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A NY Times opinion article mentioned a failed 1970 bill that would have introduced a potential constitutional amendment removing the electoral college.

It had passed the House of Representatives, but this bill was then held up and ultimately defeated by a Senate filibuster:

When the amendment resolution finally came to the floor of the Senate in September 1970, thanks to the prodigious efforts of an Indiana senator, Birch Bayh, it was greeted by a filibuster led by segregationists Sam Ervin and Strom Thurmond (with an assist from the Nebraska Republican Roman Hruska). Although things were changing in the South, its political leaders remained steeped in the values and perspectives that had informed their hostility to the civil rights movement and the Voting Rights Act. “The Electoral College,” wrote Senator James Allen of Alabama in 1969, “is one of the South’s few remaining political safeguards. Let’s keep it.”

The filibuster succeeded, dooming the proposal: attempts to invoke cloture — to end the debate and vote on the amendment itself — fell a few votes short of the two-thirds majority then needed to break a filibuster. The regional lineups in the crucial cloture votes (there were two) were starkly visible. More than 75 percent of Southern senators voted against cloture; a similar proportion of senators from outside the South voted favorably.

But the article doesn't discuss what the chances were for this bill otherwise. Presumably the filibuster was used because without it the bill would have passed the Senate (or at least had a very good chance of doing so) and gone on to the President for consideration.

Assuming Congress had passed the bill, can we gauge from other hallmarks of the time whether it would have been successful? For instance, did President Nixon make any statements about the bill? Similarly, what were the chances it could have been ratified by the States?

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It appears that it got about 6 (out of 100) votes shy of cloture at its closest. "Cloture" is of course the term the Senate uses for putting a bill up for a vote. Purposely blocking a vote is what is often called a "filibuster".

On September 17, 1970, a motion for cloture, which would have ended the filibuster, received 54 votes to 36 for cloture, failing to receive the required two-thirds majority of senators voting. A second motion for cloture on September 29, 1970, also failed, by 53 to 34

However, that wouldn't have been the end of the story. That would only have sent the proposed amendment to the states. Passage in the state phase requires sign-on from two-thirds of the states. In theory, if the Senators were properly representing their states, then it should have had the same trouble in the states that it had in the Senate.

The cloture rules in 1970 were 60 (out of 100) votes. If it couldn't get support from 60% of the state's representatives in this phase, getting the support of 66% of the states in the later phase seems unlikely.

However, its possible the voters of the states in question might have had a different opinion of the matter than their senators, if given a shot. Senators of course have a different perspective than voters.


This however is where I like to point out that a constitutional amendment is not actually required to get a popular vote presidency. States get to decide how their electors are picked. If an electoral college majority of states all agreed to only send electors pledged to the winner of the national popular vote for President, that would be sufficient to elect that person as President every cycle. Not only would this not need to pass two separate 2/3rdish vote hurdles, but it could actually be done with a minority of states, if the states that signed on were big enough.

There is in fact a multi-state effort to do this, the National Popular Vote Interstate Compact. It has been a serious effort since about 2006 (14 years now), but the idea dates back to about 2001. It currently has 196 of the required 270 electors worth of states signed on.

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  • This is a good general discussion but it doesn't have anything specifically to do with the events in the question. – UuDdLrLrSs Aug 4 at 17:50
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    If you're going to bring this in from left field, at least discuss that a serious constitutional challenge would likely also have to be won the moment state electors failed to represent the polled wishes of the state's citizens. – Pieter Geerkens Aug 4 at 17:57
  • It's also not clear that the electors (real flesh and blood people chosen by their political party for their partisan loyalty) would, or could be forced to, vote contrary to the wishes of their state's voters. – Ne Mo Aug 4 at 18:48
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    @NeMo - Actually, SCOTUS just a month ago ruled that states are perfectly free to use their laws to dictate how electors can vote. So, yes its quite clear now. – T.E.D. Aug 4 at 19:51
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    @NeMo - They also support not having a vote at all. Prior to the Civil War, many states never bothered to have any kind of popular vote for President, and just let the Governor or State Legislature pick electors. No constitutional amendment ever changed this, so its still a possibility. If the legislature has the power to pick them, it can certainly do so via this kind of law. – T.E.D. Aug 4 at 20:59
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The bill in question was known as the "Bayh–Celler amendment". The full text of the bill can be found here (section 3.4, page 143).

One way to answer "how close" the US was to Electoral College reform is to compare to other similar events. It seems that at that time this bill was the "closest" in relative terms the US has ever come to modifying the Electoral College system. Passage by the House represented more support than any other proposal had ever received.

But that only measures success of the bill in a one-dimensional way, when by design amendment of the US Constitution requires a complex set of independent political components to all provide sufficient support. So to better understand the context of the bill at the time, it seems worth breaking down where there was support, opposition, and what opportunities did / did not exist at the time.

The distinct political components were: support of Congress, of the President, and of the States; all of which would be required to successfully amend the constitution. I've organized the remaining material along these lines.

Congressional Support

In the House of Representatives the bill was passed with fairly overwhelming support in a vote of 339 to 70 (ref). This easily exceeded the 2/3rds vote required for an amendment in that body (ref).

As far as I can tell, the success in the House was the furthest any attempt at reform has ever gotten, although there have been other attempts (based on ref and ref).

As noted in the question, the bill failed in the Senate due to a filibuster. The filibuster procedure at the time required a 60% majority to progress any legislation, which clearly it did not have. Apparently the bill would have gotten 55-60 Senate votes were it put up for a full vote (NY Times 1 and 2), but this still would have been well short of the 2/3rds requirement for an amendment bill to succeed in the Senate. (By Sept. 1970, support had even diminished slightly, as evidenced by a second failed cloture vote).

On the other hand, those Senators opposed may have felt there was some risk, or else the filibuster would not have seemed necessary. From the above article which was reported prior to the filibuster:

Senator Bayh said today it would be “a really tough job” to get the amendment ratified in time to make it effective for the 1972 Presidential election, but he thought there was “a good fighting chance” to do so.

So Bayh thought there was not only the possibility of enough votes, but also that the process could occur within roughly a 2.5 year period. This might have been unrealistic optimism, or perhaps the main opposition really was just those senators who ultimately decided to filibuster and not risk a full vote.

Presidential Support

One reason for the focus on the Electoral College at that time was the prior presidential election of 1968. In that election Richard Nixon won the electoral vote by 56% to 36% of his closest rival, but despite the seemingly comfortable victory this actually represented a very close popular win of just 43.4% to 42.7% (ref).

President Nixon publicly supported this type of reform and had made statements to that effect on more than one occasion. In his February 20, 1969 Special Message to the Congress on Electoral Reform, Nixon wrote,

Today, our presidential selection mechanism ... requires overhaul to repair defects spotlighted by the circumstances of 1968. The reforms that I propose are basic in need and desirability. They are changes which I believe should be given the earliest attention by the Congress. I have not abandoned my personal feeling, stated in October and November 1968, that the candidate who wins the most popular votes should become President.

...because of the compelling specific weaknesses focused in 1968, I am urging Congress to concentrate its attention on formulating a system that can receive the requisite Congressional and State approval.

...

Different plans for reform have been responsibly advanced by Members of Congress and distinguished private groups and individuals. These plans have my respect and they merit serious consideration by the Congress. I have in the past supported the proportional plan of electoral reform... But I am not wedded to the details of this plan or any other specific plan. I will support any plan that moves toward the following objectives: first, the abolition of individual electors; second, allocation to Presidential candidates of the electoral vote of each State and the District of Columbia in a manner that may more closely approximate the popular vote...

Taking him at his words here, it seems clear that he would have supported the amendment bill. [As noted in a comment from T.E.D.] although the president does not formally approve / veto an amendment proposal, he could have exerted political pressure to aid its passage. For instance, by tying his support for other political activities to the support of others for the amendment.

In the case of the Senators opposing the 1970 proposal, they were from both parties; perhaps Nixon could have been more effective at mustering influence on those from his own party and not all those who eventually filibustered. However by Sept., 1970 apparently he had not done so (ref).

Support of the States

In "A Survey Finds 30 Legislatures Favor Direct Vote For President", The New York Times, October 8, 1969, it was reported that:

30 state legislatures were "either certain or likely to approve a constitutional amendment embodying the direct election plan if it passes its final Congressional test in the Senate." Ratification of 38 state legislatures would have been needed for adoption. The paper also reported that six other states had yet to state a preference, six were leaning toward opposition, and eight were solidly opposed.

Surveys can have a degree of error, of course, so its worth trying to weigh its results against other information.

In the failed Senate vote, the Senators in opposition "were evenly divided politically, 18 Democrats and 18 Republicans. It was almost entirely a coalition of Southerners and Conservatives from small states who had protested that abolishing the Electoral College would reduce their states political influence." (ref) Possibly or likely, the same set of states were among those clearly not in support of the amendment.

It is of course unknown how success in Congress might have influenced the states to behave; possibly such hypothetical support could have nudged enough states over the line. The strong support in the House of Representatives appears to be greater than the surveyed support of the state legislatures, which might indicate that general popular support was also strong. Such support could have changed enough minds (or at least votes) in enough states.

But regardless, the support of the states at that particular moment was not nearly as important as Presidential & Congressional support, because the amendment bill specified no expiration before ratification was required. Therefore it would have been possible for state ratifications to gradually accrue (as later happened with the 27th amendment which took about 200 years to ratify.)

Given this last fact, and accepting the survey as being at least in the ballpark, eventually sufficient state ratifications would have been quite likely if not actually inevitable.

So, "how close" was the US to electoral reform in 1970?

I'd say, "pretty close", in the sense that this was not a fringe idea or one lacking substance. From what I gather, it was essentially only the Senate filibuster that stood in the way, because all other dependencies were either already satisfied or had a path forward.

Also in hindsight it seems quite significant that the US did not ultimately make any changes in 1970, because two elections since then (2000 and 2016) would have seen different winners had the proposed changes been in place.


Note on terminology - a proposed amendment as it makes its way through Congress is not really a "bill" in the sense of "how a bill becomes a law" because it has a different standard for passage (2/3rds majority in both houses) and does not require a presidential signature (nor veto). Technically these proposals are called "Joint Resolutions". However other activities in Congress also go by the term "Joint Resolution" and so it doesn't unambiguously refer to proposed amendments. So I'm using the term "bill" here just for simplicity, and because the congressional process is nearly the same.

Note on references - in some cases I've gotten information from Wikipedia; although in these cases Wikipedia itself cites primary or secondary sources, I haven't had access to all of those. I directly linked to those where I could.

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    I'm no expert in this area but this answer seems to cover the question clearly. Nice job! – Lars Bosteen Aug 6 at 2:17
  • Upvoted btw. I disagree with the analysis at the end too (you can probably see why by reading my analysis in my answer), but in the end that's analysis, not fact, so I can't say its wrong. – T.E.D. Aug 6 at 14:01
  • @T.E.D. It just stood out to me that the filibuster gave an outsized influence to a very small group, and when answering such a qualitative question it seemed OK to point that out. – UuDdLrLrSs Aug 6 at 14:05
  • Yeah, it would be cool if we had a good question on the filibuster, so we had a good chance to really dive into it. – T.E.D. Aug 6 at 14:09
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Question: How close did the US come to removing the Electoral College in 1970?

Short Answer:
Pretty far away from becoming part of the Constitution. To quantify: A bill once taken up by Congress has a 0.25% chance of becoming part of the constitution. If it had been successfully advanced through Congress, (the house and senate) it's chances in becoming law improve to 73%.

Detailed Answer Two ways Amendments are proposed.

  1. By a constitutional convention "called for by two-thirds of the State legislatures"
  2. by congress with a 2/3rds vote by both the house and senate.

of the 27 amendments successfully added to the Constitution all have come from Congress and none from constitutional conventions.

Once proposed they become part of the constitution when they are ratified by 3/4th of state legislatures.

To date 11,000 proposed amendments have been taken up by congress, of those only 27 amendments have successfully been added to the US constitution.

The bill in question was considered by congress and progressed no further. Once considered by congress such an bill has only a 0.24% chance of becoming an amendment. (27/11,000)*100 = 0.245454545454545%

If the bill had been successfully passed by congress it's chances of becoming an amendment improves to 27/37*100 = 73%.

A short list of constitutional amendments proposed in the current Congress
The bill in question was taken up by congress but never advanced beyond congress. As such it joins the 11,000 other proposed constitutional amendments taken up by congress only to fail there.
.
Since 1789, just 27 amendments have been added to the Constitution, with 10 of those amendments arriving with the Bill of Right’s ratification in 1791. (The 18th Amendment was also repealed when Prohibition ended.)
.
More than 11,000 amendments have been proposed in congressional history, according to the Senate’s historian and 37 of those proposed amendments were approved by Congress for submission to the states.

.

Constitutional Amendment Process
he Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.
...
A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed.

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    I don't think it is logically accurate to state that a bill has a 0.24% chance of becoming ratified. That is just the proportion of past such incidents. It is in no way predictive in the same sense as "50% of coin tosses will be heads" is predictive. – UuDdLrLrSs Aug 5 at 19:07
  • @UuDdLrLrSs It may not be a precise way to access the chances of an amendment considered by congress becoming part of the Constitution; but it is certainly a rational and logical way to quantify those chances. – user27618 Aug 5 at 19:12
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    I think its perfectly useful to cite the past statistics; I was just nitpicking that it isn't the same as stating an actual probability. – UuDdLrLrSs Aug 5 at 19:14
  • I would argue it is a way of calculating "actual probability" of a bill once considered by congress in becoming part of the Constitution. An alternative and less general method for a specific bill's chances might be to consider public and political popularity as well as the motivations of the stakeholders on both sides. Both can be fraught with inaccuracies, both are logical and qualitative. – user27618 Aug 5 at 19:27
  • I appreciate your POV. Another interesting way to look at it would be to narrow down those 11,000 to the ones that were passed by either the House or Senate. Presumably that is a much smaller number and also would be those that were at least plausible on some level. That would be a more similar sub-group to the specific proposal asked about in the question. – UuDdLrLrSs Aug 5 at 19:30

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