximum might be at the time, that that person had a better chance of at least being heard than somebody who never contributed. Now being heard, I sort of felt this about lobbying. When I first went to the state legislature, we didn’t have any staff or anything. And if you could get a good lobbyist on either side of the issue, you have got a good educational process. The problem is that some of the vested interests don’t have anybody representing the people. And so they don’t have the seat at the table as far as putting the facts on the table. But in the Senate and the House, you have enough staff surrounding you that you can get pros and cons of anything that comes down the pike. But the fellow that’s had a big fundraiser for you and raised $50,000, that person is going to have a better access to be heard. And the right to be heard is the next best thing than the right to decide.

Well, is there anything wrong with that?

No. Unless you assume that elected officials are going to be bought automatically, that there is nothing wrong with it if you make a contribution, you are going to get more attention than somebody who writes a letter. Should it be that way? No. But I mean, hell, where are you going to draw the line?

Anybody ever come into you and say, “I’m giving you this contribution, and I would like you to vote for such and so a thing?”

No. No.

The point you just made about people not caring — isn’t that essential to the problem? If you can’t stimulate and energize people to care about how much money goes into the system, how can you ever get a lid on it?

It’s more devious. I mean it’s more unfortunate or disastrous when a number of people don’t vote. Half of the American population doesn’t even bother to go vote. They are not asked to fill out their checkbook. Just go down and stand in line. I think that’s a tragedy. Who is it, [Benjamin] Franklin, who came down the steps of the Constitutional Hall in Philadelphia and they ask him, “What have you given us, Dr. Franklin?” He says, “I have given you a republic, if you are wise enough to keep it.” It seems to me we are about there, or long past there. I don’t know. 

I just have a couple of other questions.

If I [may] just throw in a current matter here: [the] House bill on the war, the one that had teeth in it. Those members of Congress were responding not to the people who gave the most money. Those three congressmen in the districts, they were hearing out on the street that people were angry about the war. And they are going to vote for a congressman that they thought could help get them out of the war. And that’s why some of these House members were what you call Blue Dogs, conservatives [who] voted against the conservative position, because that’s what the people said.

You are saying, in a way, that money doesn’t rule everything.

People do.

There are certain issues that people are so concerned about that money is not a factor. So you don’t think that money is a factor in how this whole war debate is going to turn out?

No, I don’t. Casualties will. On NPR [National Public Radio] this morning, there was a story about this one little town in California of 68,000 people. Eight people from the same high school have died. I mean, they were not all one accident, but periodically.

Well, let’s see when the body bags start coming home. That’s the way it was in Vietnam.

Well, we would have been out of Iraq a long time ago if they were counting body bags. Now they won’t let anybody take any pictures. Plus, of course, the body bags were a lot more then than they are now.

Right. Another thing is if there was a draft; that would make a difference.

Absolutely. That’s why [young people] and others were really determined that they wanted to end the war. They had their own personal interest. And that’s OK. Your personal interest, whatever it is, whether you are a banker, or a farmer, or whatever it is, I can see why. But what I can’t see is why they don’t continue to be interested. Now, we had a lot of young people in those campaigns out in Indiana. But having sponsored the 18-year-old voting bill, a lot of people say: “Well, it didn’t accomplish what you want. Young people aren’t voting.” Well, neither are their parents.

Plus the whole devious thing is the way the election machinery operates. States tend to make it difficult to register and difficult to vote. I mean, our issue was heard by a committee in which [representatives of] jurisdictions of several of the members who were trying to make sure that there were more voting booths, more voting machines, and that the hours were longer, to make it easier to vote. How can somebody be against it? I don’t know. But there are those.

Did you happen to participate in the commission that was headed by Gerry Ford and Jimmy Carter after 2000, in which they were examining the whole question about balloting, ballots, machines, and all of the equipment for the election? Did you engage with that at all? There was an opportunity there for them to step up. I mean, it seems to me one of the obvious answers is to get every state the same machines, same ballots, so there would be no confusion. But they would never step up to do that.

No. Each state wants to protect its own rights.

And they wouldn’t step up to do something about the Electoral College, either.

That’s right.

Because they are afraid that the small states would oppose it. But they wouldn’t even address it. And this was a commission that was supposed to have no political ax to grind. They just wouldn’t take it on.

What shot down our effort in the Senate — I had 60 cosponsors, and I figured once the bill hit the floor, it would pass the House by an overwhelming margin.

What year was this?

This would have been ’77, ’78, something like that. The bill is being filibustered. I had finally been able to get some sort of unanimous consent that if we held one more set of hearings, they would stop filibustering and put the bill to the vote. Well, during that period of time, it couldn’t have been more than a week, [Republican Senator] Strom Thurmond [of South Carolina] sent out telegrams to a wide list of black and religious minority leaders saying, “If this passes, you are no longer going to have the influence you now have in the large electoral vote states, where the concentration of population of your blacks, or Jews, or whatever it might be, are greater in the large electoral states.”

It wasn’t true, because then they were equally divided. And you now look at the number of black citizens in the South who had their votes cast the opposite way. It isn’t true right now that you have more power, but some of the leaders like to think they do. So we lost that because we lost a few of the key liberal senators from large electoral vote states. We knew we were going to lose some of the conservative senators. [Republican Senator] E. Jake Garn [of Utah] — we asked him about direct popular vote and he was for it 105 percent. [Republican Senator] Henry Bellmon [of Oklahoma], who was on the committee — we set up a commission and asked the [American] Bar Association to set it up in which we had Bellmon from the small, Southern Republicans. And [Governor] Otto Kerner [of Illinois] — a large, electoral vote Democrat.

And we had the [United] Auto Workers and the Chamber [of Commerce], the League of Women Voters, the ABA [American Bar Association] sponsoring. They met for over a year and concluded that the direct popular vote is what ought to be done. And I remember coming up and asking Henry Bellmon if he would be the second cosponsor. He said, yes, he would be glad to. And then he related the experience. He went and sat down there thinking that Oklahoma had an advantage. He realized they don’t, now. Now even large electoral vote states are in play.

Well, it’s good to see you are still plugging away at it.

Well, yeah. When I mentioned a moment ago that you have to campaign where the votes are, there is no way of avoiding the fact that you are going to spend attention campaigning where the votes are. Now you take them for granted. But what generally happens is that you have more attention given to small population centers in large electoral vote states than you do larger population centers in small states. So direct popular vote means that you have a state capital with 100,000 people — it doesn’t make any difference whether it’s Albany [New York], Indianapolis — that number, you are going to [campaign] where you think you have the best chance of getting the votes out, not the electoral votes out.

Well, it seems such a simple proposition that the person who gets the most votes becomes president.

Or county commissioner, or state legislator, or governor. It’s just not something we’ve suddenly become genius to think of a new way of electing a president.