At the Indiana University Robert H. McKinney School of Law 2020 Birch Bayh Lecture, journalist and author Jesse Wegman recounted the late Sen. Birch Bayh’s nearly successful attempt at abolishing the Electoral College and letting Americans elect the president directly.
Bayh helped craft the constitutional amendment that would have changed the way the president of the United States is elected. Rather than having the Electoral College select the country’s leader — and possibility elevating the loser of the popular vote to the White House, as has happened twice in the 21st century — the voters themselves would have directly chosen their president.
The Indiana Democrat came closer than anyone since James Wilson at the 1787 Constitutional Convention to abolishing the Electoral College, according to Wegman. However, despite overwhelming bipartisan support in the House of Representatives and about 80% of the public in favor of a national popular vote, the amendment’s progress was halted Sept. 29, 1970, by just five votes in the U.S. Senate.
“Birch Bayh was a farmer of democracy,” Wegman said. “He planted the seeds of a more equal and a more just America. He helped us cultivate 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,” Wegman continued. “Bayh’s conviction was profound and his inability to achieve a national popular vote pained him deeply for the rest of his life.”
Wegman presented “A New Engine for a New Age: Birch Bayh, the Electoral College and the Push for a National Popular Vote,” Sept. 17 for the Bayh Lecture and Constitution Day program at IU McKinney. Wegman met Bayh shortly before the senator died in March 2019 and discussed the amendment as part of the research for his recently released book, “Let the People Pick the President: The Case for Abolishing the Electoral College.”
The event may be viewed here.
A member of the New York Times editorial board and 2005 graduate of the New York University School of Law, Wegman has written opinion pieces about the dangers of the Electoral College and the need to throw it into the trash bin.
Originally, the Bayh Lecture was scheduled for spring, but the COVID-19 pandemic pushed the annual event to the fall semester. The lecture was held virtually, for the first time, with about 360 individuals attending, according to IU McKinney dean Karen Bravo.
Fittingly, the Bayh Lecture this year took place on Constitution Day. As a young senator newly arrived in Washington, Bayh kept alive and led the then-sleepy U.S. Senate Judiciary Subcommittee on the Constitution and Civil Justice. Shortly after he became the chair, President John F. Kennedy was assassinated. Bayh subsequently crafted the 25th Amendment, which gave clear direction for succession in the event the president or vice president dies or is incapacitated while in office. He also crafted the 26th Amendment, which lowered the voting age to 18, and he advocated for the Equal Rights Amendment.
When the subcommittee began examining the Electoral College at President Lyndon Johnson’s request, Wegman pointed out, Bayh was not convinced much needed to be changed.
“Putting it optimistically, the chances of Congress passing a popular vote amendment are extremely slim if not hopeless,” Bayh said at the opening hearing.
Yet, Wegman noted, after a few months of questioning multiple witnesses and reading thousands of pages of archival and statistical documents, Bayh saw the need to switch to a national popular vote.
Wegman recalled Bayh’s speech on the Senate floor as “one of the strongest and most eloquent arguments for the popular vote in the nation’s history.” Soon the American Bar Association joined, calling the Electoral College “archaic, undemocratic, complex, ambiguous, indirect and dangerous.”
However, the amendment was filibustered in the Senate. White southerners, led by the late Sen. Strom Thurmond of South Carolina, filibustered because they knew, Wegman said, the Electoral College “warped politics in their favor” and prevented African Americans from having an equal voice at the ballot box.
In the new century, George W. Bush and Donald Trump both rode into the White House by winning the Electoral College despite losing the popular vote.
Wegman countered the claim that without the Electoral College, small states like Indiana would be drowned out by more populous states such as New York and California. In present day presidential elections, only the battleground states matter, he said. A little campaigning to push a few thousand votes one particular way can give the entire bucket of the state’s electors to one candidate or the other. Everybody else, he said, does not matter.
“That is really at the heart of the way the Electoral College distorts the American political system and distorts our representative democracy by making it seem like we’re a country of just red and blue when people live everywhere and people everywhere vote for both candidates. I want the national vote to reflect that diversity,” Wegman said.