The Art of Leadership: A Companion to an Exhibition from the Senatorial Papers of Birch Bayh, United States Senator from Indiana, 1963-1980
Certainly, Gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinions high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasure, his satisfactions, to theirs,—and above all, ever, and in all cases, to prefer their interest to his own.
But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure,—no, nor from the law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.
—Edmund Burke, speech to the electors of Bristol, November 3, 1774
AN EXTRAORDINARY MAN FOR EXTRAORDINARY TIMES
Even for those who lived through them, it is difficult to recapture in memory the full complexity and turmoil of the 1960s and 1970s. With the Korean War from 1950 to 1953 came an arms race to the hydrogen bomb, threatening nuclear annihilation of the planet. Fear of the spread of communism became a permanent part of the context of American lives in the 1950s, justifying not only covert operations that overthrew elected governments in other countries but also congressional committees to identify “un-American” activities, the reach of which destroyed careers and lives and revealed few real dangers to the national security. In retrospect we know that it also was thought to justify the American government putting its own people under surveillance in the chaos of the 1960s, when citizens with various concerns were struggling to dislodge the country from so many of its accustomed ruts.
First and foremost were those in the long struggle of African Americans to take possession of their full citizenship rights. They had received a major push forward with the 1954 Supreme Court decision in Brown v. Board of Education, in which separate schools were declared to be inherently unequal and thus unconstitutional. The next steps were taken, largely under the leadership of Martin Luther King, Jr., in actions designed to desegregate all public facilities in the country, to guarantee voting rights, and to create equal access and equal opportunity for all. The resistance to change was often violent, and local and state law enforcement officials frequently showed themselves unwilling to protect. Through the newly ubiquitous medium of television, the country witnessed the injustice and racist violence that ultimately required federal intervention in order to protect the constitutional rights of African American citizens and restore order.
Simultaneously, the decision of the Kennedy administration to involve itself in the Vietnamese struggle against colonial France in order to block the spread of communism led to over a decade of internal turmoil as tens of thousands of American lives were lost in a war supported by compulsory military service. At the same time, that administration had carried into the White House the soaring rhetoric of a new era of fresh young leadership, and with it the hopes of an enormous number of young idealists who responded to its call to make the world a better place by joining the new Peace Corps, throwing their efforts into the work for equal civil rights, and dedicating themselves to public service. Kennedy’s inspiration was not quelled even by his assassination, as their sense of empowerment brought public demonstrations in support of civil rights, against the nuclear arms race and, once President Johnson sent U.S. soldiers into Vietnam, against the war.
The nightmare of Johnson’s presidency, carrying forward against all resistance the enforcement of civil rights in schools, in voting, and in public accommodations, and at the same time trapped in the quagmire of Vietnam, was the country’s nightmare as well, as it. Americans struggled to sort out right from wrong, rhetoric from reality, and to find the foundation upon which their country could move forward to an American future no longer taken for granted. Just as those in the civil rights movement had seen no other recourse but public protest, so those opposing the war began to organize “teach-ins” on university campuses to investigate the genesis of the war and marches and demonstrations to protest its continuation. In 1967, following the Riverside Church speech in which Martin Luther King, Jr. linked the war with the social injustice against which the civil rights movement had been struggling, the two causes were joined. For young African American men vulnerable to the draft, that linkage was particularly powerful. The riots in urban centers in the north brought home to many that racism was not a regional issue.
The assassination of Martin Luther King, Jr. in April 1968 plunged the country into yet deeper chaos, as African American youth became impatient with the pace of nonviolent actions. A second blow was Robert F. Kennedy’s assassination two months later, just after a solid first step toward the 1968 presidential nomination. University campuses became the sites of struggle for social justice and against the war, often involving occupation of buildings, but they also pointed toward concrete changes over which administrators had control, and those protests began to be heard.
While their elders struggled to make sense of their 1950s world gone awry, many young people took refuge in a reality of their own creation that they thought would lead to peace and love. They became a social force as they gathered not only for music festivals but also in support of social issues. There was a dark side, however, as more and more young people began experimentation with drugs that would almost imperceptibly become a rite of passage for many. The increasing dependence of their elders on legal drugs to solve a multitude of major and minor ills only compounded the problem. A 98 percent increase in marijuana arrests from 1966 to 1968 was cited as ominous, although far more serious abuses, particularly of legal drugs, would emerge.
This and other cracks in the edifice of the American lifestyle began to appear in the 1960s, as medical reports linked smoking to cancer and Rachel Carson’s Silent Spring suddenly cast the hitherto unchallenged advance of technology as a potential enemy to the survival of the planet. Polio vaccine, the use of nuclear power to generate energy for peaceful purposes, and the exhilarating achievements of the new space agency, NASA, carried the country forward on the promise of a better future—even as the pollution of air and water began slowly to demand public attention in a gnawing reminder that all was not well.
In spring 1969 the troop level in Vietnam reached 543,000. In November that same number of people marched in Washington, D.C. for peace, spurred by the atrocities of the civilian massacre by U.S. soldiers at My Lai, the call-up of reserves in 1968, and the failure of their new president to produce the plan to end the war he had promised during his 1968 campaign. A man on the moon, the first round of Strategic Arms Limitation Talks with the U.S.S.R., and passage of a National Environmental Policy Act were overshadowed by the 100,000 U.S. soldiers who had been killed or wounded in Vietnam. The acts of small groups such as the Weather Underground, advocating violence and bombing buildings in early 1970, served to keep the country on edge.
On May 4, 1970 that edginess was epitomized at Kent State University, when the Ohio National Guard fired into a crowd of demonstrators and killed four. The intersection of that edginess with racism was evident two weeks later when the Mississippi State Police fired rounds of military-caliber ammunition into a dorm on the Jackson State University campus and killed two students.
The Supreme Court upheld busing to desegregate schools amid widespread protests, and in 1971 Native Americans joined the struggle for social justice. Anti-war protests continued to grow, particularly with the publication of the Pentagon Papers by the New York Times and the Washington Post, revealing the Defense Department’s secret history of the Vietnam War. The trust of the country in its government was yet further undermined.
A social backlash expressed itself in support of the law-and-order candidacy of George Wallace for the 1972 Presidential election. Birch Bayh was a strong alternative, particularly with the ratification of the 26th Amendment in July 1971, lowering the voting age to 18, and might well have captured the Democratic nomination but for the tragedy of breast cancer that struck his wife Marvella in October. He immediately withdrew from the race. Despite the strength of anti-war sentiment, the country re-elected Nixon, who had withdrawn U.S. forces but had engaged the country in bombing North Vietnam and mining its ports and who in October had been linked to the break-in at Democratic National Committee headquarters in the Watergate Hotel.
Throughout 1973 President Nixon would watch the investigation of the Watergate break-in come ever closer to him, refusing to release the “Watergate tapes” of his conversations with his aides. In early September, President Allende of Chile was overthrown in a coup widely rumored (and later confirmed) to be supported by the CIA, and in early October Vice President Spiro Agnew resigned amid allegations of bribery and tax evasion. A week later the Arab oil-producing nations announced that they were ceasing shipment of oil to the U.S. because of its support for Israel in the Yom Kippur War begun October 6 and imposed an embargo that lasted into March 1974 and quadrupled oil prices.
In February 1974 the House of Representatives began the process of determining grounds for impeachment. The trials of Nixon’s aides in the first half of 1974, the Supreme Court decision on July 24 that he must turn over not just the edited transcripts but the actual Watergate tapes, and the vote for a second article of impeachment against him on July 29 by the House Judiciary Committee led to his resignation on August 9. Gerald Ford was sworn in as president, appointing Nelson Rockefeller as his vice president. Within weeks President Ford pardoned Nixon as the first step toward healing the nation and as a second step announced a partial amnesty program for Vietnam War deserters and draft-evaders.
Although the Watergate drama was the overarching event of 1974, the kidnapping of newspaper heiress Patty Hearst by the so-called Symbionese Liberation Army and her apparent voluntary participation in their robberies and shoot-outs kept alive the feeling of social instability until her arrest along with other SLA members in September 1975. With the U.S. military involvement in Southeast Asia over and the vigilance of Birch Bayh and others in protecting civil rights progress, the social environment was calmer though changed, with a greater presence of women in higher education, in military academies, and in religious leadership, and the emergence of advocacy for other marginalized groups such as the disabled and homosexuals. Economic instability became a concern, and the echoes of the 1973 oil crisis remained. New York City had to be bailed out with a $2.3 billion loan.
Congress began to reassert its oversight responsibilities, passing the Freedom of Information Act over President Ford’s veto in November 1974. In response to a December 1974 New York Times report that the CIA had been engaged in illegal activities domestically during the Vietnam War, President Ford put Vice President Rockefeller in charge of a Commission on CIA Activities within the United States, which announced in June 1975 that there had been no widespread pattern of such activities. On January 27, the Senate had established its own Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which came to drastically different conclusions and asserted the need for legal standards for, and congressional oversight of, intelligence activities. The Senate established a Permanent Select Committee on Intelligence in May 1976; the House followed in July 1977.
The overarching change in the late 1970s, however, was the greater intrusion of the world outside the United States into American consciousness, with events carried out by terrorists of various kinds capturing press and thus public attention. The causes of Palestine, Croatia, Northern Ireland, Cuba, South Africa, and homegrown groups made violence in which innocents were killed regular fare in the news. President Jimmy Carter focused his attention on active mediation in the conflicts in the Middle East, successfully facilitating the Camp David peace agreement between Israel and Egypt in 1978. His emphasis on respect for human rights as a factor in foreign aid and on long-range environmental planning were overshadowed by renegotiation of the Panama Canal treaties, the Israeli invasion of Lebanon, the Afghan revolution in 1978, the subsequent Soviet invasion of Afghanistan, and the ousting of the Shah of Iran. The return of the Ayatollah Khomeini from exile in early 1979 and the proclamation of Iran as an Islamic Republic set the stage for the Iran hostage crisis when the U.S. government allowed the deposed Shah to come to New York for medical treatment. For the last year of President Carter’s term, the progress he had made in the Strategic Arms Limitation Talks with the U.S.S.R. and his singular achievements toward Middle East peace were overshadowed by the seizure of U.S. embassy personnel in Tehran by Iranian students, who were released only on January 20, 1981, Ronald Reagan’s inauguration day. By that time the Sandinistas had come to power in Nicaragua over U.S. opposition, U.S. embassies in Libya and Pakistan had come under attack by mobs, and the U.S. was selling arms to the Chinese in protest over the Soviet invasion of Afghanistan.The treaty with the U.S.S.R. that had emerged from the Strategic Arms Limitation Talks was on hold, attempts to rescue the American hostages in Iran had failed, and Iraq under Saddam Hussein had invaded Iran in a dispute over the Shatt al-Arab waterway. On a more hopeful note, Lech Walesa had launched the Solidarity labor movement in Poland that would soon become the wedge that brought down communist domination of Eastern Europe.
This turbulent time was the context in which Birch Bayh’s legislative career unfolded. His 1968 campaign literature announced, “These are extraordinary times. Senator Bayh is an extraordinary man.” As it turned out, it was not hyperbole.
Birch Evans Bayh, Jr. was born January 22, 1928, in Terre Haute, Indiana. His mother, Leah Hollingsworth, grew up on her family’s farm in Shirkieville just west of Terre Haute. She retired from teaching home economics to raise Birch and his sister Mary Alice. His father was a much-loved coach and the first athletic director at what is now Indiana State University before taking a position in 1936 as director of the physical education program of the District of Columbia public schools. Bayh spent time during the summers on his grandparents’ farm until his mother’s death in 1940. Two years later, he moved back to the farm when his father joined the war effort and was put in charge of physical fitness in the Burma-China theater.
As a student at Fayette Township High School, Bayh threw himself into 4-H work and was elected president of his 4-H club for two years. As he recounted in his 1945 vegetable production report to the National Junior Vegetable Growers Association (NJVGA) competition, the summers on the farm had made him want to grow something on his own, and he now had the opportunity. By 1944 he had begun a string of successes: he won the Indiana 4-H Tomato Championship that year, and the NJVGA Regional Scholarship the following year. He excelled in speaking and teaching, winning the county and district Rural Youth Speaking Contests in 1945 and placing third in the National NJVGA Demonstration Contest with his “Dr. I.T.” (Information on Tomatoes) performance built on the popular radio program, “Dr. I.Q.” He was also an avid baseball and basketball player and vice president of his senior class.
As difficult as it may be to define leadership, it was clear to virtually everyone around the young Birch Bayh during his teenage years that he had it. Gregarious, intelligent, eager for the challenge of solving difficult problems and tackling new endeavors, genuinely interested in everyone around him and reaching out to them in imaginative ways, the “city kid” transplanted to his grandparents’ Vigo County farm was up to his eyebrows in school activities and athletics.
The opinion of those around him seemed to be that he had only begun. They were right.
Bayh entered Purdue in 1945, where he pledged Alpha Tau Omega. After his first year, he joined the Army and was sent to Germany to serve as a military policeman with the occupation forces. Upon learning of his destination, he contacted Mildred Schlosser of the Vigo County Extension Office and requested vegetable seeds to take with him to try to develop a garden project with German children.
Bayh’s report to the National Junior Vegetable Growers Association on his German garden project included a color-coded garden plan and a listing of the vegetables produced: 1,285 pounds of cabbage, 345 pounds of turnips, 315 pounds of beans, 230 pounds of rutabagas, 155 pounds of radishes, 145 pounds of rhubarb, 25 pounds of parsley, 16 bushels of tomatoes, 9 bushels of spinach, 7Â½ bushels of cucumbers, 7 bushels of lettuce, 5Â½ bushels of carrots, 5 bushels of beets, 2Â½ bushels each of sweet corn, peppers, and Swiss chard, 2Â¼ bushels of kale, and 8Â¾ bushels of “spices.” In his report to the NJVGA, Bayh described the cooperation fostered with the town officials and farmers, who helped plow the land and build a tool shed; and the division of land into a plot for the children from each family.
When it came time to calculate costs, profit, and loss for his report, Bayh discovered that the produce was priceless, since it was not obtainable even on the black market. He wrote, “I suppose this seems like a silly project in most eyes. No expenditures, no profit, no loss. However, I’m inclined to look at it in a different light. First of all, we helped to feed several needy German families and also helped in our own small way to see them through the long lean winter ahead. This alone would repay my efforts. Secondly we tried our best to be ambassadors of America to these German youths. . . . Let us hope that before long Germany will be on the road to recovery; this time to a democratic nation. Let us hope that it will never again be necessary for any American to fight on foreign shores. If in any small way my project can or has helped to accomplish this, I’ve been fully repaid.”
In retrospect he saw the goals of the project as being to teach “the American way” through the German Youth Activities (GYA) program he and his comrades had undertaken. The project showed the Germans, he said, “that our way of democracy is the only way that a peaceful life can exist among nations.” The results of his efforts were reported nationally through an article in the November 1948 Reader’s Digest entitled “G.I. Ambassador” and won him yet another scholarship from the NJVGA as well as accolades from a proud Vigo County community.
BACK HOME IN INDIANA
Bayh returned to Purdue in 1948 to pursue a general agricultural degree. His athletic prowess had been extended to boxing while in Germany, and he won the Purdue Light–Heavyweight championship in 1948 and the Golden Gloves Light–Heavyweight Novice Championship in competition in Gary, Indiana, in 1949. He took part in virtually every other sport through inter-fraternity competition. He was active in all aspects of his fraternity, serving as president for two years upon his return.
He decided in the spring of 1950 to run for president of the senior class, which he later said was a turning point in his life. Pitting himself against a captain-elect of the football team, an Olympic swimmer, and a star Glee Club singer, he threw himself into the campaign totally, as he would do in every campaign to come. He organized the campus into precincts and his fraternity brothers into precinct workers, while he patrolled the dining halls and fraternity houses with a class list in hand to be sure that he spoke with every one of his potential constituents. He sent each student a penny postcard with his campaign slogan, launched “Vote for Bayh” helium balloons, and hitched a bright red farm wagon to a car that took him through campus, loudspeaker in hand. He won. Over the course of the year he was invited to join Ceres and Alpha Zeta, both honorary agricultural fraternities, and received the Thomas Arkle Clark award for the outstanding undergraduate in Alpha Tau Omega.
Upon graduation in June 1951, Bayh returned to Shirkieville to take over management of his grandparents’ farm. He became active in community organizations and as an adult 4-H leader and continued to compete in speaking contests. The national Farm Bureau speaking contest in Chicago in December proved to be another turning point in his life, as it was there that he met Marvella Hern, a competitor from Oklahoma who shared his idealism and energy for public service. She went on to win the national championship and the following August became his wife and political partner.
The Bayhs settled down to farming, but Bayh’s political appetite had been whetted, and he was already considering a run for the Indiana House of Representatives. His mentor, veteran representative Walter Maehling, advised him against running in 1952 because he was so young but supported his running in 1954. Bayh and Marvella began a campaign to talk with everyone in Vigo County, which put Bayh at the top of the three county nominees in the May primary. He exceeded his mentor’s total in the fall election by 69 votes, thus becoming one of the three Vigo County representatives. He entered the Indiana House of Representatives at the age of 27.
THE INDIANA HOUSE OF REPRESENTATIVES
The 1955 Indiana House of Representatives consisted of 63 Republicans and 37 Democrats who were unified by little beyond party affiliation. Bayh quickly learned that successful legislation required extensive negotiation. His impassioned eloquence in favor of an unsuccessful home rule proposal brought him widespread recognition, and he won re-election in 1957. Walter Maehling, who had served as minority leader for the 1953 and 1955 sessions, stepped out of the competition, and Bayh was chosen minority leader of the House. When the Democrats won the House by 75 to 24 in 1959, he was elected Speaker of the House, generally referred to as the youngest in Indiana’s history. His floor leader, long-time friend Don Foltz, was also young (34), as was caucus leader Robert Rock (31).
Bayh’s intention of putting service to the state above partisan politics was evident in his first speech as Speaker and in his assignment to the Republicans of more committee seats than strictly required. He pledged that while the two parties might differ, they would do so not on partisan grounds but “in an effort to arrive at the best possible legislation for our state.” Then he admonished his colleagues, “Let’s work together now and we’ll argue about who contributed the most after the session is over.”
After Bayh’s second term, Marvella urged him to face the fact that, as much as he loved farming, he was simply too gregarious to remain in the fields. He entered law school at IU Bloomington in October 1957. Like all students with families, they and their two-year-old son Evan lived in a small one-bedroom campus apartment. One day at a social event Marvella suggested to President Herman B Wells that perhaps the papers of the Speaker of the Indiana House of Representatives could be better cared for if not stuffed under the bed in a tiny campus apartment. They were moved to the relative luxury of a slightly larger apartment.
Although subject to press jibes because of their youth, the young Democrats presided successfully over a stormy session, shepherding through comprehensive school reform legislation that raised base teacher salaries, setting guidelines for contract continuation for non-tenured teachers and for investment of school funds, revising the state fund distribution formula, and creating the framework for secondary school consolidation. It was the most massive reform of Indiana school law in history and its focus on equality of resources paved the way for equality of opportunity. Bayh accomplished this while facing a multitude of issues: renewed furor over the “right-to-work” law; bills intended to ameliorate the causes of a highway department scandal during the previous session; and bills addressing patronage positions, juvenile delinquency, establishment of an intermediate correction facility with an emphasis on academic training, secrecy in welfare records, adjustment of the census period for state legislature apportionment, pari-mutuel betting, unemployment compensation, price controls to prevent discount stores from undercutting small merchants, and 60 proposals for changes in the Indiana constitution. A massive flood of the Wabash in mid-February 1959 added flood control to the agenda and finally overcame Republican resistance to seeking federal funds, which plagued both flood control and education reform efforts. By February 28, the House had sent 270 bills to the Republican-controlled Senate for action, of which only 19 had been passed. The two Houses were at a standoff on the budget required for the comprehensive school reform package, which the Republican governor had threatened to veto if not reduced. Negotiations in conference committee required concessions but the greater portion of the funding got through. The Speaker of the House emerged admirably from what must have felt like a trial by fire.
With its requirement for constant interaction with people, legislative work was for Bayh as natural as breathing. During his Indiana House career he introduced a total of 39 bills, 32 of them with Republicans, indicating that he had spent a good deal of time preparing the ground for their success. The challenges of floor debates and impromptu strategizing drew on his healthy sense of competition and tenacity in solving intractable problems, and he thrived on the intense activity of the Indiana General Assembly’s biennial 45-day sessions.
THE NEW FRONTIER
Bayh received his law degree in June 1960 and joined a Terre Haute law firm, just as the rising star of John F. Kennedy was beginning to blaze for young idealists all over the country. In her autobiography, Marvella Bayh recalls a phone call to her husband during a summer 1960 visit to Oklahoma; instead of diligently studying for the bar exam, he was glued to the televised nomination of John F. Kennedy at the Democratic National Convention. Kennedy’s soaring rhetoric and promise of a new era in America captured the imagination of much of America and certainly its youth.
Bayh himself was soon identified as a rising star, and the program of the 1961 convention of the Young Democrats of Indiana featured Birch and Marvella as Indiana’s version of the charmed Kennedys, at the vanguard of a change sweeping over Indiana. Bayh campaigned for Matt Welsh for governor in 1960 throughout the state and was encouraged to consider a run himself for the United States Senate. He won re-election to the Indiana House in November 1960 but to a House reclaimed by the Republicans; Indiana voted overwhelmingly for Nixon. He was once again elected minority leader and continued to work for school reform. He also sponsored bills increasing penalties for illegal possession of narcotics and regulating the dispensing of dangerous drugs. These were concerns that, like lowering the voting age, he would carry into his work in the United States Senate.
THE 1962 SENATE CAMPAIGN
By summer 1961, trips around the state and the enthusiasm of potential Indianapolis supporters at the annual Jefferson–Jackson Day dinner in May had encouraged Bayh to seriously consider a challenge to 18-year incumbent Senator Homer Capehart. In October he announced his candidacy. It was clearly a long shot, but with the loan of a 1957 Mercury, campaign managers Larry Conrad and Bob Boxell, driver Bob Hinshaw, and apparently unlimited energy, Bayh set out to meet as many of Indiana’s five and a half million people as he could by the June 1962 nominating convention. Between them, he and Marvella logged 70,000 miles, speaking everywhere there was a venue. The result was a groundswell of support that placed Governor Matt Welsh in the awkward position of being pressured to endorse Indianapolis Mayor Charles Boswell in order to ensure city support for his programs but at the same time seeing that the state was clearly behind Bayh. On May 10 he endorsed Bayh, who then won the nomination on the first ballot at the June convention. The nomination was only a first step toward unseating a well-known incumbent, and he continued his pace of 18-hour days, seven days a week. Bayh gave 300 speeches between Labor Day and November 6 and did not see Marvella at all for five weeks as they each carried the campaign around the state.
While an initial visit to Washington in spring 1961 had not attracted the support of national Democrats, Bayh’s capture of the nomination and his relentless campaign style did, and President Kennedy came to the state in mid-October to support him. But it may have been less the visit of a Democratic president to conservative Indiana than the creation of Bayh’s “Hey, Look Him Over!” jingle that sent him over the top. Competing against an opponent whose name was known to more than 80 percent of voters, Bayh faced the problem not only of becoming known but also of being sure that people would associate his name as they heard it with the spelling they saw on the ballot in November. The radio popularity of “Hey, Look Me Over!” from the musical “Wildcat” triggered a Bayh version of the song, written by Mary Lou Conrad, wife of Bayh’s campaign manager Larry Conrad. The resulting campaign ad, produced by Bob Long Associates of Indianapolis, was declared by the 1963 American Television Commercial Festival the best locally produced television commercial of the year. Its immediate benefit, though, was to set the state of Indiana humming and singing the Bayh jingle.
Bayh tells of overhearing two young boys examining his parked campaign car. One asked the other, “Do you know who that is?” “No, who?” “That’s the guy we’re supposed to look over.” They did, and he beat Homer Capehart by just over 11,000 votes. It was a victory all the more amazing to national Democratic leadership after Kennedy’s actions in the Cuban missile crisis in late October appeared to align much more with Senator Capehart’s longstanding calls for an invasion of Cuba than Bayh’s less militaristic approach. A victory under those conditions indicated a singular political talent indeed.
THE NEW SENATOR
The Oath of Office
“I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
A great deal of the work of Congress is done in committees and their subcommittees, to which bills, once introduced, are assigned for deliberation and revision. That deliberation takes place against a backdrop of extensive staff research, consultation with colleagues and constituents, and often hearings to elicit opinions and to draw upon expertise. It is here that an attempt is made to reach consensus on some version of the legislation that all members of the subcommittee or committee can support. Second best is a majority vote, which will send the legislation to the next level—from subcommittee to full committee, from committee to the full Senate. During the process, consultation with members of the larger committee or the full Senate can pave the way for the legislation. Whether or not a bill emerges from a subcommittee and then a committee and in what form depends to a great extent on the members of the subcommittee or committee and in particular on the chairman. Members are in a position to argue for measures that will benefit their own states as well as to influence legislation with a national impact.
Bayh’s committee appointments gave him the means to do both. He requested and was assigned to the Public Works Committee, serving on the subcommittees on Flood Control, Rivers, and Harbors; on Public Roads; and on Public Buildings and Grounds. His motivation was in large part to open the channels between Indiana and the federal funds that should have been available to it for flood control, protection of water resources, river navigation, and harbor facilities, funds that had not been leveraged during his terms in the Indiana General Assembly. Bayh was now in a position to initiate the necessary process of consultation with the governor and his conservation director, fellow Indiana representatives in Congress, private and Indiana groups interested in water conservation and flood control, and the U.S. Army Corps of Engineers, to argue for Indiana projects in the Senate Public Works Committee and its subcommittees.
As a member of the powerful Judiciary Committee, Bayh initially sat on four of its subcommittees: Administrative Practices and Procedures, Constitutional Amendments, Constitutional Rights, and the Special Committee to Investigate Juvenile Delinquency. The chairs of those committees were, respectively, Edward Long, Estes Kefauver, Sam Ervin, and Thomas Dodd. In August 1963, Estes Kefauver, chairman of the Constitutional Amendments Subcommittee, unexpectedly died of a heart attack. Judiciary Committee Chairman James Eastland decided as a cost-saving measure to shut the subcommittee down, but Bayh protested, offering to take on the chairmanship and even support staff out of his senatorial office budget. Eastland finally relented, agreeing to appoint Bayh chairman before Bayh had even given his maiden speech in the Senate. Focused on perfecting that speech, which would introduce him to his eminent peers on October 8, 1963, Bayh had no inkling that he would soon be called upon to guide the process of amending the Constitution to ensure the stability of presidential succession.
For Bayh, the task before him upon entering the Senate was to become a fine senator, and he set about initiating relationships with the elder colleagues who could help him do so.His mentors included Vice President Lyndon Johnson, whose affection for Bayh, and for Marvella, who hailed from Johnson’s own part of the country, was genuine and spontaneous.When President John F. Kennedy was assassinated and Johnson suddenly found himself president, the fact that he and Bayh shared the same ideals for a more just society became an important factor in his efforts to carry out the Great Society agenda.
That agenda required time, which meant re-election in 1964. Johnson asked Bayh to chair the national Young Citizens for Johnson Campaign, which took him to speaking engagements all over the country and a prominent role in the Democratic National Convention in Atlantic City. It also established Bayh as a potential major player in national Democratic politics. Perhaps as important in his own mind, it provided venues for speaking to Americans on the issues that he felt were of urgent concern to the nation.
ENSURING DEMOCRACY: THE 25th AMENDMENT TO THE CONSTITUTION
On November 22, 1963, seven weeks after Bayh became chair of the Subcommittee on Constitutional Amendments, President John F. Kennedy was assassinated. While the country immediately had a capable new president, it now had no vice president and no set procedure for naming one. The Constitution said only that Congress “may by law provide” for the officer to be named as vice president if removal, death, resignation, or inability should leave the office empty, but Congress had never done so.
Nor was there any established procedure for dealing with a situation in which the president was disabled, although there had been alarms with Eisenhower’s health only a few years before, and concerns earlier in the century with the long disability of Woodrow Wilson. In such cases, who determined whether the vice president should take over, and who determined when the president might resume his duties? President Eisenhower and Vice President Nixon had worked out an agreement, and a similar one between Kennedy and Johnson had been signed, but leaving the responsibility to individual presidents was hardly the way to ensure smooth and lawful transfer of power in a democracy.
In 1960 the American Bar Association (ABA) undertook an extensive study of the problem and recommended that a constitutional amendment be drafted. Despite the youth and vigor of the new president, Senators Estes Kefauver and Kenneth Keating drafted versions of an amendment for consideration in the 87th Congress and were moving toward consensus when Kefauver died of a heart attack on August 10. Bayh was officially named his successor as chair on September 30, and the president was assassinated November 22.
Bayh’s Senate Joint Resolution 139 (S.J. Res. 139), introduced December 12, 1963, was unique in providing specific details as to how a vice-presidential vacancy was to be filled as well as how presidential disability was to be declared by the president or by others and how it was to be declared ended. Bayh’s Indiana General Assembly experience told him such specificity would be essential to ratification by the states, which hated giving Congress a blank check. The Constitutional Amendments Subcommittee included representatives of the American Bar Association in its consideration of S.J. Res. 139 in February 1964, and in May the ABA sponsored a Conference on Presidential Inability and Vice Presidential Vacancy in Washington, D.C. for business, labor, and government leaders from all over the country. S.J. Res. 139 was passed by the Senate and referred to the House Judiciary Committee on October 3, 1964, just before Congress adjourned and so died for that session of Congress.
At the opening of the 88th Congress in January 1965, Bayh introduced the same amendment as S.J. Res. 1. Emanuel Celler, chairman of the House Judiciary Committee, introduced its equivalent in the House and held hearings on it and related issues. The Senate passed S.J. Res. 1 and sent it to the House on February 22. There it was subjected to spirited debate and many proposed amendments. The result was that the House returned it to the Senate with changes the Senate could not accept. Thus a conference committee of members from both House and Senate was formed, a duty generally undertaken by the most senior legislators. Bayh asked Judiciary Committee Chairman Eastland to allow him to participate and in response was made conference committee chairman, certainly testimony to his leadership skills. The House and Senate versions were finally reconciled on June 24, 1965, and the proposed 25th Amendment to the Constitution of the United States was sent to the states for ratification.
Ratification by the requisite thirty-eighth state came on February 10, 1967, and with that a sense that continuity in transfer of the power of the president had been assured. The amendment would be tested in fewer than seven years. When Nixon’s vice president, Spiro Agnew, resigned on October 10, 1973, amid allegations of bribery and tax evasion, Nixon appointed Congressman Gerald R. Ford to the office of vice president, which was duly approved by Congress in accordance with the amendment’s provisions. When Nixon himself resigned on August 8, 1974, under the cloud of the Watergate scandal and the new President Ford showed himself capable of leading the nation out of its “long nightmare,” the wisdom of the authors of the 25th Amendment seemed to be confirmed. Bayh led the Constitutional Amendments Subcommittee in oversight hearings in 1975 to evaluate the process, and it was determined that no changes were needed.
If the junior senator from Indiana had wished for an apprenticeship in the art of legislative leadership, he could probably have done no better than the 25th Amendment process that was thrust upon him. But he had seen the need, taken the initiative, and embraced the task. With his chief counsel, Larry Conrad, he had immersed himself in constitutional law in the tradition of the Founding Fathers, weighing the issues and arriving at what he regarded as the best solution in constitutional terms. He had initiated endless discussions with his colleagues in both Senate and House, paving the way for reasoned deliberations on the problems and anticipated effects of the various alternatives. And he had shown great sensitivity to the personal feelings of those such as House Speaker John McCormack, who stood third in line for the presidency under the process Bayh was trying to replace. He had debated and defended his position, he had shown himself willing to listen and compromise. Through it all he had been eminently respectful of his colleagues, their positions, and the Constitution they had all sworn to defend.
When the 25th Amendment was sent to the states for ratification, Birch Bayh was 37 years old, and he had mastered the art of legislative leadership. Veteran Senator Sam Ervin of North Carolina, who was nearly twice Bayh’s age, paid tribute: “If it had not been for the perseverance, the patience, and the willingness to compromise which was manifested on a multitude of occasions by the junior senator from Indiana, we would never have gotten the resolution out of the subcommittee, much less through the full Judiciary Committee and then through the conference with the House.” Congress had been trying to resolve this dilemma virtually from the adoption of the Constitution. Under the leadership of the junior senator from Indiana, it had finally done so.
The mountains of historical and legal research that went into the process of securing passage of S.J. Res. 1 and Bayh’s own fascination with the intricacies of that process led to his book, One Heartbeat Away: Presidential Disability and Succession, published by Bobbs-Merrill Company in Indianapolis in 1968.With its detail and obvious thrill with the challenge, it could easily serve as a case study for students of legislative process.
DIRECT ELECTION OF THE PRESIDENT
The 25th Amendment had barely been sent to the states for ratification when Bayh turned his attention to another major problem of democratic process, the Electoral College. As set out in Article II of the Constitution, the president and vice president are not elected directly by the people but by a group of electors in each state equal to the total number of senators and representatives for the state. How those electors are chosen is left up to the states, as are any restrictions on how they vote.
In March 1965, Bayh in the Senate and Emanuel Celler, chairman of the House Judiciary Committee, introduced resolutions for a constitutional amendment requiring that electors vote for the candidates receiving the majority of votes in their states. Although this was common practice, there was nothing at the federal level compelling electors to do so. Hearings were not scheduled until February of the following year, when three alternatives to Bayh’s plan were also considered: direct popular election, a district plan where electoral votes would follow district voting; and a proportional plan, where electoral votes are proportioned according to the popular vote.
Bayh held hearings in February 1966 to gather educated opinions on reforming the electoral college. By May 1966 he had concluded that reforming the electoral college was “like shifting around parts of a creaky and dangerous automobile engine, making it no less creaky and no less dangerous.” Although he had previously thought it impossible to get an amendment for direct popular election through Congress, he now saw it as the “next logical outgrowth of the persistent and inevitable movement toward the democratic ideal” embodied in continuous expansion of the franchise and equality in voting. Historical “close calls” and tendencies in recent elections pointed to the possibility, he said, that a president could be inaugurated who had not received the majority of the popular vote and thus could not command the confidence of the country. He was convinced that the electoral college was outdated and that the only reason for its survival was public ignorance.
The American Bar Association appointed a commission to study the issue. In early January 1967 it released recommendations very similar to the resolution Bayh had advocated, and on January 11 he introduced S.J. Res. 2. His Constitutional Amendments Subcommittee held hearings in May and July, but no action was taken before the 1968 election. With the opening of the 91st Congress in 1969, Bayh again introduced the resolution, this time as S.J. Res. 1, and it had 40 co-sponsors. It was also strongly supported in the House. Bayh opened hearings in late January 1969 and over the course of the spring made direct election of the president the topic of speeches all over the country. The House passed it and President Nixon declared his support of it, but resistance within the Judiciary Committee stalled progress. While other business was acted upon, action upon S.J. Res. 1 was blocked through a variety of parliamentary maneuvers, largely by Strom Thurmond of South Carolina.
In April 1970, Bayh argued for reporting S.J. Res. 1 favorably to the full Senate on the basis of a letter of support from 26 of the House Judiciary Committee members, who had been through 10 days of hearings with 60 witnesses, then met for six days in executive session, and finally approved the plan after seven days of debate by a vote of 339 to 70. Analysis of that vote indicated that 36 state delegations supported the direct election proposal, 24 of them unanimously, suggesting that ratification was probable.
On April 23, S.J. Res. 1 passed the Judiciary Committee by a vote of 11 to 6 and the majority report was prepared, but minority members delayed filing their report until August 14. On September 8, after the Labor Day recess, debate in the Senate began. The sense of urgency that Bayh felt because of the growing popularity of third-party candidate George Wallace and the prospect of no candidate achieving a clear Electoral College majority was not shared by his Southern colleagues. Bayh was faced with a filibuster that he did not have the votes to break.
Bayh reintroduced his proposal when the 92nd Congress opened in January 1971, with an added automatic feature to affect the 1972 election if ratified. Again no action was taken, nor was any taken on resolutions introduced in 1973 and 1975. In late 1976 he began once again to work on building public and congressional awareness. In January 1977 he launched a full effort with a statement that he was convinced the Electoral College would be abolished prior to the 1980 election, and he scheduled five days of hearings in late January and early February. His committee had by now amassed nearly 2,600 pages on the need for electoral reform, but it did not reach a vote, and it was filibustered in 1979 as well.
Thus a reform generally drawing the support of 60 to 80 percent of Americans has remained blocked to this day, despite a presidential election in 2000 that exemplified the very situation feared by the advocates of direct presidential election.
Bayh continues to work on this issue through the Every Vote Equal strategy, based on the states’ rights to determine how their electoral votes are cast. If a sufficient number of state legislatures bind their electors to cast all of their votes for the winner of the popular vote nationally, the winner of the popular vote will automatically be the winner of the Electoral College vote.
THE 26th AMENDMENT TO THE CONSTITUTION
The rights of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
The 26th Amendment to the Constitution was also passed and ratified under Bayh’s guidance as chairman of the Subcommittee on Constitutional Amendments. He was convinced that engagement of young people in charting the nation’s future could go a long way toward countering their growing discontent. The Indiana General Assembly had voted to lower the voting age to 19 in 1953, and Bayh had fought mightily in 1955 for the requisite second session vote to send it to the people as a referendum issue, but he found opposition even among some of his closest allies, who contended that at 19 a young man doesn’t really know what he is doing. Five years after his election to the United States Senate, in January 1967, he returned to the Indiana General Assembly to urge it to extend the franchise to 19-year-olds, but to no avail.
Two versions of a constitutional amendment to lower the voting age were proposed in the Senate in 1967, and in spring 1968 Bayh held hearings on them. But nothing came out of the Judiciary Committee because of formidable opponents such as Strom Thurmond, much to the disappointment of Jennings Randolph, who had been pushing for a lower voting age since 1942. Despairing of getting a constitutional amendment, advocates of the lower voting age added Title III to the 1970 extension of the Voting Rights Act of 1965, to lower the voting age to 18 in all federal, state, and local elections, although they were not sure the power of Congress to lower the age for state and local elections would be upheld by the courts. Indeed it was not, although the Supreme Court decision in Oregon v. Mitchell in February 1971 did affirm the constitutionality of Congress doing so for federal elections. The result was that local officials would have to create dual elections in the 47 states where the lower voting age was not valid for state and local elections. Within two weeks of the Supreme Court decision, Bayh’s subcommittee was holding hearings on a constitutional amendment as the only way to establish election consistency and thus protect voting rights. On March 23, 1971, it passed both Houses and was ratified by the states less than four months later, on July 1, 1971.
GOVERNMENT FOR THE PEOPLE: DISASTER RELIEF
Bayh launched an extended effort in 1965 to reform the federal approach to disaster assistance. When an extensive network of tornadoes raged across the Midwest on April 11, 1965, killing 139 people in northern Indiana and inflicting property damage in the millions of dollars, he persuaded President Johnson to visit the site and set about rethinking federal disaster aid, which had previously focused on support for public facilities on a disaster-by-disaster basis. Working with 13 Midwestern colleagues, Bayh put together a comprehensive disaster relief bill that was introduced on April 30, 1965, with 30 co-sponsors. He was intent on developing an approach that emphasized preparedness at the federal level and assembling in advance the resources to provide a full range of aid to all victims of major disasters before they occurred.
Indiana Congressmen John Brademas and Ed Roush introduced a similar bill in the House. The Senate bill passed in December; Bayh turned in 1966 to pressing for House action, even as tornadoes and hurricanes were creating more disasters. By October, the House had dropped many of the provisions Bayh considered essential but he decided to ask the Senate to approve the House version rather than taking the bill to a conference committee, as clearly it would never make it out of conference committee before the end of the 89th Congress.
In January 1967, Bayh introduced his amendments to the Disaster Relief Act of 1966 to restore provisions for disaster loans, temporary shelter, aid to farmers, highway repair, and cost-sharing for those without insurance, all of which had been cut from the 1966 compromise bill. One set of hearings on his amendments was held in June in Dunlap, Indiana, where the Red Cross had been headquartered during the 1965 tornado recovery effort. The hearings revealed that the Small Business Administration had erroneously informed some individuals that they were not eligible for loans. Further hearings were held in July. On the basis of the hearings, Bayh began to draft legislation related to the various agencies involved. He also tried to move a comprehensive bill through the Public Works Committee, thus ensuring that small pieces of the problem were remedied even as the more comprehensive approach was blocked from passage in the 90th Congress.
Bayh’s Disaster Relief Act of 1969, was submitted in March and passed in the Senate in September 1969. It provided relief to victims of all disasters between June 30, 1967, and Dec. 31, 1970, including mudslides in California and Hurricane Camille. By this time it had become clear to others that a more comprehensive approach to disaster relief was necessary, and Bayh was named chairman of a newly formed Committee on Public Works Special Subcommittee on Disaster Relief. He immediately began hearings on the administration of disaster relief in states affected by Hurricane Camille, first in Mississippi and then in Virginia and West Virginia. Hearings in Biloxi, Mississippi alone drew on testimony from more than 70 witnesses; the complete hearings report ran to five volumes. Based on the Mississippi hearings, Bayh laid out a proposal for reform that included a federal coordinating officer or agency to unify disaster relief activities, establishment of communications centers, formation of emergency support teams to be brought into disaster areas, and federal aid for loans and reconstruction. After two days of hearings in Roanoke, Virginia, Bayh introduced Senate Bill 3619, the Omnibus Disaster Assistance Act, in March 1970. It passed the Senate in early September, was amended and passed the House in early October, then emerged from conference committee in December and was signed into law on December 31, 1970, as the Disaster Relief Act of 1970.
Bayh continued to work for refinement of the federal disaster relief program by introducing legislation on property insurance support for homeowners and businessmen and funding to repair highway damage from tornadoes and floods. He also led follow-up hearings in June 1971 on the administration of federal disaster relief programs in California after the San Fernando earthquake, responding to reports of delays and inefficiency.. In 1977 he publicly criticized the Federal Disaster Assistance Administration for failing to carry out the humanitarian intentions of the 1970 act in its handling of snow disasters in the Midwest. He continuously monitored the emergency loan programs of the Small Business Administration and the Farmers Home Administration as they applied to Indiana. Oversight remained a major component of ensuring adequate disaster relief
SEEKING JUSTICE: WOMEN’S RIGHTS
I think [Marvella] to a very great extent made me what I am today. Here was the 19-year-old daughter of a wheat farmer who I had spirited out of Oklahoma A & M to my corn and soybean farm. And we both knew we wanted to get involved in some way in public policy to help people, to make the world a better place. And in her eyes, as we went through life together, from time to time she would remind me what it was like to be a woman in a man’s world. If it hadn’t been for her, I would not have been in a leadership role that I was in Title IX of the Higher Education Act, equal rights in education, equal rights for women. All of those things are the product of Marvella’s coaching and tutoring and her personal experience. — Birch Bayh, 2004
In 1920, the 19th Amendment to the Constitution was ratified, establishing that the right to vote could not be denied or abridged on account of sex. Three years later an Equal Rights Amendment was introduced in Congress stating that “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” Similar resolutions were introduced in every succeeding Congress up through 1971, and numerous congressional hearings were held on the proposals between 1924 and 1971. But it was only after World War II, when women had shouldered so much of the work of the nation, that it was taken seriously enough to be reported out of committee.
Beginning in 1943, the Senate Judiciary Committee began to report the proposed amendment favorably, and in 1950 and 1953 the Senate passed it by substantial margins, but only after language had been added that “The provisions of this article shall not be construed to impair any rights, benefits, or exemptions conferred by law upon persons of the female sex.” This language essentially nullified the purpose of the Amendment, namely erasing the legal distinctions between men and women.
In 1961, President Kennedy established a President’s Commission on the Status of Women. The Commission’s report in October 1963 stated that the Constitution already embodied equality for women and a constitutional amendment was therefore not needed. What was needed was clarification through the courts to eliminate ambiguities with respect to women’s constitutional rights. As such clarification was not forthcoming by the beginning of the 91st Congress in 1969, new efforts were undertaken to establish women’s equal rights through a constitutional amendment.
A resolution proposing an equal rights amendment, S. J. Res. 61, was introduced by Eugene McCarthy in the Senate on February 28, 1969, stating that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” A similar resolution was introduced by Martha Griffiths in the House. Bayh’s Constitutional Amendments Subcommittee held hearings on the Senate resolution in early May 1970, then reported it to the Judiciary Committee. Meanwhile, the House had passed its version of the resolution on August 10 by a vote of 352 to 15.
Prospects for passage in the Senate seemed bleak as conservative senators offered amendments destined to bring it to defeat. One such was the “kitchen amendment” introduced at the end of August by Sam Ervin of North Carolina, in which the following language was added: “This article shall not impair, however, the validity of any law of the United States or any State which exempts women from compulsory military service or which is reasonably designed to promote the health, safety, privacy, education, or economic welfare of women, or to enable them to perform their duties as homemakers or mothers.” The amendment was defeated, but others were immediately offered, such as an additional article asserting the “sole and exclusive jurisdiction” of each state over the organization and administration of its public schools and forbidding any interference by any officer or court of the United States, proposed by James Allen of Alabama, or an article protecting prayer in public places, offered by Howard Baker. Clearly conservatives were setting a high price on passage of the Equal Rights Amendment. Other “perfecting amendments” were passed, until the Senate version of the bill no longer resembled that passed by the House.
Late in 1970 Bayh drafted a substitute that shifted the focus from “equal rights” to what he assumed no one could oppose, namely equal protection for women through rights already articulated in the Fourteenth Amendment. His intention was, as he put it, to build “a powerful constitutional base from which to move forward in abolishing discriminatory differential treatment based on sex.” No action was taken on his substitute before the end of the 91st Congress.
At the beginning of the 92nd Congress, parallel resolutions were again introduced in the two Houses. Meanwhile, Bayh sought other means to build a legal foundation for eliminating discrimination against women. When the amendments to the Higher Education Act of 1965 were introduced in the Senate in February 1971, Bayh foresaw the possibility of inserting a non-discrimination provision into the amendments as a way of providing equal access to higher education for women. When the bill reached the Senate floor in August, he did so. In his statement introducing it on August 6, 1971, he noted that the amendments to the Higher Education Act of 1965 then under consideration were intended to eliminate economic discrimination and make access to higher education a federal right. His amendment would eliminate the “subtle but still pernicious” discrimination against women. His amendment was ruled by the chair to be not germane, which was sustained by a vote of 50 to 32. The decision must have seemed peculiar indeed after the raft of irrelevant amendments to the Equal Rights Amendment introduced a year earlier upon which no such ruling was made.
The strategy required to get the Higher Education Act and Bayh’s amendment to it through Congress was daunting. The House had passed the Amendments to the Higher Education Act in November 1971 but added an anti-busing provision. Senator Claiborne Pell planned to offer the original Senate version of the bill as a substitute to get rid of the anti-busing amendment, then Senators could amend that. During the February 1972 debate, which focused heavily on the busing issue, Bayh offered his amendment. On March 1 the Senate agreed to its amendments of the House version of the overall bill, but the House demanded a conference committee. Agreement of both House and Senate was finally achieved on June 8.
Meanwhile, the House had passed its version of the Equal Rights Amendment in October by a vote of 354 to 24. After much contention, it was finally brought to the Senate floor in March 1972 and passed, then sent to the states for ratification. Twenty-two states ratified the Equal Rights Amendment in 1972, eight in 1973, three in 1974, one in 1975, none in 1976, and one in 1977. But by then three states had rescinded their ratification, and three more did so by the end of 1979. In an effort to give the ERA another chance, Bayh fought for an extension of the seven-year ratification period and succeeded in getting a new deadline of June 30, 1982, but the ERA was never ratified by the requisite 38 states. Indiana was the last to ratify it, in January 1977.
Unlike the ERA, the Bayh amendment that became Title IX of the Education Amendments of 1972 slipped into law virtually without fanfare. When President Nixon signed the bill on June 23, he spoke a great deal about busing and not at all about educational access for women. Almost unnoticed, Senator Bayh had laid the legal foundation for a revolution in the lives of American women. As committed to it as he was, he could hardly have known how many women’s lives he would touch. Young women today take for granted access to education, athletics, and the futures of their choices; a few decades ago, these everyday realities were the stuff of dreams.
The battle was not over, however, as implementation of Title IX proved at least as arduous as its passage. Over the next three years Bayh rode herd on the Department of Health, Education, and Welfare to get regulations formulated that carried out the legislative intent of eliminating discrimination in higher education on the basis of sex. When they were issued in summer 1975 they were contested, and hearings were held by the House Subcommittee on Equal Opportunities on the discrepancies between the regulations and the law. Implementation by colleges and universities also had to be monitored, although many were working to comply. Clarification of legislative intent was part of the process as well, as for instance when Bayh introduced a bill in November 1974 to exempt fraternities and sororities from becoming unintended victims in the effort to eliminate sex discrimination.
Ultimately, legislation seeking to right the wrongs of society does not eliminate them on its own. Rather, it provides the foundation for a legal framework through which those who are aggrieved can claim their rights. Claiming those rights is done through the courts. Bayh monitored cases claiming Title IX protection from the outset, seeking wherever possible to file amicus curiae briefs to give force to the argument of the plaintiffs. He continues to monitor such cases to the present day.
One of the things that I initially found absolutely inspiring about him was his courage. He was a Democrat from a conservative state. He was outspoken for civil rights and voting rights when that wasn’t all that popular in the state of Indiana. He was a very early supporter of women’s rights. He was the author of Title IX. He was the author of the Equal Rights Amendment.
— Nancy Papas, former staff member
He hated injustice. He just did not like that at all.
—Ann Latscha, former staff member
He really brought about justice and equality in this nation, and hopefully the people of Indiana won’t forget about that.
--Joe Smith, former staff member
Although African Americans had been leading the movement for social justice in the United States for nearly a century, it was not until the 1954 Brown v. Board of Education decision that their work garnered widespread publicity. The decision that separate schools were inherently unequal led to peaceful demonstrations focused on reclaiming other accommodations and public facilities as well. John F. Kennedy had during his 1960 presidential campaign promised a new Civil Rights Act, which was finally introduced in 1963. Upon his assassination, few expected Lyndon Baines Johnson of Texas to take up the charge, but he did so, and on June 19, 1964, the Civil Rights Act of 1964 was passed, forbidding segregation in public facilities and requiring that employers provide equal employment opportunities regardless of race.
The Civil Rights Act also tried to tackle the problem of denied voting rights in the Deep South by stating that uniform standards must be established for the right to vote and that completion of the sixth grade constituted legal proof of literacy for those purposes. But African Americans were still routinely deprived of their right to vote, giving rise to the Selma-to-Montgomery March for voting rights. On “Bloody Sunday,” March 7, 1965, some 600 civil rights marchers headed east out of Selma on U.S. Route 80. Six blocks away, at the Edmund Pettus Bridge, state and local lawmen attacked them with billy clubs and tear gas and drove them back into Selma.
Bayh’s response was public outrage, and he placed the blame squarely on the governor of Alabama: “What are twisted minds to think when the Governor of a state orders armed troopers to use their billie-clubs against men and women kneeling in prayer? It is not possible for persons in positions of authority to use the might of the state to suppress a portion of the citizenry without encouraging the lunatic fringe to take the law into its own hands. The entire world witnessed the unforgivable desecration of everything for which our Constitution, our flag, and our nation stands. As long as situations such as that prevailing in Selma, Alabama, are permitted to recur, none of us will be completely free.”
Eight days after “Bloody Sunday” President Lyndon Johnson took to a joint session of Congress his request for voting rights legislation to ensure that no American citizen would be barred from the polls. Five months later the Voting Rights Act of 1965 was signed into law. With assurances that they could not be legally disenfranchised, African American communities became politically vibrant, and African American leadership began to emerge throughout the nation. In Gary, Indiana, Richard Hatcher was elected mayor in 1967, the first black mayor in Indiana and one of the first in a northern industrial city. He held the office for 20 years.
On April 4, 1968, Martin Luther King, Jr. was assassinated, sending a shock wave through the nation. For those in the struggle for social justice, the question was whether to continue the path of peace on which King had led them or to listen to those who advocated more violent means of confronting the hatred and repression around them. In this atmosphere, California Congressman James Utt on May 9 introduced into the Congressional Record a set of four articles by John J. Synon entitled “Gary: A City Without Hope” which he contended showed “the hopelessness of life in a city which has suffered a breakdown of law enforcement.” On May 24, Congressman John Rarick of Louisiana introduced the same four articles, describing their author as a syndicated columnist who “has detailed a factual account of the frightening death of a midwestern city” which Rarick attributed to “the attempts of the social mechanics to force, by law, social justices against the will and wants of our people.”
Bayh responded on the floor of the Senate and in the press with fury. The “syndicated columnist,” his staff had discovered, was nowhere listed as a journalist but had been a lobbyist for the State of Mississippi working against passage of the Civil Rights Act of 1964. What seemed to be provoking the author was the fact that Gary, Indiana, was “alive and well and making progress” confronting the same problems as other cities and doing so with a diverse population and under the leadership of its African American mayor. Reprimanding the members of Congress for inserting material into the Congressional Record without providing the author’s credentials, Bayh exhorted his colleagues: “This is old stuff. We are used to the hatemongers in our midst and we are great and strong enough to allow them to spew their venom and watch it run off into the sewers which spawned it.” But he warned of their purpose, which was “to spread lies so as to inflame passions.”
If anything, such incidents heightened Bayh’s concern about the African American experience and his desire to understand it more fully. An encounter at an African American leadership meeting in Indianapolis led him to ask Gordon Alexander to join his staff in mid-1968. Alexander had worked in community development in his native Philadelphia, then been recruited to work in similar programs in Indianapolis, and, like many young African Americans, had experienced Martin Luther King’s death as a moment of decision. He did not feel that the American system had as yet been adequately tested for its ability to create social justice, a conviction shared by Bayh. Recognizing that Bayh’s concern was deeper than the political, Alexander connected him with national, state, and local leaders, taking him into living rooms, community centers, and church basements for events and discussions—and above all to listen.
One result of this expanding involvement was that Bayh was invited to speak in Greene County, Alabama on August 11, 1969, at the inauguration of six African Americans. The election of these four county commissioners and two members of the board of education gave African Americans a majority on both bodies. Despite the fact that the county’s population was 80 percent African American, the six candidates had been omitted from the ballot the previous November. Their election was the result of a special July election ordered by the Supreme Court. Standing on a flatbed truck beneath the hostile gaze of a defeated white candidate, Bayh, along with national leader Ralph Abernathy, lent their support to the beginnings of democratic government in Greene County.
The Jackson State University Shootings
The movement for social justice ran to some extent parallel to the movement against the war in Vietnam. When the United States began bombing North Vietnam in 1965, marches and demonstrations developed on college campuses all over the country. With over 400,000 troops in Vietnam and the launching of the Tet Offensive in late January 1968, antiwar sentiment spread well beyond the campuses. Eugene McCarthy’s bid for the presidency as an antiwar candidate and the brutal treatment of demonstrators by the Chicago police during the 1968 Democratic convention in August were followed by Richard Nixon’s assuming the presidency in January 1969, ostensibly with a plan for withdrawal from the war. But news in February 1970 of the wholesale slaughter of villagers at My Lai by American soldiers, and Nixon’s announcement in April that U.S. forces had invaded Cambodia reignited antiwar protests throughout the nation. On May 4, at Kent State University, Ohio National Guardsmen fired into the crowd, killing four and wounding 16. Students all over the country responded with protest demonstrations, now also directed against the military force that was being turned against them.
On the evening of May 14, students at Jackson State University in Mississippi were also protesting. In the early morning hours of May 15, Bayh staff member Gordon Alexander received a call from Aaron Henry, the president of the Mississippi NAACP, saying that a large group of state police had fired on the students shortly after midnight and asking if Bayh would be willing to come and provide a federal presence. Bayh, Minnesota Senator Walter Mondale, and California Congressman Don Edwards flew to Jackson that morning. After surveying the scene, they held a hearing at the Masonic Temple to try to reconstruct what had happened. Their horror at the obvious evidence of military-caliber artillery being turned on students seeking refuge in a women’s dorm was captured by the press. Two young men were gunned down in the shootings, one a high school student who happened on the scene while taking a shortcut home from work. Twelve Jackson State students were wounded, left untended while the state police collected their shell casings, at which point ambulances were called.
Bayh and Mondale shared their reactions to the event and the findings of the hearing with their colleagues in the Senate on May 21. On June 13, 1970, President Nixon established the President’s Commission on Campus Unrest, which conducted hearings in Jackson, at Kent State, in Washington, D.C., and in Los Angeles. Faculty, staff, and students testified at the Jackson hearing. There were no arrests and no convictions.
This is a particularly disturbing period in America, a period of tremendous frustration for both our black and our white citizens. There is frustration bordering on rage because year after year this nation seems incapable of arresting the deterioration of its cities; incapable of cleaning up its streets and streams; incapable of halting a war that has cost us more than 42,000 men; incapable of halting crime; incapable of stopping racial intolerance and incapable of eliminating hunger and poverty.
There is new frustration among white Americans in particular because they are beginning to perceive, for the first time, the appalling difference between America’s rhetoric and America’s reality, between what we practice and what we preach. . .
If the shattering of their illusions is a painful experience for white Americans, it is also the first step toward the understanding that will enable us to deal with the real world as it really is—as blacks have known it to be all along. White America is beginning to grasp the reality that amid American affluence there is American poverty. They are beginning to perceive with new depth of understanding that in the land of the free there is injustice.
It is becoming clear to us all, both black and white, that we will either work together to build an open and just society or we will all go down the drain of history paralyzed by hate and fear.
—Birch Bayh, speaking in Macon, Georgia, June 13, 1970
Ensuring Civil Rights: The Judiciary
When the president of the United States nominates judges to the Supreme Court, it is generally assumed that his nominees will be highly qualified and that the constitutionally mandated advice and consent by the Senate will be a relatively smooth process. In 1965, when President Johnson nominated his longtime legal advisor Abe Fortas, confirmation went smoothly. But when he nominated Fortas to succeed retiring Chief Justice Earl Warren in 1968, Republicans and a few conservative Southern Democrats filibustered the nomination until it was withdrawn. They argued that in the past Fortas had not recused himself from cases in which he had advised the president and in which he could therefore be said to have an interest.
In August 1969, President Nixon nominated for the Supreme Court Clement Haynsworth of South Carolina, “an honest man with a fine reputation,” as Bayh described him early in the nomination process. But his conservative judgments with regard to the two great forces confronting the South, industrialization and the expansion of civil rights, moved both labor and African American leaders to urge Bayh to question him closely during the nomination hearings. particularly with regard to situations where he apparently ruled in favor of management of firms in which he held an interest. Bayh did so, and what emerged was a judge who appeared not to recognize his own conflicts of interest. As Bayh and his staff proceeded to investigate further, conservatives who had condemned Abe Fortas in the strongest terms hastened to assert Haynsworth’s purity, and the battle lines were drawn along conservative–liberal and North–South lines. Faced with a man aspiring to the highest court of the land who would not admit to a misjudgment, Bayh persisted in arguing his case, and the Senate finally defeated the nomination 55-45. Bayh was once again thrust onto the national stage and this time at the center of a heated controversy over both the outcome and the process.
For reasons that remain a mystery, on January 19, 1970, President Nixon nominated G. Harrold Carswell of Florida to fill the embattled Supreme Court seat. Carswell was an avowed segregationist and believer in white supremacy, and his judicial record was generally acknowledged to be mediocre. Even key Republicans informally requested a better nominee from the president, but there was also not much stomach for yet another major battle, so Nixon may well have counted on receiving little resistance.
The nomination came during debate over whether to extend the Voting Rights Act of 1965, which only accentuated how easily the hard-won gains for African Americans could be rolled back if the courts could not be counted on to support them. Despite not believing he could summon up the votes to defeat Carswell, Bayh and his staff threw themselves into the effort. Bayh recalled telling them, “We’re probably not going to get more than twenty-five votes, but the people who really care about equality and civil rights will know that some of us have enough courage to stand up.” As it turned out, a group of law students from Yale also cared, paying their own way to Washington to ask Bayh how they could help. Still not convinced their cause had a chance, Bayh suggested that the students go back and with their professors research every case that Carswell had decided in his judicial career. They did so and discovered that he had been reversed in his decisions more than any other judge in the United States. Whenever he had had a chance to rule for open swimming pools, open schools, open housing opportunities, open job opportunities, he had ruled no. In addition, he was abusive in the courtroom.
With their research in hand, Bayh was able to convince 51 senators that the country must do better than Carswell, and the nomination was defeated. It was not a battle Bayh had sought, but as he said later, it was a battle that had to be fought. But the whole episode saddened him, realizing that it was the president of the United States who was sending such a candidate to sit on the highest court in the land. Southern conservatives cried foul, contending that Supreme Court confirmations had become a partisan issue, but the accusation was not justified in Bayh’s case. He contended that he would be happy to vote for a qualified Southern judge and indeed fully supported Nixon’s later nomination of Lewis Powell, whom he knew well from work on the 25th Amendment.
I don’t care if it’s busing or flag-burning or protecting the Constitution in the myriad ways that he did or the things that he did to stand up against incompetent unsympathetic nominees to the Supreme Court, I never ever saw Birch Bayh back down from a principled stand, from a principled fight.
— Louis Mahern, former staff member
Social Justice and Economic Development
Without economic opportunity, there can be no social justice. As Bayh and his staff worked with the African American community both locally and nationally, they learned about the many barriers to economic achievement by African Americans. They began to attack these barriers one at a time, amending existing law, such as the Small Business Investment Act of 1958 and the Housing and Urban Development Act of 1968, to add clauses that guaranteed minority workers equal job opportunities and assured that minority contractors would have the ability to compete for contracts in their own communities and beyond. Such measures as partial surety bond guarantees and the use of certifications of competency provided the foundation upon which a successful business could be built.
Putting African Americans in touch with opportunities within the federal system was also an important part of creating equal economic opportunity. Building a Minority Business Resource Center into the 1976 Railroad Revitalization and Regulatory Reform Act was one step in that direction, and ensuring minority membership on its advisory committee was yet another. Throughout the 1970s Bayh’s staff sought out the opportunities for a multitude of small legislative steps that could equalize economic opportunity for all Americans. It was not flashy legislation, but it was legislation that changed lives.
Birch’s commitment just came from a sense of fairness. There’s got to be equality and there’s got to be fairness, and we’ve got to start somewhere.
— Joe Smith, former staff member
SEEKING JUSTICE: THE NATION’S YOUTH
Bayh was appointed to the Judiciary Committee’s Subcommittee to Investigate Juvenile Delinquency when he arrived in the Senate. Over the course of the late 1960s he had watched the growing increase in juvenile arrests and realized the need for early intervention programs to reach out to young people who did not see prospects for success in the world. He was convinced that the nation’s focus must move beyond incarceration to rehabilitation and that local and community programs were key, but he also felt the problem was national and must thus be supported and guided from the federal level. In 1969 Bayh and Republican Charles E. Goodell of New York sponsored an amendment to the Elementary and Secondary Education Act to make educational programs in correctional institutions an integral part of the federally funded Teacher Corps program.
In January 1971 Bayh became chairman of the Subcommittee on Juvenile Delinquency. He was particularly interested in exploring alternatives to a system that seemed to be turning young offenders into criminals. He began with an agenda that would examine the current system for what it was doing right, what it was doing wrong, and what it was not doing that it should be. Over the next decade this led him and the subcommittee into nearly simultaneous lines of inquiry into a host of interrelated issues: the protection and guidance of runaways; juvenile incarceration and correctional facilities; drug use, abuse, availability, and regulation; rehabilitation for addicts; control of handguns; and school violence.
Bayh used public hearings as a potent legislative tool, to define the issues through expert testimony, to closely investigate those issues, to consider alternative legislative approaches, to influence relevant agencies as well as the general public, and to examine the implementation of programs funded under congressional mandates. Through the hearings, publication of reports on them, and the legislation he introduced, Bayh and a group of highly committed staff members tenaciously pursued, and brought about, a complete overhaul of the juvenile justice system, including creation of the bureaucratic structures that would ensure its longevity.
Subcommittee hearings began at the end of March 1971with examination of the federal role regarding juvenile delinquency. In May, five days of hearings on conditions in juvenile correctional institutions drew in witnesses from all over the country. Attorney Lois Forer’s 1970 book, “No One Will Lissen”: How Our Legal System Brutalizes the Youthful Poor, was one of the first to reveal the devastating condition of the so-called juvenile justice system. Using case studies, it illustrated how hatred, violence, despair and wasted human possibilities were the products of current practice, particularly among the children of the poor. The hearings reinforced that conclusion and opened up a whole range of issues that demanded investigation. Bayh had originally intended to quickly offer alternative legislation to the Juvenile Delinquency Prevention and Corrections Act (JDCPA) of 1968, but as he became more aware of the complexity of the interrelated issues, he introduced instead a one-year extension of the 1968 act, which would presumably allow Congress time to complete its studies.
Bayh’s first attention to drug abuse was also in March 1971, when he introduced legislation to change Department of Defense policy with regard to addicted soldiers returning from Vietnam. Rather than punitive discharges and no treatment, his bill assured them medical discharges and a program of hospitalization and treatment for up to 42 months.
In July 1971, the subcommittee tackled the abuse of amphetamines, gathering testimony from young former abusers. Bayh’s first goal had been to bring the drugs under stricter federal regulation rather than allowing their rampant use as diet pills. He opened a second set of hearings in February 1972, with the observation that the widespread availability of amphetamines as diet pills was responsible for their growing abuse. By that time publicity about the problem had prompted government action and within weeks the 1972 production quota was cut.
Hearings on barbiturate use and abuse began in December 1971 with testimony from young former addicts, many of whom had had no idea that barbiturates were addictive. They found themselves experiencing more harrowing withdrawals than if they had been on heroin, which was now being overshadowed by barbiturates as the most commonly abused drug among youth.
In November 1971 Bayh had introduced his Runaway Youth Act, intended to provide halfway houses and counseling for runaways to prevent their being swept into the juvenile justice system. In January 1972 he held a carefully structured hearing that established the need for additional legislation, presented the operational details of a runaway house, and examined law enforcement procedures and various programs for dealing with runaways around the country. The subcommittee also held hearings on a bill to establish an Institute for Continuing Studies of Juvenile Justice, which Bayh had introduced the previous April, with a companion bill being introduced in the House. The proposed institution was to be a clearinghouse and training center representing a federal response to the juvenile delinquency crisis.
An intensive continuation of hearings on drugs revealed how pervasive barbiturate abuse was and exposed the problem of legally produced drugs being diverted to illegal use. The June 1972 hearings took testimony from drug company officials and led to three bills introduced by Bayh in 1973, transferring the most commonly abused barbiturates to tighter federal controls, requiring identifying marks on legally produced barbiturates, and requiring tracer elements in those under tightest control so that any diversion to illegal use could be tracked.
Bayh also held hearings on his Juvenile Justice and Delinquency Prevention Act (JJDPA) in May and June of 1972. He reintroduced the legislation in early 1973 and held hearings in February, March, and June looking at model programs throughout the country, the full range of agencies and organizations with promising approaches, and the need for federal support as articulated by local law enforcement officials. On September 7, 1974, the JJDPA was signed into law. The Judiciary Committee had cut the funding and failed to place programs under the Department of Health, Education, and Welfare, as Bayh had hoped, but the bill did establish a National Institute for Juvenile Justice within the Department of Justice, and the House-Senate conference committee had incorporated Bayh’s Runaway Youth Act into the bill.
Passage of the Juvenile Justice and Delinquency Prevention Act of 1974 was only the beginning. Bayh worked to make the focus on prevention and creation of a truly just juvenile justice system a national concern, speaking widely on the topic and urging the National Democratic Party Platform Committee to adopt juvenile delinquency prevention as a priority for the 1976 election. As important as building public pressure in support of the act and its programs was, ensuring that it was not allowed to expire was equally important, which required maintaining awareness among congressional colleagues of the work, the need, and the legislation that required their support.
Meanwhile, the fight against drug abuse was ongoing and becoming more complex. The overarching question in the hearings on the use and abuse of methadone was whether agencies were using it to help addicts break their heroin addiction or simply replacing one addiction with another without the rehabilitative programs to support breaking addiction altogether. Hearings were held in November 1972 in Los Angeles and San Francisco, and in February 1973 in Omaha, Indianapolis, and Louisville to gather testimony from personnel working with methadone programs. The hearings report brought together 950 pages of testimony and materials. Senator Marlow Cook of Kentucky introduced Senate Bill 1115 in March 1973, which became the Narcotic Addict Treatment Act of 1974, signed into law on May 14, 1974. It established supervision and regulation by both the Department of Justice and the Department of Health, Education, and Welfare of treatment programs using methadone and other narcotic drugs.
No sooner had the Subcommittee on Juvenile Delinquency tackled one source of drug abuse than another seemed to appear on the scene. In November 1972 the press noted methaqualone as the latest replacement for marijuana, and in March 1973 Bayh introduced a bill to place it on the more restrictive Schedule II of the Controlled Substances Act, the same status he was advocating for barbiturates. He opened hearings on his bill on March 28, and on April 5 the Secretary of the Department of Health, Education, and Welfare recommended the status change. Four weeks later the same status change was implemented for the barbiturates Bayh had long sought to restrict.
With the growing abuse of drugs obtainable legally, pharmacists were experiencing pressure and an increasing number of criminal attacks by users and drug dealers. Realizing that pharmacists were on the front line with regard to these legally obtainable drugs, Bayh and his subcommittee held a hearing on March 28, 1974, to determine whether the Comprehensive Drug Abuse Prevention and Control Act of 1970 needed improvement in order to support pharmacists in their dual role in the health care delivery system and in the battle against drug abuse. Another question raised by the growing number of dangerous legal drugs being abused was whether marijuana, which was considerably less dangerous than many of them, really merited remaining on the criminalized list. Hearings on the possible decriminalization of marijuana took place May 14, 1975, and produced three volumes of testimony and supplemental materials. Legislation was, however, not forthcoming.
As early as the hearings on the abuse of amphetamines in December 1971, Bayh had become concerned about the use of amphetamine-like drugs, such as Ritalin, to control children’s behavior and began monitoring the procedures followed by the Bureau of Narcotics and Dangerous Drugs. The subcommittee’s July 31, 1975, hearing on drugs in institutions focused on the improper use of drugs, primarily for control and management purposes, often of juveniles, the mentally ill, and the mentally retarded. This hearing was to lay a foundation for the subcommittee’s more extensive investigation, which was to include examination of drug abuse and trafficking within institutions, but the improper use of drugs by those in authority proved extensive enough to merit continued attention in the hearings in August as well. It also became part of Bayh’s growing concern with the civil rights of the institutionalized.
Investigation of drug abuse led the Subcommittee on Juvenile Delinquency eventually into the realm of international drug politics. Hearings were held in July and August 1976 to explore ways of controlling the “heroin barons,” reported in Global Connection: Heroin Entrepreneurs and IRS: Taxing the Heroin Barons. The subcommittee had already undertaken extensive hearings on the cultivation and use of opium in 1975, producing two volumes of hearings reports on how the Comprehensive Drug Abuse Prevention and Control Act of 1970 was being used to block importation of opium and its end-product, heroin. The hearings led them to inquiries related to Turkey, Mexico, Poland, Pakistan, Iran, Ecuador, and Peru as well as to domestic poppy production.
Guns and violence also were on the agenda of the Subcommittee on Juvenile Delinquency. Early in his chairmanship, Bayh opened hearings on an amendment to the Gun Control Act of 1968 that he had introduced to prohibit the mail order sale of handguns or “Saturday night specials.” The September 1971 hearings were continued in October, and in August 1972 he opened debate on the bill, but it did not pass. In 1975 Bayh introduced an amendment to the Omnibus Anti-Crime Bill to control handguns and held hearings, but was unable to carry the conclusions into legislation.
The subcommittee also investigated the problems of school violence, hearing testimony in 1975 from national educational leaders, school administrators, teachers, students, school security personnel, parents, citizen activists, and advocates for students’ rights. Their final report on the hearings, “Challenge for the Third Century: Education in a Safe Environment,” indicates that Bayh and his staff were fully aware that what they had initiated was only the beginning of a long struggle to reclaim the future for the nation’s youth.
In 1977 the activities of the Subcommittee on Juvenile Delinquency were subsumed by a reorganized Subcommittee on the Constitution, and Chief Counsel John Rector became director of the Office of Juvenile Justice in the Department of Justice, enabling him to carry forward the programs he and Bayh and the subcommittee staff had worked to implement for the previous six years. But Bayh remained ready to take up the cause as needed. When Rector arranged public hearings on juvenile incarceration in 1978, conducted by the pioneering Children’s Express journalists, the Justice Department balked at publishing hearings conducted by “kids.” Bayh stepped in and sponsored publication of their report, “An Investigation by Children of the Inappropriate Incarceration of Children,” which was issued as a print of the Senate Judiciary Committee’s Subcommittee on the Constitution in October 1980.
NATIONAL SECURITY AND THE RIGHT TO PRIVACY
In 1975 a Select Committee to Study Governmental Operations with Respect to Intelligence Activities was established by the Senate in the wake of revelations about CIA and FBI activities directed at U.S. citizens. The committee became known as the “Church Committee,” named for its chairman, Senator Frank Church of Idaho. In 1975 and 1976 the committee published 14 reports on their investigations into the formation of U.S. intelligence agencies, their operations, and the alleged abuses of law. The abuses included attempting to overthrow legitimate governments and assassinate foreign leaders; using covert action to disrupt and discredit lawful domestic groups; and taking covert action against American citizens, such as the extensive FBI campaign against Martin Luther King, Jr.
Their findings were shocking both in terms of the numbers of Americans affected and the lawful organizations that had been infiltrated and reported upon. American citizens’ mail had been opened, photographed, and indexed in a CIA computer system. American citizens had been subjects of intelligence files compiled by the U.S. Army, the IRS, and the FBI. Among the diverse groups that had been under surveillance were the Women’s Liberation Movement, the NAACP and the Conservative American Christian Action Council. Startling examples of the use of intelligence information were revealed, as were the wide array of surveillance techniques. The conclusion of the Church Committee was that “clear legal standards and effective oversight and controls are necessary to ensure that domestic intelligence activity does not itself undermine the democratic system it is intended to protect.”
A first step was the establishment of an oversight committee, the Senate Select Committee on Intelligence, in June 1976. Bayh was appointed to this committee, chairing its Subcommittee on Intelligence and the Rights of Americans. The question confronting his subcommittee and the committee as a whole was “How can the fundamental liberties of the people be maintained in the course of the government’s effort to protect their security?”
The committee held five days of hearings in August 1977 and began work on an electronic surveillance bill that required a court order for all surveillance within the United States. President Jimmy Carter announced an executive branch reform of the intelligence agencies on January 24, 1978, but Bayh argued that was not sufficient. The problem was this: “First, our intelligence agencies are vital to the success of this country’s foreign and military policies. Second, these agencies will always be a potential threat to the rights of Americans, because they operate in secret and because they have massive information-gathering capabilities. And third, the best way to preserve our rights is to place strict legal limits on intelligence activities that may affect Americans.”The response from the Select Committee on Intelligence was the Foreign Surveillance Intelligence Act (FISA) of 1978.
Once FISA passed, there still remained a great deal of work to do in establishing the charters for the various intelligence agencies. But the standard had been set that “a court order would be required for all electronic surveillance in the United States that overhears U.S. citizens and resident aliens.” FISA would remain the standard for electronic surveillance until the decision by President George W. Bush to allow the National Security Agency to circumvent the FISA process.
Every since the federal government had been funding research, the question had been raised: who owned government-sponsored research and who could therefore profit from it? In the absence of a uniform federal policy, agencies improvised. By 1978, twenty-two different funding agencies were disposing of patent rights in 22 different ways, in effect keeping an increasing number of promising inventions in storage.
When the Bayhs were confronted in spring 1978 with a recurrence of Marvella’s cancer, they discovered that a technology that could predict a patient’s reaction to chemotherapy was held up by restrictions on patent rights for federally sponsored research discoveries. Out of Bayh’s frustration came a joint effort with Republican Senator Bob Dole of Kansas to develop legislation that would grant universities, other nonprofit groups, and small businesses the rights to inventions made under federal research and development contracts. This effort rescued the estimated 28,000 promising inventions that were sitting on government shelves. The University and Small Business Patent Procedures Act, generally known as the Bayh–Dole Act, was signed into law by President Jimmy Carter on December 12, 1980.
I think that he was ahead of his time in that he saw issues and problems before they became the problems and tried to do something about it.
—Ann Latscha, former staff member
The 1973 oil crisis was a wake-up call for the United States. On October 6, Egypt and Syria attacked Israel in an attempt to reclaim lands lost in the 1967 Arab–Israeli War. The Soviet Union provided support for the Arab States and the United States gave support to Israel. On October 17, the Arab members of the Organization of Petroleum Exporting Countries (OPEC) announced that they would no longer ship petroleum to nations that had supported Israel and began using their leverage to quadruple world oil prices.
Congress responded with moves to develop the Alaska–Canadian pipeline, which Bayh supported, but he also began looking closely at what appeared to be price-fixing practices by oil companies. He sued the Federal Trade Commission (FTC) in spring 1974 to demand that prehearing conferences between the FTC and the eight major oil companies be made public. In 1975 he became a member of the Judiciary Committee’s Subcommittee on Anti-Trust and Monopoly, which had been holding extensive hearings on monopolistic tendencies in a variety of sectors, among them the energy industry.
On September 22, 1975, Bayh introduced legislation to break up the “vertical integration” of the oil companies, or concentration of control of all aspects of oil production within a single company. The following day the Judiciary Committee’s Subcommittee on Anti-Trust and Monopoly heard testimony that the oil industry had allowed one of the nation’s richest oil-producing areas to be pumped at less than half its capacity during the first six months of 1975 in the hopes of further price increases.
Bayh’s Petroleum Industry Competition Act was approved by the Subcommittee on Anti-Trust and Monopoly in April 1976 and sent to the Judiciary Committee. On June 28, it was sent to the full Senate, calling for vertical divestiture of 18 oil companies. It did not pass. Bayh reintroduced it in January 1977 at the beginning of the 95th Congress and again in January 1979 when the 96th Congress opened. Again it did not pass.
The energy crisis of the mid-1970s seemed to present Americans with the choice of being held hostage either by OPEC, or by the oil companies, or both. Development of alternative fuels was one possible way out. In October 1977 Bayh introduced legislation to provide tax incentives for production of alcohol fuel. He and Congressman Floyd Fithian hosted a meeting in Indianapolis in October 1977 to discuss “gasohol,” a combination of petroleum and corn products, and that same month he was part of a gasohol rally and parade in Washington, D.C., designed to generate public awareness of the potential of alcohol fuels. From his position on the Appropriations Committee and as chairman of its Subcommittee on Transportation, which he had assumed in 1975, he was able to oversee funding to put in place the pieces of a structure to support study, research, and development of alcohol fuels. Throughout 1978 he continued to promote the potential of alcohol fuels and to support legislation related to agriculture, energy, economic development, and tax policy that would create incentives for alcohol fuel development.
In October 1978, Congress approved the creation of a National Alcohol Fuels Commission, and in June 1979 it was funded. Bayh was appointed chairman. In the 18 months during which Bayh chaired the National Alcohol Fuels Commission, it undertook a marathon agenda. It conducted hearings around the country to explore sources of alcohol fuels and how they might be produced in various agricultural and industrial contexts. It issued numerous publications, ranging from analysis of the potential of ethanol to surveys of federal funding opportunities for alcohol fuel development. Bayh worked behind the scenes with President Carter, the Department of Energy, and the IRS to create the framework for grants, contracts, and tax incentives for alcohol fuel development and production. It was a constant uphill battle against the oil interests, but, as always, Bayh simply did not give up. His nonstop activity in conducting hearings, sponsoring conferences, encouraging interested businesses large and small, and developing supportive legislation for alcohol fuel development laid a foundation that could have put the United States well along the path toward energy independence by the year 2000, had that been the path it chose to follow.
LEADERSHIP AND VISION
Bayh’s vision for the country’s energy future was in many ways not unlike the vision that had motivated him ever since he entered public service. Described in his first years in the Indiana legislature as among the more conservative of the Democrats, he believed that people will build their own futures if only the barriers to opportunity are removed. He was no enemy to challenges, thriving on them himself and growing to meet the next ones with a sense that if he just worked hard enough, he could do so. And he did. It was that chance that he wished for every child, every person. Much of his legislative work was dedicated to removing the barriers that held others back so that they could rise to the challenges, feel the exhilaration of testing their own powers and succeeding. When he could be part of that, supporting programs to rescue young people from drug addiction, removing the obstacles to women’s achievement in athletics, watching them reach for what they had perhaps never dreamed they could achieve, he was seeing his own dreams realized.
What many refer to as “the Bayh personality,” that spontaneous reaching out to others to listen to them, to share stories with them, to laugh with them, continues to charm and captivate all who meet him, but it is also a major part of what makes his leadership so vital. Politics is about people, he will say, and it is in listening to them, understanding their concerns, feeling what they feel, and simply caring about them that his leadership is grounded. As one of his staff describes it, it is his ability to put his arms around people, to sit down and work with them in a genuine and straightforward way.
Bayh brought the gifts of a fine mind, a love of public speaking, enormous energy, naturalness in personal relations, and insight into others’ concerns to his legislative career. To those he added mastery of the tools of Congress—its procedures, its committees, its schedules, its rhythms—and a fascination with solving problems. The incremental building of federal disaster relief over multiple congressional sessions and the search for alternative paths to a goal that led to Title IX are only two examples of his legislative mastery.
Driving that mastery was his vision of a better world in which the promise of American democracy was extended to all, and no one was subject to the arbitrary withholding of civil rights by another. He had begun in the Senate with bills to reform the military justice system, and in his last years there he worked to ensure the civil rights of the institutionalized. Wherever he saw injustice, he sought to root it out, whether social or economic. As environmental challenges to the future came into sharper focus, he once again threw his energy, his eloquence, and his legislative skills into trying to launch the country onto a path of embracing the challenge and moving with courage and passion into an uncertain future. His leadership was indeed a gift to Indiana and the nation. We can learn from him what it means to master the art of legislative leadership in a democracy.
There’s an old saying that no man is a hero to his own valet. But I saw Birch Bayh up close. I saw him every bit as close and every bit in different kinds of circumstances as a valet would, and he was and is a hero to me.
— Louis Mahern, former staff member
I think the guy will go down in history as not only a great senator from Indiana, I think he will go down in history as a great senator, a great U.S. Senator who served in a time of giants, and Birch was a giant among giants.
— Ray Scheele, political scientist