WASHINGTON -- One thing the successful first year of Vice President Al Gore has done has been to quiet the concern over presidential succession that was heard in many quarters -- especially Democratic -- over having his predecessor, Dan Quayle, a heartbeat away from the presidency over the previous four years.
While Republicans have had their criticisms of Gore, they have not begun to approach the ridicule heaped on Quayle during his tenure as vice president. If fate were suddenly to elevate Gore to the Oval Office, it's unlikely there would be any great hue and cry. Unlike Quayle, he has managed to remain gaffe-free while getting high marks for serious responsibilities entrusted to him.
Perhaps that's why the hearing room was practically empty the other day when Chairman Paul Simon of the Senate Judiciary Subcommittee on the Constitution took up a question of concern to some presidential scholars: What would happen if both the popular winners for president and vice president in November died before the Electoral College met to tabulate the votes in mid-December, or before its results were formally counted and reported by Congress in early January?
The Constitution and pertinent amendments do not provide an unambiguous answer. For one thing, the winners are not officially the president-elect and vice president-elect until those votes are tabulated. Then there is always the risk of "faithless" electors going off on their own, not a serious matter to date but one that could grow if electors were faced with a deceased winner.
Former Sen. Birch Bayh of Indiana, who engineered the 1967 ratification of the 25th Amendment clarifying presidential succession and the filling of a vice-presidential vacancy, had no specific recommendations but did say that if something was to be done, it would be better to "do it now before there is a crisis, when you can do it dispassionately and non-controversially."
There is, however, considerable controversy within the political academic community already, as subsequent testimony indicated. Assistant Attorney General Walter Dellinger argued that existing law coupled with the record of legislative intent is probably adequate. He said party loyalty of electors "in all likelihood" would lead them to "cast their votes for a substitute (presidential) nominee chosen by the prevailing national party." If worst came to worst, he suggested, the House would decide, in accordance with the 12th and 20th Amendments.
Congress could, he said, easily lessen the risk by shortening the time between the election and the Electoral College tabulation, which was set at six weeks in days when transportation to each state capital was infinitely more difficult.
Two other witnesses, Professors Walter Berns of Georgetown and Akhil Reed Amar of Yale, suggested that in the event of the death of the presidential winner, the electors could simply cast their ballots for him anyway, and then the normal succession of the vice president would occur.
If both election winners died, Amar suggested that the Electoral College tabulation could be postponed four weeks, during which the Census Bureau could circulate a "wholly nonbinding" preference poll "for whatever political weight the Electoral College members choose to attach to it." (Don't hold your breath on that one.)
At another point, the professor observed that "if the Electoral College has any function at all today, it is precisely to deal with the case at hand as a proxy for the people." Another paper before subcommittee, from Professor Lawrence Longley of Lawrence University in Wisconsin, offered a simpler solution -- throw out the "fatally flawed" Electoral College altogether in favor of popular-vote election. That would make the winner president-elect on the spot in November, with the vice president-elect positioned to succeed him if fate dictated, and the presidential succession act, with the House Speaker next in line, applying if necessary after that. Simon says he may introduce some legislation this year. But with the public slipping back into its slumber over what some have called an electoral "time bomb," it's likely to just keep ticking.