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A Bayh-Gone Era

Birch Bayh’s passing reminds us of a time in American history when major constitutional reforms seemed possible.

March 28, 2019

It is a record that may never be broken, like Cy Young’s 511 major-league victories or Wilt Chamberlain’s 100 points in a basketball game.

Former Indiana Senator Birch Bayh, who died recently at 91, standards as the first lawmaker since the 18th century to have written two constitutional amendments. And if the recently revived Equal Rights Amendment is ever ratified by the required 38 states, Bayh will have achieved the constitutional hat trick.

A Democrat from a reliably Republican state, Bayh was elected to the Senate in 1962 with the aid of a campaign song whose lyrics were freely adapted from a Broadway musical starring Lucille Ball: “Hey, look him over, he’s your kind of guy/His first name is Birch and his last name is Bayh.” As a junior senator on the Judiciary Committee, Bayh took over the chairmanship of the seemingly backwater subcommittee on constitutional amendments.

It was a fateful union of senator and subcommittee gavel.

Bayh came to Washington during one of those rare periods in American history when politicians in both parties were receptive to constitutional reform. Before Bayh reached the Senate, Congress had already sent to the states for ratification the 23rd Amendment (presidential vote for District of Columbia residents) and the 24th Amendment (abolition of the poll tax).

Bayh’s first achievement was the complex 25th Amendment (approved by Congress in 1965 and ratified in 1967) on dealing with a midterm vice-presidential vacancy and the handling a crippling presidential disability. While often invoked by liberals fantasizing about removing Donald Trump from office on psychological grounds, the disability provisions only would work if there were a bipartisan consensus that the president was physically incapacitated.

Far more influential so far has been the section of the amendment mandating that Congress should fill vice-presidential vacancies rather than retaining the House speaker as next in the presidential line of succession. As a result of Bayh’s handiwork, Gerald Ford (chosen by Congress in 1973 to replace the disgraced Spiro Agnew) moved into the Oval Office when Richard Nixon resigned in 1974. Without the 25th amendment, erratic House speaker Carl Albert instead would have become president at the height of the Cold War.

Bayh’s other legislation, the 26th Amendment, granted 18-year-olds the right to vote in all elections and was a much more straightforward matter. Congress had tried to extend the franchise through legislation, but the Supreme Court narrowly ruled in 1970 that the law did not apply to state elections. The solution was a congressionally approved constitutional amendment that zipped through state legislatures so fast that it took only three months to win ratification in 1971.  

Not all of Bayh’s constitutional dreams were added to the document on display at the National Archives. Despite fears aroused by George Wallace carrying five states in the three-way 1968 presidential race, Bayh was unable to get an amendment eliminating the Electoral College through Congress. The amendment died in the face of a Senate filibuster by Southern segregationists who feared that direct election of the president would dramatically increase black turnout.

The following year, Bayh regained his footing as a constitutional architect when Congress approved the Equal Rights Amendment by lopsided margins. The vote was 352–24 in the House and 82–8 in the Senate. Within a year, 31 states had ratified what then would have been the 27th Amendment.

What made constitutional reform seem achievable back then? One factor that aided reform was that at that point both the Democrats and Republicans were big-tent parties with both conservative and liberal wings. That helped foster a bipartisan problem-solving mood in Congress, since — unlike today — few issues broke down on strict party lines.

Also, neither party saw the need to grub for narrow partisan advantage because most elections were clear-cut. Four of the six presidential elections between 1952 and 1972 were landslides. As a result, Republicans did not quake in fear over handing three electoral votes to the Democrats, as occurred when voters in D.C. were enfranchised by the 23rd Amendment..

There was a collective sense of mission, too, especially during the Cold War, when many national leaders viewed American democracy as engaged in mortal ideological combat with Soviet Communism. Any failure of freedom—from the poll tax to depriving 18-year-old soldiers in Vietnam of the right to vote—might be exploited by Communist propaganda. And the still-lingering memories of Pearl Harbor and V-J Day probably fostered a lingering sense of idealism about American democracy.

Of course, many of these ’60s-era constitutional amendments can be seen as an effort by the Washington establishment to co-opt nascent social movements. Eliminating the poll tax was a minor sop to civil-rights advocates; the 18-year-old vote was a way of luring the nascent baby boomer generation. And the seeming political acceptance of the Equal Rights Amendment was directly connected to the rise of feminism.

But as historian Rick Perlstein implies in his 2014 book, The Invisible Bridge: The Fall of Nixon and the Rise of Reagan, the 1976 Republican Convention in Kansas City was when the constitutional-reform music died. The nomination fight between President Jerry Ford, the embodiment of the GOP establishment, and conservative insurgent Ronald Reagan spilled over to the ERA. What should have been a desultory hearing on platform language was punctuated by Reagan supporters with signs like, “Don’t Let Satan Have His Way — Stop the ERA.” The anti-ERA forces lost that particular battle when Ford won the nomination, but they won the war: never again would the Republicans support the ERA.

Birch Bayh’s death reminds us of an era when major constitutional reforms seemed possible. And perhaps, someday soon, the logjam will break and there again will be a bipartisan consensus to enhance American democracy.

(Image: Henry Griffin/AP)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.