By David Kurlander
Pro-Trump rioters on Wednesday breached the U.S. Capitol building while a joint session of congress was certifying the results of the presidential election. The violence came after 12 Republican Senators pledged to join with a House cohort to invoke the seldom-used 1887 Electoral Count Act, which triggers two hours of floor debate to resolve any election objections. The Act, which emerged in response to the nasty, House-decided 1876 election, was not used until 1969, when a right-wing faithless elector from North Carolina set off a reckoning about the nature of conservatism, the media, and the definition of democracy that feels all-too-relevant at this tense moment.
Richard Nixon won North Carolina and its 13 electoral votes on Election Night 1968, the first time the Tar Heel state had gone for a Republican presidential candidate since Herbert Hoover. North Carolina’s conservative turn, however, quickly tipped toward the reactionary. Conservative media mogul (and to-be Senator) Jesse Helms was creating a far-right TV powerbase out of Raleigh. Republican Hardee’s magnate and congressman Jim Gardner openly criticized the Civil Rights movement and flirted with supporting third-party presidential candidate George Wallace. Wallace, the segregationist ex-Alabama governor, ultimately carried five Southern states and finished just behind Nixon (and ahead of Democratic Party candidate Hubert Humphrey) in North Carolina.
One of North Carolina’s 1968 electors, Rocky Mount ophthalmologist Lloyd W. Bailey, became caught up in the movement, joining the zealously anti-Communist John Birch Society and devouring reactionary literature. Even so, Bailey initially planned to uphold his state’s decision to go for Nixon. He soon became wary, however, as he learned of Nixon’s plan to appoint Henry Kissinger as National Security Advisor and New York Senator Daniel Patrick Moynihan as a domestic policy advisor. Kissinger and Moynihan were members of the Council on Foreign Relations, the powerful think tank that Bailey—inspired by ex-FBI agent and conspiracy theorist Dan Smoot’s popular book, The Invisible Government—said was designed to “merge us with other nations under a one-world government.” Bailey was also given pause by Wallace’s resounding victory in his own district.
Bailey ultimately decided to throw his electoral vote to Wallace. His decision was not unprecedented. In fact, a single rogue elector had gone for segregationist candidates in the elections of 1948, 1956, and 1960. Bailey, however, sparked the ire of congressional Democrats who were eager to make a larger point about the vulnerability of the Electoral College amid the rising tides of extremism.
On January 6th, 1969, Maine Senator Edmund Muskie joined with Michigan congressman James G. O’Hara in triggering the Electoral Count Act to challenge Bailey’s switch. Muskie was a particularly unlikely defender of a Nixon electoral vote: he had been Humphrey’s running mate (and would be an infamous victim of Nixon’s “dirty tricks” during his own 1972 bid for the White House). Muskie and O’Hara claimed that their objection was designed to make a larger point about the Electoral College—to “dramatize the dangers of continuing to operate under this outmoded, haphazard, and undemocratic method of electing a president.” Although many congresspeople expressed support for election reform during the two-hour floor debate, both houses voted to uphold Bailey’s Wallace defection.
Two weeks after Muskie and O’Hara’s failed challenge, Bailey came to Washington to testify before the Senate’s Constitutional Amendments Subcommittee. The Chairman was Indiana Senator Birch Bayh, a Muskie ally already famous for his energetic involvement in both Title IX legislation and the 1964 Civil Rights Act. Bayh used his hearings, titled, “Electing the President,” to introduce Senate Joint Resolution 1, which called for the abolishment of the Electoral College in favor of direct presidential elections based on the national popular vote.
Much of Bailey’s testimony concerned his negative view of direct “Democracy,” in contrast to the more detached representative government of Republicanism. Bailey believed that, particularly surrounding elections, the electoral system ensured that decisions were carried out “by informed people.” The doctor took his definition of “democracy” from a 1928 U.S. Army Manual: “Government of the masses…[which] results in mobocracy and [whose] attitude toward property is communistic.” Bailey noted with a conspiratorial flourish that the 1952 version of the Manual had a different definition with a more positive framing, something he found “very strange indeed.” Bailey also railed against the coverage of his decision in the New York Times, arguing that the paper had ignored a statement of his rationale and a copy of The Invisible Government that he sent them.
In a remarkable exchange, Bayh pressed Bailey on the implications of his media criticism. “Do you feel there is a national conspiracy of some kind, in which the news media is involved?” “Well, it would appear so,” Bailey responded. “I cannot prove this, but the evidence is pretty clear to me.”
News reaction to Bailey’s statement was critical indeed. Columnist David Broder wrote in the Washington Post, “The good doctor proved to be a man so totally candid and so splendidly self-righteous that he showed the present system for what it is—not just awkward but dangerously absurd.” Newsday’s Clayton Fritchey argued that Republicanism and Democracy went hand in hand, and that the Amendment system existed to “enlarge the democratic process as the young nation gained experience,” which he noted had led to the abolition of slavery, the direct election of Senators, and the enfranchisement of women.
Even with the news derision, Bailey’s defense of the Electoral College roused some on the Committee. South Carolina Senator Strom Thurmond, the ranking member, and North Carolina Senator Sam Ervin (who would gain widespread fame three years later for his role overseeing the Senate Watergate hearings) were particularly spirited in their support of the system. Thurmond even suggested further freeing electors from their states, which he thought could “take the Presidency out of politics.” Thurmond, of course, was another segregationist who himself had received the 1948 rogue electoral vote when he ran an insurgent presidential campaign against President Harry Truman.
Congressional Democrats, with Bayh at the helm, would unsuccessfully push for a direct election amendment in various forms for more than a decade. And far from countering “mobocracy,” Bailey’s stubborn protection of his Wallace vote seems all the more suspect after the scene at the Capitol yesterday. Perhaps the Bailey saga was an alarm bell whose sound is only starting to be fully heard today.
For more on Bailey, check out the recent article “Congress and the Case of the Faithless Elector” on the House of Representatives history blog. To learn more about the journalistic response to Bailey’s defection, read David Broder’s 2000 Washington Post reflection on his coverage of the incident. And to learn about Birch Bayh’s legislative legacy, read his aide Robert Blaemire’s excellent new biography, Birch Bayh: Making a Difference.
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