Oct 25, 2024
Transcript
[RADIOLAB INTRO]
ANNIE MCEWEN: Hey-ho, I'm ready to go.
LATIF NASSER: Okay.
ANNIE: Let's go.
LATIF: This is Radiolab. I'm Latif Nasser.
ANNIE: Good.
LATIF: And—and I'm Annie McEwen.
ANNIE: Oh, I'm gonna be in the thing? I'm gonna be at the top?
LATIF: Yeah, sure. Why not?
ANNIE: And I'm Annie McEwen.
LATIF: And you might be wondering why you're here, Annie McEwen.
ANNIE: I thought this was the bathroom. What am I doing here?
LATIF: [laughs] Well, I needed help. I needed a companion for this piece.
ANNIE: Okay. Lulu's out.
LATIF: Lulu's out. Still on maternity leave. And I wanted you here for this story because you and I, we are both Canadians.
ANNIE: Mm-hmm.
LATIF: And I wanted to do a story that is not about Canada ...
ANNIE: [laughs]
LATIF: ... but about something essential to this country, the United States. And I just thought there's a value to you and I not being from here in this foreign land.
ANNIE: Like we're aliens staring out of the cockpit of our UFO at the new land in front of us and observing? We're anthropologists.
LATIF: Yeah, very polite anthropologists.
ANNIE: [laughs] Okay.
LATIF: And so if we could, I would like for us to turn our Canadian eyes to the US Presidential election.
[NEWS CLIP: This election is close. Everyone knows that. But ...]
LATIF: And so—well, so maybe my first question is just, what do you think about when you think about an American election?
ANNIE: The circus.
[ARCHIVE CLIP: Kamala Harris!]
ANNIE: The carnival.
[ARCHIVE CLIP, Donald Trump: So put on Pavarotti singing, "Ave Maria," nice and loud.]
ANNIE: Sort of a grotesque Carnivàle type thing. But it just looks so confusing. I'm just, like, in awe of how complicated it is.
LATIF: Yeah, that's—that's the thing. When I first got here, the way this country picked presidents felt to me like ...
[ARCHIVE CLIP: Here, we've got our reds, we've got our blues.]
LATIF: ... a giant ...
[ARCHIVE CLIP: We've got our toss-ups.]
LATIF: ... Rube Goldberg machine. With all kinds of—you know, it's like ...
[ARCHIVE CLIP: Take a look at this. This is her big, blue firewall.]
LATIF: ... if Pennsylvania goes blue, eight doors open up.
[ARCHIVE CLIP: Flip back the blue wall.]
LATIF: And a marble hits Michigan and a mousetrap falls on Wisconsin.
[ARCHIVE CLIP: So that's your clearest path to victory. But she's got several paths.]
LATIF: Or how about ...
[ARCHIVE CLIP: Say Harris loses Georgia.]
LATIF: Well ...
[ARCHIVE CLIP: Guess what?]
LATIF: ... look out for North Carolina.
[ARCHIVE CLIP: You come over now to the sunbelt battleground states.]
LATIF: Which means then, you really need to pay attention to Nevada and Arizona.
[ARCHIVE CLIP: Well, those are very, very swingy states that are very much in play for both campaigns right now.]
LATIF: And it's sort of just like, how?
ANNIE: [laughs]
LATIF: One of, if not the most important election in the world, how is this the system? Like, just the system seems so arbitrary. It's always seemed so arbitrary and confusing, until I heard this story.
ANNIE: Oh!
LATIF: This story for me felt like it explained so much about how Americans pick their president and why. But also that it didn't necessarily have to be this way. And there was a moment. There was one moment, not—like, much more recent than I expected, there was one moment where it all could have been a lot simpler and it almost was a lot simpler.
JILL LEPORE: Hello?
LATIF: Hey!
JILL LEPORE: Hi. How are you?
LATIF: And it's a story I first heard ...
LATIF: Good. How are you?
JILL LEPORE: I'm good. I'm good. Sorry, we're a little, as usual, slightly frantic here.
LATIF: ... from my friend and mentor, Harvard historian, Jill Lepore.
JILL LEPORE: [laughs]
LATIF: So the story starts with a guy.
JILL LEPORE: And I kind of love this guy.
LATIF: Birch Bayh.
JILL LEPORE: And I especially love him because of his jingle.
[ARCHIVE CLIP: Hey, look him over. He's my kind of guy.]
LATIF: [singing] "He's my kind of guy. His first name is Birch. His last name is Bayh."
[ARCHIVE CLIP: His first name is Birch. His last name is Bayh.]
LATIF: He was a US senator ...
JILL LEPORE: ...from Indiana.
[ARCHIVE CLIP: ... our Hoosier state.]
JILL LEPORE: Like, a very wholesome-looking kind of corn-fed guy.
[ARCHIVE CLIP: ... no-one has done before. So hey, look him over.]
LATIF: He's very handsome, charming, dimples, blue-eyed young guy.
JILL LEPORE: Like a John F. Kennedy manqué, as they would say.
LATIF: He literally gets called the Kennedy of the Midwest.
[ARCHIVE CLIP: Please join me in a warm welcome for the Democratic senator from Indiana, Birch Bayh.]
JILL LEPORE: And ...
[ARCHIVE CLIP, Birch Bayh: Thank you very much.]
JILL LEPORE: ...he was very ambitious.
[ARCHIVE CLIP, Birch Bayh: I think we have a responsibility to see ...]
JILL LEPORE: Very, very ambitious.
[ARCHIVE CLIP, Birch Bayh: ... that this country is today, and will be for future generations, what Abraham Lincoln described as "the one last best hope." That's a rather significant responsibility. It's ours. It's yours and mine, and I hope we don't shirk it.]
JILL LEPORE: So he's elected to the Senate in 1962, takes office in 1963.
LATIF: And when he gets there ...
JILL LEPORE: ...he's one of the youngest members of the Senate.
JAY BERMAN: He's still wet behind the ears.
BOB BLAEMIRE: Yeah. He's 34 years old.
LATIF: So Birch died in 2019, but we were able to talk to two of his former staffers.
JAY BERMAN: I'm Jay Berman. At one point I was a legislative assistant to Senator Birch Bayh of Indiana. At another point I was the chief of staff.
BOB BLAEMIRE: And my name is Bob Blaemire. I spent the first 13 years of my adult life, starting as a freshman in college, working for senator Birch Bayh.
LATIF: So a couple of things to know about Birch. One ...
BOB BLAEMIRE: Birch had an ice cream addiction.
LATIF: He loved ice cream.
BOB BLAEMIRE: Which was the bane of my existence for many years.
LATIF: Why? Wait, why?
BOB BLAEMIRE: Because you're always on a tight schedule. And he would see a Dairy Queen and we had to go there. He carried a spoon in his briefcase. Seriously.
ANNIE: [laughs]
LATIF: And then the other thing, which we already mentioned. He was really ambitious.
BOB BLAEMIRE: But he was a problem-solver. He would see something that needed to be fixed and go after it.
LATIF: And when he gets to the Senate in 1963, he immediately has a problem. I mean, it's a kind of petty, personal problem, but he is put on the Judiciary Committee because he'd gone to law school. But as a junior member, he doesn't get to chair a subcommittee. Which sounds like, who cares?
ANNIE: Sounds very boring.
LATIF: Sounds very boring.
ANNIE: But that's what people want?
LATIF: Yeah. Because that's how you actually get a little slice of power in Congress. And how you can actually do things.
ANNIE: Okay.
JAY BERMAN: Well, what happens is there was a subcommittee on constitutional amendments.
LATIF: And it was kind of a dud of a committee.
JAY BERMAN: It didn't do a lot of work.
JILL LEPORE: It was known as the graveyard where proposed amendments go to die. But the chair of the subcommittee suddenly dies.
LATIF: So the guy in charge of all the subcommittees is like, "All right, I'm gonna shut it down. We're just, like, spending money on this thing. It's pointless." But Birch, when he finds out about this, he goes straight to the guy in charge and he's like ...
JAY BERMAN: "Hey, don't worry about these budgetary concerns. I'll finance the committee out of my own Senate office budget."
LATIF: And Birch is just telling him, like, "Hey, come on."
BOB BLAEMIRE: "It's available now."
LATIF: "Nobody wants it."
BOB BLAEMIRE: "Let me have it."
JILL LEPORE: "I need something to play with."
LATIF: Because he's just looking for something to grab onto.
JILL LEPORE: Yeah. He doesn't have, like, a big plan for the Constitution. He's not that guy.
LATIF: But he's a charmer, so eventually the guy said, "Sure. Birch, you can have it."
BOB BLAEMIRE: And it changed his life and it changed our country.
LATIF: Because two months later—bang.
[ARCHIVE CLIP, Walter Cronkite: Here is a bulletin from CBS news.]
LATIF: November 22, 1963.]
[ARCHIVE CLIP, Walter Cronkite: Three shots were fired at President Kennedy's motorcade in downtown Dallas.]
JILL LEPORE: John F. Kennedy is shot and killed.
[ARCHIVE CLIP, Walter Cronkite: Vice President Lyndon Johnson will be taking the oath of office shortly and become the 36th president of the United States.]
LATIF: Two weeks later in the New York Times there's an article with the headline, "Succession Problem."
JAY BERMAN: About how the terrible assassination of President Kennedy raised an issue of what if a president became disabled?
LATIF: Because Kennedy ...
JAY BERMAN: He didn't die immediately.
LATIF: What if he'd gone into a coma or been brain dead?
JAY BERMAN: So disabled that he could not have carried out the duties of the president.
LATIF: Duties that could include the power to launch nuclear weapons.
BOB BLAEMIRE: There was nothing in the Constitution on this.
JILL LEPORE: People were like, "Shoot, we don't have a plan for this."
LATIF: Which was a problem. But ...
[ARCHIVE CLIP: Hey, look him over.]
LATIF: ... there's Birch.
BOB BLAEMIRE: The chairman of the Subcommittee of Constitutional Amendments.
LATIF: And this seems like a Constitution-level problem.
BOB BLAEMIRE: "Let's fix it. We've got a problem. Let's fix it."
JILL LEPORE: But ...
LATIF: Another problem. Passing a Constitutional amendment is, like, the hardest thing you can do as a politician.
JAY BERMAN: Because you're required to get two thirds of the House.
LATIF: Two thirds of the Senate.
JAY BERMAN: And three fourths of the state legislatures.
LATIF: All of them.
JAY BERMAN: Not an easy thing to do.
LATIF: But Birch ...
JAY BERMAN: He took that as a challenge.
JILL LEPORE: And he's got dimples.
LATIF: He's got charisma.
JAY BERMAN: Unbelievable political skills.
JILL LEPORE: And one of the things he did, he went to the American Bar Association.
LATIF: He pulled in lawyers, political scientists.
JAY BERMAN: To try to build a coalition.
LATIF: To get non-partisan support behind him so he can take this amendment, go to both parties and say ...
BOB BLAEMIRE: "It's just logical."
LATIF: "This amendment is ..."
BOB BLAEMIRE: Simple.
JILL LEPORE: Easy. It's kind of a no-brainer amendment.
LATIF: "We've got a problem."
BOB BLAEMIRE: "Let's fix it."
LATIF: So he takes his amendment, he goes to the House, the Senate, all the state legislators.
JILL LEPORE: And overwhelmingly ...
LATIF: It passes!
ANNIE: Yay!
LATIF: A whole brand new amendment to the Constitution.
JAY BERMAN: And that is the 25th Amendment—presidential inability and succession.
LATIF: Now the kind of interesting thing is that if you have—have you heard of the 25th Amendment before?
ANNIE: No.
LATIF: No. Okay, so ...
[ARCHIVE CLIP: We're calling on Vice President Pence to invoke the 25th Amendment.]
LATIF: ... it came up a lot during both the Trump presidency and ...
[NEWS CLIP: ...reportedly calling on Biden's cabinet to invoke the 25th Amendment.]
LATIF: ... it has come up a lot during the Biden presidency.
[NEWS CLIP: Which would possibly remove him from office.]
LATIF: ...of, like, "Oh, look at this guy, he's so old and he's so irrational, da-da-da, and we should use the 25th Amendment to unseat this guy." Or whatever. Right?
ANNIE: Mm-hmm. Okay.
LATIF: Like, it's this sort of political weapon now, right? But initially it was not supposed to be that. It was not political. It was just practical.
[ARCHIVE CLIP, Birch Bayh: Writing the 25th Amendment to the Constitution is one of the ways I have been able to serve both Indiana and the nation.]
LATIF: And for Birch, you know, this young ambitious guy, like, this is a huge deal. Like a founding father-level achievement. He's still in his 30s.
ANNIE: Birch Bayh. What's his theme song?
LATIF: "Hey, look him over."
ANNIE: He's just singing it to himself in the graveyard.
LATIF: [laughs] That's right.
ANNIE: [singing] "Check me out ..."
LATIF: Okay, so he passes this constitutional amendment. And Jill says because it's so hard to pass an amendment ...
JILL LEPORE: Once one happens, people are like, "Oh, I forgot you can amend the Constitution."
LATIF: And all of a sudden it's like a window opens ...
JILL LEPORE: And there's a burst of amendment activity.
LATIF: And suddenly Birch's graveyard became like a dance club that everybody wanted to get in, and he's the bouncer. You know what I mean?
ANNIE: I was thinking, like, Candyland.
LATIF: Yeah. He's the candyman, and everyone wants into the Candyland.
ANNIE: I sort of feel like he's more of a candy guy than a dance club guy.
LATIF: For sure. Sure. Fair.
LATIF: But yeah, so all of these people are coming to Birch with these ideas for what they want to see in the Constitution, including the new president, Lyndon B. Johnson.
JAY BERMAN: And he says, "Well, you know, you just passed a constitutional amendment. We'd like you to be the sponsor of one that we want, which is to eliminate what we call the 'faithless elector.'"
ANNIE: Faithless elector?
LATIF: Faithless elector.
ANNIE: Like without religion?
LATIF: No. But okay, so here we are actually finally getting to the thing of electing a president.
ANNIE: Okay! [laughs]
LATIF: So most people don't actually realize this, but when you vote for the President of the United States, you're not actually voting for the President of the United States. You're voting for someone who then votes for the President of the United States.
ANNIE: Oh.
LATIF: So those people are called 'electors.' And basically how this goes is, like, you vote in your state, your state has a certain number of these electors, and then the electors take a pledge to vote for the candidate who got the most votes in your state.
JAY BERMAN: But a pledge is a pledge. And it could be broken.
LATIF: In the history of US presidential elections, approximately 156 electors have broken that pledge ...
ANNIE: What?
LATIF: ... and either not voted or have voted for a different candidate.
ANNIE: No!
LATIF: Essentially have acted as faithless electors. And Johnson, for a lot of reasons, just thought, "Okay, this is a problem. And Birch, you're a problem solver."
JAY BERMAN: "So we'd like you to eliminate electors, and therefore the prospect of a faithless elector."
LATIF: And Birch said ...
JAY BERMAN: "Sure, I'll introduce it as a constitutional amendment." But what happened?
LATIF: What happened was once Birch started holding these hearings on faithless electors, he started learning more and more about the Electoral College—about how it came to be, about why we still had it. And the more he learned, the more he became sort of radicalized, convinced that this system, the Electoral College ...
JILL LEPORE: That it's a ticking time bomb.
LATIF: And that somebody had to stop it. That's coming up after the break.
LATIF: Latif.
ANNIE: Annie.
LATIF: Radiolab. Okay, before we get going, I'm curious. What do you—what do you, as a Canadian here on a visa—what do you know about the Electoral College?
ANNIE: Okay, well I guess when I first got here, I thought this is probably a school you go to when you want to become president.
LATIF: It's a college. It is ...
ANNIE: Ivy league, probably.
LATIF: That was my first question about it. Why is it called "college?" But you know what it is? It's like—so the use of the word "college" here—this is a total tangent. It's college like—you know how they have, like, the college of cardinals, or the college of surgeons or whatever? It's like "college" is just like—the meaning is just a group of people.
ANNIE: Oh, like a pod of whales.
LATIF: It's like a pod of whales. Yes. Exactly. Okay, so we left off, Birch Bayh is now focusing his problem-solving gaze on the Electoral College. He's having these committee hearings, and he's learning—right—why it exists, what it does, how it works. And so I think for us to be able to understand why all of this radicalizes him, we have to learn what he learned. We have to go back and understand the Electoral College.
ANNIE: Okay, let's go.
LATIF: Let's go. Let's go all the way to the beginning, to explain ...
ANNIE: I thought we had started, but it sounds like we haven't even started yet.
LATIF: No. We haven't even started.
ANNIE: That's amazing.
LATIF: It's so wonky.
ANNIE: Let's start.
LATIF: But we're ready. You have me. I'm your—I'm your Candyman.
ANNIE: [laughs] I'll follow you anywhere.
LATIF: Okay. All right. So here we go. So here we are in the Candyland that is Philadelphia, 1787. The Constitutional Convention. And the founding fathers are like, "We're starting this new country. We're very excited about it. The thing we can all agree on is we do not want a king. But we do kind of need someone to be in charge, so we're gonna have this person called the president."
JILL LEPORE: But how are we gonna choose the president?
LATIF: That would require some thought.
ALEX KEYSSAR: Can I pause and take a little sip of Coke, here?
LATIF: Yeah, of course. Go for it.
LATIF: By the way, this is Alex Keyssar.
LATIF: Also, I should say, even in our first conversation, when I was talking to Jill ...
JILL LEPORE: So there's a great book by Alex Keyssar called, Why Do We Still Have the Electoral College?
LATIF: ... she brought you up. And then basically every other interview we've done for this story, people have brought you up.
ALEX KEYSSAR: That's what I tried to do in that book. [laughs]
LATIF: So he wrote the book, Why Do We Still Have the Electoral College? And he's also a professor of history.
ALEX KEYSSAR: And social policy at Harvard University.
LATIF: But okay.
ALEX KEYSSAR: So anyway, they—they couldn't agree on a method of choosing the president.
JILL LEPORE: And so there were some ideas on the table.
LATIF: One idea was, "Well, we just came up with Congress."
JILL LEPORE: "All right, well, Congress should just elect the president."
ALEX KEYSSAR: But that's a bad idea. Then you lose separation of powers and checks and balances.
JILL LEPORE: "Then the president will be answerable to Congress. When he runs for re-election, he needs to have their favor. That's stupid. We can't do that. Dumb idea. Thanks very much."
LATIF: So someone else in the room says, "Well ..."
JILL LEPORE: "What about the people?" And everyone's like, "No. Can't do that!"
ALEX KEYSSAR: Look, you know, how is Farmer Johnson in a distant county ...
LATIF: ... gonna know about some guy from Virginia running for president?
JILL LEPORE: It's 1787. People didn't know anybody beyond their own neighborhood or town.
LATIF: So what they decided to do ...
ALEX KEYSSAR: Was to take a break for a week.
LATIF: They just left Philadelphia.
ALEX KEYSSAR: George Washington went fishing for the week.
ANNIE: What?
ALEX KEYSSAR: And they left behind a committee called—and you'll like this. It was called the Committee on Unfinished Parts.
ANNIE: I kind of love that.
LATIF: Right? Okay, so these founders, most of whom you've never heard of, weeks later, they are still stuck there in Philadelphia.
ANNIE: All the cool guys are fishing.
LATIF: All the cool guys are out fishing and doing other stuff and they have to figure this out.
ALEX KEYSSAR: To get this thing done. They wanted to get it sent to the states.
LATIF: So they're like, "Okay, how do we do this? How do we pick a president? How do we do this?" And then they figured it out. They were like, "Okay, how about we just copy-paste Congress?"
ANNIE: What—what does that mean?
LATIF: Well, it ...
ANNIE: How do you copy-paste ...
LATIF: Right, right.
ANNIE: Like, just plagiarize?
LATIF: They're not gonna plagiarize. They're just like, "Okay. We know everybody's already agreed on Congress, right?" There's been a lot of debate, there's been a lot of arguing. But what they did to make a government that everybody agreed on, to make Congress, is they started putting thumbs on scales for different groups of people.
ANNIE: Thumb on a scale. Go over it for me.
LATIF: Okay, so one of the thumbs is they make the Senate, and they say every state, doesn't matter if you're big or small, you get two senators.
ANNIE: Hmm.
LATIF: And so that's a little thumb on the scale for the small states that don't have a lot of people in them, so that they aren't completely overrun by the big states.
ANNIE: Okay.
LATIF: The other thumb is for the South. They say, "Okay, you can count an enslaved person in your state as three-fifths of a person. That way you boost the population of your state, and you get more representatives in the House.
ANNIE: Oh!
LATIF: That was the other thumb, to give more power to the South so they weren't overrun by the North.
ALEX KEYSSAR: You know, you can imagine them sitting there. "Okay, so how do we choose a president? Well, the big states have more influence than small states. You know, and what about slaves? And then we're gonna reopen that whole thing? No, we're gonna import the whole thing." So what the Electoral College is is, in some respects, a replica of Congress. If you think about it, each state has electors equal to the number of representatives, plus the number of senators. Okay? And then the electors would convene in their state capitals and cast their electoral votes.
LATIF: So the committee's like "Bingo, job done."
ANNIE: That sort of seems smart to me.
LATIF: It is. Under the circumstances, very clever solution.
ANNIE: Yeah.
LATIF: So that—that all is stuff they put in the Constitution, right? So it's like there's this body of electors that vote for the president. Each state has a certain number of electors based on how many representatives they have in Congress. All of that is in the Constitution. What is not in the Constitution is how to convert the people's votes in the state into electoral votes. Do you do it proportionately?
ALEX KEYSSAR: Where if you get 53 percent of these states' vote ...
LATIF: You get 53 percent of the electoral vote.
ALEX KEYSSAR: Right. Right.
ANNIE: Mm-hmm. Mm-hmm.
LATIF: Or you could do it by district. Each district in a state gets an electoral vote. But ultimately the founders are like, "We're gonna let the states decide."
ANNIE: That makes sense. That's, like, an important part of this country is that the states are making big decisions.
LATIF: That is an important part of this country, yeah. True. But that might be the biggest mistake they made in this whole process. And Alex says there is this pivotal moment pretty early on, where the system we now have starts to really take shape.
ALEX KEYSSAR: In the 1800 election ...
LATIF: Between these two sort of juggernauts in the history of this country, Adams and Jefferson.
ALEX KEYSSAR: Now they have also run against each other in 1796.
LATIF: And in that election, which Adams won ...
ALEX KEYSSAR: Adams had gotten an electoral vote from the state of Virginia, Jefferson's state.
LATIF: Because Virginia was doing district voting. Adams had won a district, so he got a vote.
ALEX KEYSSAR: But in 1800, the Virginia legislature didn't want that to happen again. They saw a close election coming.
LATIF: And so the Virginia politicians got together and passed a state law that said, "Okay, we're done with this district system. From now on, the way our electors will vote will be ..."
ALEX KEYSSAR: Winner take all.
LATIF: If you win the majority of the votes in this state, all of our electors will cast their votes for you. And the Virginian politicians, they did this because they knew Jefferson was gonna win a majority of votes in their state, and this way, he wouldn't leave any on the table.
ANNIE: That's a little dirty.
LATIF: A little dirty.
ANNIE: I don't know, sounds a little smelly.
LATIF: Yeah, the candy has gone smelly.
ANNIE: [laughs] Yeah.
LATIF: Because what they're doing is erasing all of the votes of the people who voted for Adams.
ALEX KEYSSAR: Yeah. No, exactly. And what's interesting when you look into the documents of it, is they passed that law and then they attached to it a kind of apology for doing it.
LATIF: Effectively saying ...
ALEX KEYSSAR: "We know this isn't really good or fair."
LATIF: "We know this would be better for the country if we did not do this, but we're doing it anyway."
ALEX KEYSSAR: So after Virginia did this, shockingly, Massachusetts, John Adams' state, retaliated and did a version of the same thing.
LATIF: And Alex says after that, the states ...
ALEX KEYSSAR: They're off to the races.
LATIF: Another state does it, then another state does it. And this is basically what the system is now. And what that system leads to is the feeling that your vote just doesn't actually matter. Because, like, if you vote for someone for president and then 50 percent plus one people in your state vote for someone else, your vote doesn't get counted. Like, for president, it means ...
ANNIE: Thrown out.
LATIF: ... it's basically—it's effectively thrown out. And that is essentially happening to tens of millions of votes every presidential election.
ANNIE: Right. Hmm. Are you gonna make us feel better about voting by the end of this? Or ...
LATIF: Um, I think—I think so. I think so.
[ARCHIVE CLIP: It is with pleasure that I introduce senator Birch Bayh.]
LATIF: Because I kind of think of Birch and what he was trying to do as a sort of beacon of hope.
[ARCHIVE CLIP, Birch Bayh: Thank you very much Mark, members of the faculty and student body of UCLA. It's a privilege for me to have a chance to be here with you this afternoon and to share some of my thoughts.]
LATIF: So when Birch started holding those hearings in the mid-'60s on faithless electors, he's having all these different experts come in and testify about the whole history of the Electoral College, the fact that it wipes away all these people's votes, you know, all different kinds of things. But one of the things that these experts hit on over and over is that the system is actually fundamentally dangerous.
[ARCHIVE CLIP, Birch Bayh: You may say, "Well, why is it dangerous?" Well, basically it's dangerous—the most dangerous aspect of it is the fact that the present system, the Electoral College system, does not guarantee that the man who wins is the man that has the most votes.]
LATIF: And Alex says that's because when you have this winner-take-all system ...
ALEX KEYSSAR: It transforms the contest into a contest among states. Because once you have winner-take-all, then winning the state really matters.
LATIF: Winning as many people as you can doesn't.
[ARCHIVE CLIP, Birch Bayh: And because of this, the political leaders of both of our major parties know ...]
LATIF: You can lose the popular vote in the election ...
[ARCHIVE CLIP, Birch Bayh: It doesn't make any difference if you're soundly defeated ...]
LATIF: ... so long as you win the right states.
[ARCHIVE CLIP, Birch Bayh: ... you're going to have enough electoral votes to be elected President of the United States.]
LATIF: And this had almost just happened.
JILL LEPORE: In 1960. 1960 was one of those very close elections, where if, like, I think it was 20,000 or 30,000 votes had gone differently in a few states ...
LATIF: The loser of the popular vote ...
JILL LEPORE: Would have won, because of the Electoral College.
LATIF: And this is the thing that all the experts were saying was dangerous, which was the very thing that terrified Birch.
JILL LEPORE: Because I mean, we think of the United States as in a particularly fragile moment historically right now. But that was also the case in the 1960s.
LATIF: So remember, in '63 ...
[ARCHIVE CLIP, Walter Cronkite: Three shots were fired ...]
LATIF: ... President Kennedy gets shot and killed.
JILL LEPORE: It's the height of the Cold War. There is continual racial unrest and police brutality. By '68 ...
LATIF: It's the peak of the war in Vietnam.
[NEWS CLIP: "The whole world is watching," chants the crowd on this side.]
LATIF: There's a protest at the Democratic National Convention.
JILL LEPORE: Violence on the streets.
[ARCHIVE CLIP, Walter Cronkite: Dr. Martin Luther King ...]
LATIF: MLK Jr. is assassinated.
[ARCHIVE CLIP, Walter Cronkite: ... shot to death.]
LATIF: Robert Kennedy.
[ARCHIVE CLIP: Senator Kennedy has been shot. Is that possible? Is that possible?]
LATIF: So Birch, he's watching all of this unfold.
JILL LEPORE: And he's just really worried.
[ARCHIVE CLIP, Birch Bayh: When we have an Electoral College system ...]
LATIF: That if we have a system that can take the loser and make them a winner ...
[ARCHIVE CLIP, Birch Bayh: ... we tend to erode the confidence in the people of this country in their president and in their form of government.]
JILL LEPORE: That is his huge concern, that at some point in the future Americans will refuse to recognize the legitimacy of a president.
LATIF: And so once he came out of these committee hearings, learning what he did about the Electoral College ...
JILL LEPORE: He says, "You know what we need to do? We need to get rid of it. We don't need to tinker with it. We need to get rid of it."
JAY BERMAN: Yes. It should be one person, one vote.
LATIF: The direct popular election of the president.
JAY BERMAN: One person, one vote. It's the only plan that guarantees you that the candidate with the most votes will win.
LATIF: And from this point forward ...
JAY BERMAN: He devoted himself to this cause.
LATIF: To take the Electoral College and burn it to the ground! That's coming up after a short break.
LATIF: Okay. Latif.
ANNIE: Annie.
LATIF: Radiolab.
ANNIE: Back from break.
LATIF: Back from break. Can I tell you another fun fact about the Electoral College?
ANNIE: Latif, I would like nothing more.
LATIF: Okay, so take a guess, okay?
ANNIE: Okay.
LATIF: What is the least amount of the popular vote—what is the least proportion—percentage of the country that could vote for you where you could still win the Electoral College?
ANNIE: Uh, 49 percent.
LATIF: So you think 49 percent of people have to vote for you to win the Electoral College?
ANNIE: Forty percent. No, I don't know. I mean, because nothing makes sense. I mean, like, in a—yes, I would say forty-something.
LATIF: Twenty-three percent.
ANNIE: Wow!
LATIF: So if you get 50 percent plus one, in all the smallest states ...
ANNIE: Yeah?
LATIF: ... you could conceivably get 23 percent of Americans' votes and become the president.
ANNIE: Hmm. That is shocking.
LATIF: Isn't that crazy?
ANNIE: Yeah.
LATIF: Okay, so 23 percent, that would be—like, that has never happened.
ANNIE: Okay.
LATIF: What has happened five times, five times in the history of this country, a candidate has lost the popular vote but won the electoral vote and become the president. And besides those five times, it nearly happened in 1960. It nearly happened again in 1968. And so that year, 1968, Birch Bayh thinks, "Now is the time to launch this amendment to abolish the Electoral College."
JAY BERMAN: And having just done the 25th, he had some sense of it.
LATIF: And Jay, his chief of staff, said step one?
JAY BERMAN: Build a coalition.
LATIF: And so ...
[ARCHIVE CLIP: Please join me in a warm welcome for the Democratic senator from Indiana.]
LATIF: ... he's going to these non-partisan groups.
[ARCHIVE CLIP: Senator Birch Bayh.]
LATIF: Giving speeches ...
[ARCHIVE CLIP, Birch Bayh: It's extremely important ...]
LATIF: ... to the American Bar Association.
[ARCHIVE CLIP, Birch Bayh: ... that when the President of the United States is elected ...]
JAY BERMAN: The League of Women Voters.
LATIF: The chamber of commerce.
[ARCHIVE CLIP, Birch Bayh: ...we know with confidence that he is the President of the United States.]
BOB BLAEMIRE: Saying, "We have a problem, here."
LATIF: Again, Birch Bayh staffer, Bob Blaemire.
BOB BLAEMIRE: I'm telling you, it was so exciting.
[ARCHIVE CLIP: Senator Bayh has launched his campaign.]
BOB BLAEMIRE: He was on TV every night.
[ARCHIVE CLIP, Birch Bayh: Establishing a nationwide movement.]
[ARCHIVE CLIP: To do away with the Electoral College.]
LATIF: Hammering home this idea.
JAY BERMAN: Which was ...
[ARCHIVE CLIP, Birch Bayh: Each of us, whether we live in Rhode Island or Texas ...]
JAY BERMAN: ... one word ...
[ARCHIVE CLIP, Birch Bayh: ... Indiana, Alaska ...]
JAY BERMAN: ... equality.
[ARCHIVE CLIP, Birch Bayh: ... each one of us ought to have the same opportunity to elect a president. It ought to be one person, one vote, and it seems to me there's no excuse for any other system.]
JAY BERMAN: One person, one vote.
BOB BLAEMIRE: Everybody's vote should count the same.
LATIF: And by 1969 ...
[NEWS CLIP: Opinion polls show that around 80 percent of the people favor a more direct election of presidents.]
LATIF: ... 80 percent of Americans agreed with him.
[ARCHIVE CLIP, Walter Cronkite: Bayh intends to get Congress to pass a direct election law this year.]
LATIF: And so, 1969, his amendment goes in front of the House.
JAY BERMAN: And what happened was ...
LATIF: Boom!
JAY BERMAN: ... overwhelming!
LATIF: Huge victory. 339 to 70.
ANNIE: What?
LATIF: Easy pass.
ANNIE: Wow.
JAY BERMAN: Unbelievable.
BOB BLAEMIRE: It was just amazing.
ALEX KEYSSAR: I mean, right now, it would be extremely difficult to get a House vote of 80 percent to declare what day it was, or to declare Christmas to be a holiday. But ...
LATIF: As Alex Keyssar points out ...
ALEX KEYSSAR: ... then the action switches to the Senate. And in the Senate ...
LATIF: Birch hits a wall. A wall made up of two different groups of people. One of them was senators from small states.
JAY BERMAN: Now small state senators, mostly Republicans, said, "Oh, well we get two votes automatically because we have two senators." And that was the compromise made at the constitutional convention.
LATIF: Remember, those two senators was the thumb on the scale for the small states.
ANNIE: Right.
BOB BLAEMIRE: So I mean, think of Wyoming, Montana, South Dakota, North Dakota, these states that have these electoral votes and no voters.
LATIF: These two votes are a big deal.
JAY BERMAN: And the small state senators wanted to preserve these two electoral votes.
LATIF: So that was one group. And then the other group standing in his way were Southern segregationists. And they were against Birch's amendment because the Electoral College in a winner-take-all system gave them more power, while continuing to erase Black voters.
ANNIE: Hmm.
LATIF: It was almost like the same thing back at the convention with the three-fifths clause.
ANNIE: Okay.
LATIF: Because white segregationists could use the Black people in their state to count towards the state population, which gave them more electoral voters, more power. But at the same time, because of the system, the winner-take-all system, the overwhelming white majority would wipe out and erase the Black vote.
ALEX KEYSSAR: So it becomes something of an article of faith that the Electoral College is key to protecting the, quote, "Southern way of life."
JAY BERMAN: Senator James Allen of Alabama, he had a quote, something to the effect that, "The Electoral College is the South's only political advantage left. Let's keep it."
[ARCHIVE CLIP, Walter Cronkite: The Senate has refused to shut off debate to the proposed Constitutional amendment to elect presidents by direct popular vote.]
LATIF: And basically, because of these two groups of senators—small state Republicans and Southern segregationists—Birch's amendment gets stuck in the Senate, six votes short.
[NEWS CLIP: Six votes short of the necessary two thirds, and now electoral reform seems about ready to fall.]
LATIF: But there was one last hope, which came in the form of a very unlikely ally.
JAY BERMAN: Nixon.
BOB BLAEMIRE: Nixon.
LATIF: Republican president Richard Nixon.
[NEWS CLIP: Whether there will be any action up here on Capitol Hill, it depends pretty much on one man, Richard Nixon.]
LATIF: And Nixon, even though he got elected by the Electoral College, he had said ...
BOB BLAEMIRE: It's obsolete.
LATIF: "It's dangerous."
BOB BLAEMIRE: It should go.
JAY BERMAN: Right.
LATIF: And Jay says Nixon knew how popular Birch's amendment was. He had seen that House vote.
JAY BERMAN: So overwhelming.
LATIF: That right after it, Nixon ...
JAY BERMAN: Made a public statement saying, "In view of what the House has done, the only chance for reform of the present system is for the Senate to do the same thing."
LATIF: And Nixon, being a Republican president, maybe he could put some pressure on these Republicans who were blocking the amendment.
[ARCHIVE CLIP: It'll take all the political clout a new president can muster to keep this new Congress from sweeping electoral reform under the legislative rug.]
JILL LEPORE: But meanwhile ...
LATIF: Again, Jill Lepore.
JILL LEPORE: ... this other whole drama is unraveling in the Senate Judiciary Committee that Bayh could not have anticipated, which is that Nixon has a bunch of Supreme Court nominees that are gonna come before the Senate Judiciary Committee on which Bayh serves. And Nixon has pledged that he will appoint a Southerner to the Court.
LATIF: So early 1969, Nixon nominates a judge from South Carolina, Clement Haynsworth.
JILL LEPORE: And Haynsworth, he has this problem.
BOB BLAEMIRE: Haynsworth had made a number of decisions in which he had a financial interest. He owned stock in companies that he made decisions that helped those companies.
LATIF: And in the confirmation hearings, Birch ...
BOB BLAEMIRE: He had no intention of opposing Haynsworth.
LATIF: ... planned on voting yes, confirming Haynsworth.
BOB BLAEMIRE: And Birch kept saying, "I gave him every opportunity to say, 'You're right. You know, if I had to do it again, I would have recused myself.'" And he would never do it. He kept insisting he had done nothing wrong.
LATIF: And to Birch it was pretty clear that this guy, if not totally corrupt ...
ANNIE: We got personal, financial ...
LATIF: Yeah.
ANNIE: ... secrets.
LATIF: Yeah, and so Birch is like, "All right. This guy is not fit for the Court." And so ...
[NEWS CLIP: Good evening. In a severe setback to President Nixon, the Senate today firmly refused to confirm the Supreme Court nomination of Judge Clement Haynsworth.]
LATIF: ... Birch Bayh leads the charge against Nixon's Supreme Court nominee.
[NEWS CLIP: President Nixon was obviously not pleased by what the Senate did to his nominee.]
[NEWS CLIP: The president issued a written statement in which he expressed disappointment and anger over the Senate rejection of Haynsworth.]
[NEWS CLIP: Haynsworth, the tenth man in history to be so rejected, the first since 1930.]
ANNIE: Well if—so does that mean, like, what he's doing to Nixon here, is that gonna affect his efforts with the amendment stuff?
LATIF: At this point I don't think he knows.
JILL LEPORE: But Nixon says, "Goddamn. Goddamn Birch Bayh. I'm gonna go further south and farther right." [laughs] So he does. So he brings in his next Southerner, this guy Harrold Carswell, who's from Florida, who is further south and much farther right, but also happens to be completely unqualified for the Supreme Court.
[ARCHIVE CLIP, Birch Bayh: I have to tell you, I looked for a place to hide, but there was no one else there.]
LATIF: This is Birch, from an oral history from 2009 done by the University of Virginia's Miller Center, talking about the Carswell nomination.
[ARCHIVE CLIP, Birch Bayh: I have a good recollection how this all happened, because I'd been sort of commissioned to lead the charge here. I got together in my office all of the—all of the groups.]
LATIF: He said he got together union leaders, Jewish leaders, Black leaders.
[ARCHIVE CLIP, Birch Bayh: I remember going around the room and saying, "What do you think?" Now we knew then that Carswell, as a young 25-year-old, when he was running for the state legislature in Georgia, had said, "I yield to no man in my belief in white supremacy." We knew that. Was that enough?]
[ARCHIVE CLIP, interviewer: Pretty damning.]
[ARCHIVE CLIP, Birch Bayh: Well, but you know, everybody had—was exhausted fighting the Haynsworth thing. There was no stomach left for another battle. And as we went around the room, here are these people who had thrown themselves on the spears of the opposition to Haynsworth—said, "Well, you know, Birch, Senator, there have been a lot of changes in the South since then, and you know, Birch, you know, none of us want to be responsible for everything we said when we were 25." And it was that way all the way around until we got to Clarence Mitchell, who was the executive director of the NAACP. We got around to him and he said, "Well, gentlemen." It was almost as we were getting ready to leave. He said, "Gentlemen, I respect where you're all coming from, but in my lifetime of experience I've found that once a person ever feels that way, they never, ever really change their mind."]
LATIF: Birch says that when he went home that night, he couldn't sleep. He kept thinking about what Clarence Mitchell had said in that room. And in that moment, he didn't know what to do. Like, here's Nixon, a potential ally for his amendment.
BOB BLAEMIRE: Nixon had just been elected, okay? This is Nixon's first year as a president.
LATIF: And to shoot down another nominee of his ...
JAY BERMAN: It would have been the first time a president had had two nominees defeated in 76 years.
LATIF: It would humiliate Nixon, likely turn him against Birch, and kill ...
JILL LEPORE: The thing the country most needs.
LATIF: ... his chance at abolishing the Electoral College.
JILL LEPORE: And the thing the country least can see that it needs.
BOB BLAEMIRE: There were several times when he said, "If I do this, it's gonna hurt me over here."
LATIF: Like, where if he votes no it would hurt his amendment.
BOB BLAEMIRE: Yes.
LATIF: Or do you protect the highest court in the land, the most influential court, from having a white supremacist on it, for who knows how long? Like, which thing gives you the best outcome?
[ARCHIVE CLIP, Birch Bayh: And I was rolling and tossing. In fact, I got out of bed and crawled into bed in the guest room.]
LATIF: He didn't want to bother his wife, who was asleep. And he started thinking about, like, in their home they had their son Evan. And he'd always been telling Evan, "The way that we make change in this country is we work through the system. We always work through the system."
[ARCHIVE CLIP, Birch Bayh: Somehow or other it came to me that if my face was black and Evan's face was black ...]
LATIF: And this guy, Harrold Carswell, was sitting on the Supreme Court of the United States ...
[ARCHIVE CLIP, Birch Bayh: ... and I said, "Son, we're gonna work through the system," he'd say, "Dad, the system's already said what it thinks about us." So the next morning, I got my staff together and I said, "Come on, we're gonna rally the troops. I think we got 25 people who will stand up against this guy."]
[NEWS CLIP: Judge Carswell's nomination died today.]
LATIF: March, 1970, while his amendment is still stuck in the Senate, Birch leads the charge against Carswell.
JILL LEPORE: And single handedly destroyed his chance of confirmation.
[ARCHIVE CLIP, Walter Cronkite: The Senate dealt President Nixon another embarrassing defeat, rejecting his second Supreme Court nominee. The end of the long fight to confirm ...]
LATIF: And so Birch's amendment sits and languishes in the Senate six votes short. And Nixon, despite having come out publicly and said the Senate had to act on Electoral College reform, despite the fact that Nixon was the one last person who could maybe sway some of these Republican senators who were blocking Birch ...
JAY BERMAN: Nixon never lifted a finger.
LATIF: ... he didn't do a thing.
JAY BERMAN: He never ever ever called a single Republican senator and said "I'd like you to vote for direct popular elections."
[NEWS CLIP: Bayh was asked if it were true the White House is not helping because of his fight against the president's Supreme Court nominees, Haynsworth and Carswell.]
[ARCHIVE CLIP, Birch Bayh: Yeah, I'm not naive enough to suggest that it isn't a possibility, but that's a poor way to run a country.]
LATIF: Now we can't say for sure that Nixon was retaliating against Birch, but what we do know is that a few years later it was made public that Nixon kept a list of his political enemies. And the very first name on that list is Birch Bayh.
ANNIE: No!
LATIF: And that's the thing: had Birch not tanked Nixon's nominees, maybe Nixon would have pushed some senators around, and maybe quite possibly today we would have in the USA a totally different way of picking our president.
JILL LEPORE: Because one thing is true, if it had gotten through that vote in the Senate—it had already passed in the House—the support in the public was above 80 percent at that point. It would absolutely have been ratified.
LATIF: Instead, it fell six votes short, and that was that. But presidents come and go. A senator can stick around for a while. And Birch would ultimately get another chance at passing his amendment under another president, only this time he would find the people he thought he could count on, the people he thought were on his side, were suddenly standing against him. That's after the break.
LATIF: Latif.
ANNIE: Annie.
LATIF: Radiolab.
[ARCHIVE CLIP, Dick Cavett: Do you know that every time it seems that the Senate gets into a major squabble, my next guest is in the middle of it? He led the fight against the Haynsworth and Carswell nominations. Would you welcome the junior senator from Indiana, Senator Birch Bayh.]
LATIF: 1970, Birch's election amendment fails. But during the '70s, he goes on to do some pretty momentous stuff. He passes a different Constitutional amendment.
JAY BERMAN: The 26th Amendment.
[ARCHIVE CLIP, Birch Bayh: But the injustice of ...]
JAY BERMAN: Lowering the voting age to 18.
[ARCHIVE CLIP, Birch Bayh: ... the voting system that sends young men to Vietnam, where the cold statistics on the battlefield show that half of them who died in Vietnam weren't old enough to vote for the public official who sent them there. It seems to me this is not the type of democratic system we ought to be proud of.]
LATIF: That made for two amendments.
BOB BLAEMIRE: Making him the only person since James Madison of the founding fathers to write more than one constitutional amendment.
ANNIE: Wow. That's amazing. Was the voting age 21 before?
LATIF: Yeah. Also ...
BOB BLAEMIRE: He wrote Title IX.
LATIF: Have you ever heard of Title IX?
ANNIE: No.
LATIF: It's mostly known for women's college sports.
JAY BERMAN: But it had to do with the real issue of women in higher education.
LATIF: It's this legislation that basically says that any school that gets any public funding needs to treat men and women equally.
ANNIE: Hmm.
BOB BLAEMIRE: It changed the country.
LATIF: But throughout all of this, the thing that he is just obsessing over, and that he thinks would be his biggest legacy, is abolishing the Electoral College. And in the late '70s, he thinks he has his best shot at doing it. And that's because ...
[ARCHIVE CLIP, Richard Nixon: Good evening.]
LATIF: ... Republican Richard Nixon ...
[ARCHIVE CLIP, Richard Nixon: I shall resign the presidency, effective at noon tomorrow.]
LATIF: ... Watergate happened. So he's out of office. Now ...
[ARCHIVE CLIP: ... James Earl Carter ...]
LATIF: Jimmy Carter ...
[ARCHIVE CLIP: ... elected the next President of the United States.]
LATIF: ... a Democrat from the South, is now the President of the United States. When he takes office, one of the first things he does ...
[ARCHIVE CLIP, Walter Cronkite: President Carter sent Congress today a big package of proposed election reforms.]
LATIF: ... is he tells Congress ...
[ARCHIVE CLIP, Walter Cronkite: It included an abolishment of the Electoral College.]
LATIF: "We need to get rid of the Electoral College."
ANNIE: Hmm.
LATIF: And in the late '70s, he was set up to do that, because now his party, the Democrats, had this big majority in the Senate.
ANNIE: Clear sailing. Smooth sailing ahead.
LATIF: Right. They think they have the votes. But as Birch is getting ready to bring his amendment back to the Senate ...
JAY BERMAN: A whole bunch of rabbis ...
LATIF: Leaders of Jewish organizations ...
JAY BERMAN: ... in New York and in California and other places.
LATIF: ... had started teaming up with leaders in the Black community.
FREDERICK WILLIAMS: And they have joined the conservative South in support of the Electoral College.
ANNIE: What?
FREDERICK WILLIAMS: I didn't know if I was having a nightmare.
LATIF: This is another former Birch Bayh staffer, Frederick Williams.
FREDERICK WILLIAMS: Yeah, they didn't have to co-calculate that, you know? He had no idea those guys were going that way.
LATIF: He's like, we—like it's very much an "Et tu, Brutus?" kind of a moment, right?
ANNIE: Yeah. Totally.
FREDERICK WILLIAMS: It made no sense.
ANNIE: Okay, well why are they—like, why would they do that?
ALEX KEYSSAR: Well, because there was a belief in parts of the African-American community, which is that the Electoral College advantaged Black voters because—and this was the theory—that Black voters were swing voters in swing states.
BOB BLAEMIRE: There were a number of Jewish leaders that argued the same thing, that, "We have this impact on how New York goes and how Florida goes."
LATIF: Wait, can you—can you spell that out a little bit more? Can you explain that?
BOB BLAEMIRE: What they're saying is that, "If we as a bloc—" you know, Blacks for instance typically had been voting 90 percent for the Democrats—if their votes can tip which way New York goes, or Florida or Illinois or some other state, then they're having a real impact on the Electoral College vote.
LATIF: Because those states, like, New York used to be a swing state?
BOB BLAEMIRE: Yeah, California too. Mississippi too.
LATIF: And so in these big, crucial swing states, Black voters and Jewish voters felt they had sort of an outsized power.
ALEX KEYSSAR: I mean, Jesse Jackson ...
LATIF: Prominent Black leader at the time.
ALEX KEYSSAR: ... proclaimed, you know, "The hands that picked the cotton have now picked the president."
LATIF: And this is kind of the thing about the Electoral College, especially in a winner-take-all system, is this possibility that a minority group like Black people or Jewish people or Hispanic people or even, like, labor unions, teacher unions ...
ALEX KEYSSAR: Many groups that you could name, could become the decisive votes.
LATIF: Any minority in the right state at the right time could become extremely powerful.
ALEX KEYSSAR: And thus, to switch to a national popular vote would remove that power.
LATIF: And whatever group you belong to, you would just go back to being a tiny minority in the country as a whole. And the fear was from these Black leaders and Jewish leaders in the 1970s is that political parties could then just ignore them. And there's this amazing moment in a committee hearing on Birch's amendment. And Birch is obviously present for it. The leader of the National Urban League, a very prominent organization, Vernon Jordan, testified at the committee hearing. And he opens his testimony by saying, "Me and Senator Birch Bayh are very close personal friends. Senator Birch Bayh has been a friend to Black people in this country. But I am here to say we do not support this amendment." And he goes on to basically say, "We as a people have been denied power in this country for over 200 years. And now that we finally have some, you're trying to curb it." And basically goes even further to say if we were to support this switch to the national popular vote for president, our voting power would quote-unquote "melt away."
HARRY ROTH: You know, just to defend Vernon Jordan, his argument wasn't a hundred percent just, "Hey, Black people are in these states, so we have some power." He has a good quote too. He said, "The Electoral College system acts as a break to extremism."
LATIF: So we also did speak to this guy, Harry Roth.
HARRY ROTH: I'm director of outreach for Save Our States.
LATIF: A pro-Electoral College organization.
HARRY ROTH: We defend the Electoral College system, trying to educate lawmakers and their constituents.
LATIF: And we reached out to him because we saw he wrote an essay about this moment when Black leaders and Jewish leaders were coming out against Birch's amendment.
HARRY ROTH: You know—and,I mean, I wouldn't say 1979 was the height of racism in America, but you know, Vernon Jordan, National Urban League, they were around for a while. They saw how bad things could get and, you know, they feared a racial demagogue who hates Blacks, coming in and winning the presidency by maybe getting enough support from white voters in a time like that. But with the Electoral College, that makes it much more difficult. You have to pay attention to Blacks. You have to pay attention to Jews who—I think Jews make up one percent of the population, but Jews make up what percentage of New York? A very—you know, a decent percentage of at least New York City. So they're important in a state like that. You can't—it's gonna be hard to win New York if you're just attacking Jews left and right.
ANNIE: Oh, okay. So, like, it sounds—so, like, Birch is just sort of taking this in, sort of like taking these arguments in. What does he do with them? Like, what does he do next?
LATIF: Well ...
FREDERICK WILLIAMS: I got a call at, like—it must have been between 6:30 and 7:00 in the morning.
LATIF: ... Frederick says when Birch first learned about this opposition, that, you know, all these people were flipping on him ...
FREDERICK WILLIAMS: He said, "Please be in the office at 8:00. We have to deal with this."
LATIF: And it's hard to say exactly which meeting this occurred at and when it took place, but Birch tells this story of when a man from a prominent Black organization and a man from a prominent Jewish organization came to his office, sat down with him and told him ...
FREDERICK WILLIAMS: Direct popular election is not good for us.
LATIF: That this hurts us in all sorts of ways, and we're not letting you pass this. Just—they even ask him to withdraw it.
JAY BERMAN: And Birch says "I've worked my whole life voting for measures to make you equal to everybody else. And you're sitting in my office telling me that you want your vote to count for more? Get the hell out of here."
ANNIE: Wow!
LATIF: And Frederick says he would later talk to that same Black leader, the one Birch kicked out.
FREDERICK WILLIAMS: And saying, "Lookit, lookit man, the senator's been with you all the time, going all the way back to Carswell and Haynsworth. What are you doing here?" He says, "Well, we have no permanent friends and no permanent enemies, just permanent interests."
LATIF: So basically what happens is these same Black, Jewish leaders kind of just go down the hall of the Senate and start knocking on doors.
ALEX KEYSSAR: Of a handful of liberal Democrats from big states.
LATIF: And those liberal Democrats—including a young senator from the small state of Delaware, Joe Biden—vote against Birch's amendment.
ANNIE: Hmm.
LATIF: And so in 1979, once again his amendment fails. But this time, the wall that stops him is liberal Democrats, the few remaining segregationists, and small state Republicans.
LATIF: Was—like, I don't know the degree to which you can say but, like, was that objectively true that they had more clout or sway as minority groups under Electoral College, versus how much they would have had in the popular vote?
ALEX KEYSSAR: It was probably true in the 1976 election when Carter ran. But it certainly wasn't true as a broad pattern, and it was clearly evident within a very few years that it—it simply was not a dominant pattern or a clear pattern.
LATIF: Oh, wow. So it was like a truth with a shelf life?
ALEX KEYSSAR: Yeah, a very short shelf life.
ANNIE: Hmm. Okay, so, like, what's—like, what's Birch's next step?
LATIF: So 1980, Reagan gets elected in a kind of landslide, and Birch loses his election. He's not in office anymore. And that's—that's the end of his career as a legislator.
JAY BERMAN: It's a sad story.
LATIF: I'm—okay, well that's a—because it sounds like you all were very productive. You all got a lot done.
JAY BERMAN: Well, Birch Bayh got a lot done. And we always described this as the one that got away.
LATIF: Like, this is the thing he would think about?
JAY BERMAN: Yeah, yeah. It was—he said it was his greatest regret.
LATIF: Huh. Wow.
JAY BERMAN: Yeah.
LATIF: And, you know, there's this moment in one of Birch's oral histories where he kind of—he almost, like, turns on himself and he asks himself, like, "What could I have done differently? What could I have done to keep that from happening?" And I don't know, like, from even what I've read, from what we've read, like, it doesn't feel like there was anything he could've done differently, because this was just—this is the thing about the Electoral College. It's distributing power, right? And that's the whole thing about the Electoral College, that he—Birch didn't like, that it was distributing power. He thought power should be equal.
LATIF: But—and that gets to this kind of central question of democracy, which is, like, should you put thumbs on scales? How do you do it, and for which people? And for how long? And who gets them and who doesn't? And how hard do you press that thumb down? Those are fundamental questions, and they're really hard questions to answer.
ANNIE: Yeah, totally. And it seems like once you do put a thumb on the scale, it's just so hard to take that thumb off.
LATIF: Yeah. Really hard. And Jill even pointed out that after Birch's amendment failed in 1979, like, that was kind of it.
JILL LEPORE: It is a kind of, you know, powerful pronouncement about the end of the campaign to abolish the Electoral College. Have we ever had a hearing on abolishing the Electoral College? Is there any—do we even still do public opinion surveys about it, you know? And the thing is, Birch Bayh was right that the more often a presidential candidate will win the Electoral College and lose the popular vote, the more likely it will be that at some point in the future, Americans will refuse to recognize the legitimacy of a president. And it doesn't matter which side you favor, you cannot favor an election where we can't all agree on the result.
[ARCHIVE CLIP: This election is close. Everyone knows that.]
[ARCHIVE CLIP: And in the race to 270 electoral votes, every vote matters.]
[ARCHIVE CLIP: If Harris were to get Wisconsin, Michigan, Pennsylvania ...]
[ARCHIVE CLIP: The Trump campaign would say, "We're going to put New Mexico in play. We're going put Virginia in play. We're going to put New Hampshire in play."]
[ARCHIVE CLIP: Today, Harris will visit the battleground state of North Carolina.]
[ARCHIVE CLIP: The candidates are fighting to win key Midwestern states.]
[ARCHIVE CLIP: South Asians in the state are the largest and fastest-growing Asian voting bloc there.]
[ARCHIVE CLIP: Like Michigan, both are determined to get as much of the union vote there as they can.]
[ARCHIVE CLIP: The Democrats, if they can see huge African-American enthusiasm, they'll continue to play there.]
[ARCHIVE CLIP: The Nebraska district that could, if it's close ...]
[ARCHIVE CLIP: This tells you.]
[ARCHIVE CLIP: ... swing the election.]
[ARCHIVE CLIP: Both campaigns agree. Look at all the spending in Pennsylvania. It's about evenly matched. Send Georgia, Michigan, Wisconsin, Arizona, North Carolina and Nevada. Are the Democrats behind in North Carolina? Waiting to see if they really mean it. Waiting to see if the Harris campaign will put significant money into North Carolina.]
LATIF: Matt Kielty and I reported this episode. Matt Kielty and Simon Adler produced it. Matt Kielty, Simon Adler and Jeremy Bloom contributed original music and sound design. Jeremy Bloom mixed it. Diane Kelly fact-checked it, and Becca Bressler and Pat Walters edited it.
LATIF: We first heard about this story from Jill Lepore, who is writing a book about the Constitution coming out next year. In the meantime, you can read her magisterial history of the United States, These Truths. We have links to that on our website, along with Bob Blaemire's Birch Bayh biography, Al Keyssar's book about the Electoral College and so much more. Even Birch Bayh's little jingle is on there—what an earworm that is.
LATIF: The last I have to say: if you're living in this United States and you are able to, please go vote, peer pressure others to do the same. Thank you so much for listening and good luck to us all.
[LISTENER: Hi, I'm David and I'm from Baltimore, Maryland. Radiolab was created by Jad Abumrad, and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Dylan Keefe is our director of sound design. Our staff includes: Simon Adler, Jeremy Bloom, Becca Bressler, W. Harry Fortuna, David Gebel, Maria Paz Gutiérrez, Sindhu Gnanasambandan, Matt Kielty, Annie McEwen, Rebecca Laks, Alex Neason, Sarah Qari, Sarah Sandbach, Arianne Wack, Pat Walters and Molly Webster. Our fact-checkers are Diane Kelly, Emily Krieger and Natalie Middleton.]
[LISTENER: Hi, this is Ellie from Cleveland, Ohio. Leadership support for Radiolab's science programming is provided by the Gordon and Betty Moore Foundation, Science Sandbox, a Simons Foundation initiative, and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.]
-30-
Copyright © 2024 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of programming is the audio record.
