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How the filibuster was used 51 years ago to keep the Electoral College

A popular-vote constitutional amendment died on the Senate floor in  September 1970, killed off by a filibuster led by three Southern senators.

Sen. Amy Klobuchar reading the final certification of Electoral College votes early Thursday morning during a joint session of Congress.
J. Scott Applewhite/Pool via REUTERS
Sen. Amy Klobuchar reading the final certification of Electoral College votes early Thursday morning, January 7, during a joint session of Congress.
To me, the Electoral College system is a terrible way to pick a president. I’ve railed against it in the past, so I’ll just ask: Why would you want a system in which the person who gets the most votes can lose, as has happened five times in U.S. history, and, most recently and tragically, in 2016, resulted in a loser-winner who is a leading contender for the title of worst president ever?

(None of the five loser-winners make anyone’s list of best presidents.)

I’ve thought this for years. But I had forgotten (assuming I ever knew, and surely I must have come across this before) that in 1970, a proposed constitutional amendment, which had majority support in both houses of Congress and a decent chance of being ratified, was killed by a Senate filibuster and so was not referred to the states for ratification. It would have abolished the Electoral College.

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The story is told here, in a February piece by Jesse Wegman of the New York Times editorial board, that I must’ve missed at the time but stumbled across this morning. While the amendment had majority support in both houses of Congress, I don’t suppose we can know whether it would have received the necessary support of three-quarters of states to be ratified and implemented. But the senators who filibustered it must have been worried that it might.

The tragic hero of the tale was the excellent Sen. Birch Bayh of Indiana, who had been pushing for congressional approval such an amendment since 1966. A Bayh aide who was there and worked on it is quoted in the Times piece thus:

“We were in a moment,” Jay Berman, a top legislative staff member for Senator Birch Bayh of Indiana, told me. Mr. Bayh had been pushing for a popular vote since 1966, shortly after the passage of the Civil Rights and Voting Rights Acts had ended the Jim Crow era and pulled America closer than it had ever been to a truly representative democracy. Electing the president directly was the next logical step in that progression.

“It’s very, very difficult to deal with institutional, transformative issues like this. And we had that moment,” Mr. Berman said. “That’s what makes it so galling.”

The “it” was the unceremonious collapse of the popular-vote amendment, which died on the Senate floor in late September 1970.

A lot happened in the year after it sailed through the House, including two failed Supreme Court nominations by President Richard Nixon, that delayed and distracted senators. But in the end, the amendment was killed off for good by a filibuster led by three Southerners — Strom Thurmond of South Carolina, Sam Ervin of North Carolina and James Eastland of Mississippi, the long-serving chairman of the Judiciary Committee and one of the most powerful men in the Senate.

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We can’t know whether approval in the Senate would have led to ratification in the states; as you know, ratification of an amendment requires a supermajority of states. But the three notorious racists, Thurmond, Ervin and Eastland, were worried enough to roll out one of the other great anti-majoritarian features of our system, the Senate filibuster, to make sure we wouldn’t find out whether the country was ready to switch to a system in which everyone’s vote would be equal (instead of the Electoral College, which values only the votes of those who live in the swing states), and in which the candidate who got the most votes would win.

Imagine such a crazy idea.

Wegman’s Times piece telling a fuller version of the tale is here.