But most important, Mr. Chairman, I urge that your committee correct the blindspots-the avoidable risks and hazards-that have impaired our Constitution for nearly 176 years. I urge that this constitutional amendment be adopted so that Presidential disability and vacancy in the office of Vice President will no longer threaten our future. I urge that this amendment be adopted to assure the orderly continuity in the Presidency that is imperative to the success and stability of our country and our form of government.

STATEMENT OF HON. HENRY B. GONZALEZ, U.S. REPRESENTATIVE FROM TEXAS

Mr. Chairman, I am deeply appreciative of this opportunity to express my views to your committee on a matter of profound constitutional significancethe absolute necessity for keeping filled at all times the office of the VicePresidency of the United States.

This office is the second highest in our land. Its occupant stands constantly on the threshold of the most responsible, most powerful, most respected, and most difficult job in the world—the Presidency of the United States.

The Vice President must, like the President himself, be a man of great character, experience, and ability. He must have the capacity and the stature to carry the dreadful burden which may be thrust upon him at any time by a wholly unforeseen, unpredictable, and uncontrollable tragedy.

There is no need to labor this point. Surely in these times it is obvious enough to every citizen that the Vice-Presidency is an office of enormous importance.

What is not so obvious is why we as a people, so justly proud of our free Government, our constitutional system, and our political commonsense, have done nothing for 14 centuries about filling this office when it becomes vacant.

This is not some refined constitutional abstraction to be debated only by political philosophers. It is not some technical flaw to be corrected to cover some remote contingency.

Nor is it a controversial issue. There is no need for a pro and con discussion about the need to fill the office. Everybody agrees there should be a Vice President at all times.

Yet, in the 176-year history of the United States, the office of Vice President has been vacant on 16 separate occasions. Eight times the Vice President has moved into the White House to succeed a President who died in office. Seven Vice Presidents have themselves died in office, and one vacated the office through resignation.

For more than 37 years-over one-fifth of the total span of our national history-the second highest office in the land has been unoccupied.

The purpose of House Joint Resolution 53, which I introduced, is to make certain, through an amendment to the Constitution, that this office is never again left vacant for a long period of time. My resolution provides a method for filling this great office whenever a vacancy occurs. It eliminates the necessity of waiting for the next presidential election.

President William Henry Harrison died 1 month after taking office. For the next 3 years and 11 months, there was no Vice President. For more than 3 years and 10 months there was no Vice President after the assassination of Abraham Lincoln. William R. King, elected Vice President as running mate to Franklin Pierce, lived for only 6 weeks or so after his inauguration, so the Vice Presidency was unoccupied throughout virtually all of the Pierce administration. For 3 years and 9 months, President Truman had no Vice President. On two occasions, after the assassinations of Presidents Garfield and McKinley, there was no Vice President for almost 31⁄2 years.

These are not new statistics. They have been cited many times.

But I do not hesitate to refer to them again because each time we think about them, they become more frightening, indeed, more terrifying, and we are reminded anew of the fact that we have taken no steps to prevent the recurrence of these conditions.

Many times, too, we have thought about and talked about the fact that the country has never at one time been deprived of both its President and Vice President.

I do not know whether this has been just blind luck or the hand of providence. I do know that we have tempted fate long enough.

44-261-65--19

The proposed amendment to the Constitution incorporated in House Joint Resolution 53 has just one purpose: to guarantee to the people of the United States that the office of Vice President will at all times be occupied.

This resolution does not go beyond this single objective. It thus avoids such related but much more controversial and complex issues as presidential inability and electoral reform. These are extremely vital matters, but in the interests of absolute clarity, I think they should be considered separately.

Despite the importance of its substance, my resolution is easy to understand, straightforward, and uncomplicated. Furthermore, the change it proposes in our fundamental law would assure the use of thoroughly democratic procedures in filling the Vice Presidency when a vacancy occurs.

My proposed amendment states that if for any reason the Vice Presidency is made vacant more than 30 days prior to the expiration of the term for which the Vice President was elected, the person discharging the powers and duties of President shall nominate someone to fill this vacancy. The appointee must then be confirmed by a majority vote of Members of the Senate and House of Representatives meeting in joint session, with each Member having one vote.

As we know only too well from our own experience, a vacancy may result from several causes. The President may die, be removed from office, or resign, in which case the Vice President would vacate his own office to serve as Chief Executive. Or, of course, any of these things may happen to the Vice President himself with the same result as far as his office is concerned.

My proposed amendment would cover all of these contingencies. It would even cover the possibility of something happening to the President-elect or the VicePresident-elect.

Like every other conscientious Member of Congress, I try to be as objective as possible in reaching decisions about the flood of legislation which always confronts us. Many of us, I am sure, are inclined to be especially thoughtful, even critical, about any measures we ourselves introduce and for which we are therefore directly and solely responsible.

I have gone through this highly personal mental process with reference to House Joint Resolution 53. I have no reservations whatsoever about it. The reasons for its approval are overwhelming, and I cannot think of a single rational argument that can be directed against it.

It is not enough to hope and pray, as we all do, that this amendment, if adopted, will never be used. More strongly than any mere words or arguments, our political history attests to its past need, and our sense of prudence warns us that it may be needed again.

I strongly urge prompt and favorable action by this committee on House Joint Resolution 53 so that Congress and the several State Legislatures may move with all possible speed toward its final enactment.

CONSTITUTIONAL PRINCIPLES AND SECTION 2 OF H.J. RES. 1 (VACANCY IN THE OFFICE OF THE VICE PRESIDENT)

Statement by Laurence G. Kraus, Belvedere-Tiburon, Calif.

The presidential succession amendment (H.J. Res. 1) projects the illusion of flexibility. The thesis of section 2 is that after the amendment is effective, Congress can legislate controlling procedures; meanings are purposely left

open.

But in the pursuit of flexibility, principles have been forgotten. Likewise, too little attention has been paid to existing constitutional restrictions. There are several issues.

First. Are the principles that underlie the historic American use of the secret ballot by elected Representatives (Congress) "minutiae"? Does abiding by them mean cluttering up the amendment with details? The answer is simple. The framers put these principles in the Constitution. They specified voting by secret ballot in congressional elections of executive branch leaders as a necessary safeguard. Yet section 2 reverses these principles; it drops their precedent.

Second. Section 2 merges "confirmation" and "election" to the office of the Vice President. Selection of executive branch leadership, in effect, is treated as a matter of legislative branch “advice and consent." In the blurring of this distinction, constitutional precedents on the importance of voting method (visa-vis elections and confirmation) are, again, neglected.

Third. The theory of section 2 that decisions on procedures should be left to future Congresses is dangerous. The framers were alert to the peril that would prevail if procedures for elcetion of executive branch leaders could be changed. Political disturbance might charge through this loophole. There are but three choices in the treatment of these issues.

One is the choice, I believe mistaken, of section 2. It excludes, essentially, the secret ballot (though this devastating omission is, perhaps, not meant). Nevertheless, section 2 overlooks the interlocking checks and balances of the Constitution, particularly in the provisions that control separate House and Senate votes.

The second is a compromise of sorts. Section 2 could require that Congress vote in joint session. In a joint session, the Constitution would not restrict rules or statutes (as it does in the House and Senate when they act as separate bodies). This would keep open the possibility that even if the secret ballot is not mentioned specifically, the precedents of the Constitution which treat secret ballot voting in congressional elections of executive branch officers might be followed. Yet, this would be no more than a possibility. Moverover, the political pitfalls in establishing rules for a joint session are numerous. Thus, this choice only leads to a question. For what reason is "substance" being postponed?

If the answer is "flexibility," section 2 does not provide it.

The third requires revising section 2. It should be changed to read "by a majority vote by secret ballot of both Houses of Congress." This is the line the framers took.

The following develops the facts that underlie these choices:

A. Article II, section 2, paragraph 2 limits legislative branch "advice and consent" to "officers of the United States whose appointments are not herein otherwise provided for." The office of the Vice President is therein excepted from congressional votes of confirmation. The Vice President is elected.

B. There are constitutional and congressional precedents that apply when Members of Congress vote on electing someone to presidential or vice-presidential office. Given essentially the same set of circumstances that will be covered by the presidential succession amendment (vacancy in executive branch office, and final word on the election of a new officeholder by Congress), the framers set a a requirement of voting by secret ballot in article II, section 1, paragraph 2. This specification was repeated in the XIIth amendment of 1804. These provisions are touched off by the failure of the electoral college to produce a majority.

(Exhibit A hereto is a report by the Legislative Reference Service of the Library of Congress on the procedures followed when the House elected President Adams in 1825. This report proves the use of the secret ballot.)

C. Article I, section 5, paragraph 3 says "the yeas and the nays of the Members of either House on any question shall, at the desire of one-fifth of those present, be entered on the Journal." This provision refers to "each House" (not to a joint session). It should be noted that by specifying voting by secret ballot in article II, section 1, paragraph 2 (item B above), the framers made this 20 percent clause inoperative in said election. Yet, when as in section 2 of House Joint Resoultion 1 voting method is not specified, the 20 percent clause applies. The secret ballot, per section 2, would be, in fact, excluded for purposes of voting in either the House or the Senate. In contested decisions, 20 percent or more of a division is expected.

D. The founders of this Republic were realists. They knew where to set the balances that made the Constitution what it is. They were not purists who flinched at the hard competition of power: in their rules for open voting and accountability on tangible issues they were quite satisfied that bills and resolutions be resolved by countervailing pressures.

But on decisions of leadership-no.

The intangibles of leadership were, they said, too sensitive. When policy and direction are tied to personality and instinctive judgment, voting must be accurate in terms of conscience, not the weighing of power nor representative accountability.

The secret ballot means that when the totals are announced, no one can be sure how anyone else has voted, despite intentions announced before the voting. It means the uncommitted elector, the representative in the middle whose vote swings the election, votes freely.

E. A new President taking office as the successor to a dead President is politically exposed. Rather than rallying to his leadership, Congress might seek to dominate him (President Andrew Johnson, Senator Thaddeus Stevens, and impeachment). In leaving each successive Congress free to establish its own procedures on how section 2 should be implemented, House Joint Resolution 1 preys on this weakness. It forces a quick showdown on a newly elevated President's nomination for Vice President (or even before that in deciding in both House and Senate on a joint session, and then in establishing joint-session rules). Section 2 of House Joint Resolution 1 makes the procedures for selection of a new Vice President either meaningless or divisive. If the section is changed to specifying voting by secret ballot, the selection will be meaningful.

1. The circumstances of meaningless confirmation are clear. Unwilling to risk presidential disfavor, Congress might play the part of a rubberstamp in passing on the President's nominee. Yet, the Vice President is a potential world leader.

2. The circumstances of divisiveness are varied. For purpose of specific illustration, presume House Joint Resolution 1 was the law of the land. Then presume that:

(a) The Democratic Convention of 1960 nominated a Kennedy-Humphrey ticket instead of a Kennedy-Johnson ticket. This ticket was then elected.

(b) Vice President Humphrey, with a political base in the liberal wing of the Democratic Party, succeeded to the Presidency on President Kennedy's death. The election of 1964 was 11 months away. The most pressing national issue was civil rights (a sectional issue).

(c) With the new amendment operative and the Vice-Presidency vacant, President Humphrey would be obliged to make an almost instant decision on whom he should nominate. He could not wait for consensus to develop.

(d) Anticipating the coming national election, the Republican leadership would recognize that if Congress refused to confirm President Humphrey's nominee, the new President would be significantly discredited. Enter motivating factor No. 1.

(e) The southern democrats would be quick to recognize that they could reverse the momentum for passage of the Civil Rights Act by likewise discrediting President Humphrey. Enter motivating factor No. 2.

(f) President Humphrey would recognize that the outcome of the congressional showdown would control the character of his Presidency, as well as his prospects for reelection. He would be forced into immediate and drastic use of presidential power. Enter motivating factor No. 3.

(g) A coalition would form. The showdown would become a transaction in power. With "viva voce" voting, deals can be made. Votes can be bargained for and delivery can be checked.

(h) The tactical advantages of the showdown would lie with the congressional opposition. They need never announce their true objectives.

(i) Conclusion-House Joint Resolution 1 (sec. 2) makes a political effort to discredit a newly elevated President at the onset of his Presidency eminently practical. The dangers to the national interest that underlie such divisiveness at a time of changeover in the Presidency are not hard to imagine.

3. A firm requirement of voting by secret ballot will reverse the circumstances cited above. The selection can be made meaningful. Voting method controls the underlying forces in any election.

(a) President Humphrey will nominate as Vice President a Democratic leader who can win secret ballot confirmation. The specification of a secret-ballot vote requires that the nominee be a man of superior qualities and unassailable character who stands to win a majority of the votes, freely given, of Members of both the House and the Senate.

(b) Coalitions will not form because of the secret ballot. Party or regional loyalties cannot be policed. No one can be sure how anyone else has voted. Votes cannot be bargained for because delivery cannot be checked.

(c) Endorsements and commitments will be made much as lapel buttons or bumper strips are shown in any nublic election. But the secret ballot grants independence to those in the middle. It frees the judgment of those who find it hardest to choose.

The ultimate issue of section 2 of House Joint Resolution 1 is American confidence in the secret ballot.

Section 2 does not need flexibility. It needs a restatement of the confidence that has existed in the secret ballot since its principle was incorporated in the Constitution by the framers.

In part this is an issue of awareness. For the use of the secret ballot in American politics has had its ups and downs. Of late, the curve is in a strong uptrend (specifically, the independent use of secret ballot voting in leadership decisions in the caucuses and conferences of both Republicans and Democrats, and in both the House and the Senate).

Voting method has been debated in Congress. Exhibit "B" hereto is a partial transcript, taken from Gales & Seaton's Register of Debates in Congress, of a debate in 1829 on the issue of confidence in the secret ballot, and on the meaning of constitutional provisions on voting method. The dialog of 1829 can be helpful in directing the dialog of 1965.

The following is taken from the remarks of Congressman Bartlett of the 21st Congress: (Gales & Seaton's transcriptions are in the third person.)

"The possibility of *** on the one side *** while no evil is shown to exist on the other, was, of itself, a good reason against altering the present mode of election. He should therefore vote against the resolution and against every other which, like this, went to alter what experience had proved to be attended with no evils, for the sake of introducing new-fangled and untried expedients, which carried mischief in their aspect."

For some, it appears, the congressional use of the secret ballot, and the principles behind it, have become the untried and the suspect.

Congress has no grounds for being suspicious of the secret ballot.

EXHIBIT A

THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, Washington, D.C.

PROCEDURE FOLLOWED BY THE UNITED STATES HOUSE OF REPRESENTATIVES IN CHOOSING THE PRESIDENT IN EVENT NO CANDIDATE HAS RECEIVED A MAJORITY OF THE ELECTORAL VOTE

Amendment XII to the U.S. Constitution provides that in case of a tie or if no candidate has a majority, the House of Representatives chooses the President by ballot from the candidates, not exceeding three, having the highest numbers of electoral votes. A majority would be at least 266, since the total electoral vote is 531.

Only once since adoption of amendment XII in 1804 (and once under the original Constitution, article II section 1-election of Jefferson in 1801) has the duty devolved on the House to elect a President. This occurred in connection with the election of 1824. On February 9, 1825, when the electoral votes were counted by the President of the Senate in the presence of the Senate and House in joint session, the vote declared for President was as follows:

The House then, on February 9, proceeded to elect a President from among the three highest candidates. Each State had one vote and the result was as follows:

For John Quincy Adams, of Massachusetts-

For Andrew Jackson, of Tennessee_.

Votes

12

7

For William H. Crawford, of Georgia__

John Quincy Adams was thus elected President.

The following rules of procedure in election of the President by the House had been previously adopted by the House on February 7, 1825:

"1st, In the event of its appearing, on opening all the certificates, and counting the votes given by the electors of the several States for President, that no person has a majority of the votes of the whole number of the electors appointed, and