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March 07, 2012 4:44 PM States’ Rights, Party Autonomy and the Nomination Process

By Ed Kilgore

There’s been an interesting indirect debate the last few days, with Super Tuesday providing the context, of the perennial topic of improving the presidential nominating process—or leaving it alone.

At Slate, the estimable election law expert Richard Hason has argued that Congress should intervene to require states to hold primaries rather than caucuses to select national convention delegates. While they are at it, he suggests, they should impose some sort of rational schedule on the process, since the parties seem to be incapable of any effective action in this respect.

These suggestions were not welcomed by my friend the political scientist Jonathan Bernstein, who wrote a column at TNR more or less defending the status quo, partly out of respect for the parties, and partly out of respect for the states.

Readers familar with Jonathan’s views (as articulated most often at his excellent Plain Blog About Politics) know he’s a big fan of the self-regulation of political parties. He often responds to various criticisms of caucuses and primaries by arguing that the presidential nomination process is a much more elaborate process in which rank-and-file voters are a small, and not necessarily decisive, part. This is a strongly held point of view among political scientists these days, I might add, partly due to the influence of the 2008 study, The Party Decides, which stressed the role of elites and activists in pre-conditioning the nomination before voters weigh in.

Aside from his support for party self-regulation, Jonathan also worries that Congress, if invited to get involved in the nomination process, will, well, screw it up: “[R]egardless of what ideas neutral observers can draw up to ensure fairness, Congress is likely to reinforce its own biases when it gets involved.”

I’m neither an election law expert nor a political scientist, but I tend to lean towards Bernstein’s point-of-view on caucuses-versus-primaries and toward’s Hasen’s on the need for an intervention to rationalize the nomination system. It’s sometimes forgotten that there is a considerable range in the rules under which these contests are held. Some caucuses are sufficiently well-supported and organized and offer sufficient encouragement for participation that they are difficult to distinguish from primaries. It’s like the often-artificial distinction between “open” and “closed” primaries or caucuses: in states with extremely liberal party registration rules (or no party registration at all), you can call these events “closed” if you want, but actually anyone can participate. A flat “primaries yes, caucuses no” rule misses a lot of that, and since money is one of the main reason states prefer party-supported caucuses to taxpayers-supported primaries, banning caucuses could just lead to very poorly operated primaries.

But I simply don’t share Jonathan’s reverence for party or state autonomy in supervising the entire process. Yes, he and other political scientists are correct in saying a lot more goes into choosing nominees than the wishes of the rank-and-file. But that’s not necessarily a good thing. You certainly can’t ban the “invisible primary.” But a system in which a handful of states holding low-turnout events exert an enormously disproportionate influence, naturally leads to the spectacle of candidates spending months many months currying the favor of interest and activist groups who happen to be powerful in early states. Change the calendar and you change the “invisible primary” as well.

Does that limit “party autonomy?” Yeah, but so what? Americans have given the two major parties more than sufficient time to create a more rational process with a tighter time-frame and fairer participation in the actual work of choosing a nomnee. They’ve largely failed, despite commission after commission. The reason is simple: the existing early states (and those who wish to join them in the media spotlight), backed by candidate and candidate allies who fear them, and who have a greater stake in the rules than other states, simply have too much power to thwart change. As we’ve seen in both 2008 and 2012, in fact, even serious efforts to impose sanctions on rule-breakers haven’t succeeded. It’s time to cut the Gordian knot, or at least have a real national debate on the system that doesn’t depend on the good will of individual state parties operating through candidate-influenced national party committees.

As for the idea that Congress has no business getting involved in these “state matters,” I’d be very happy if the federal government got generally a lot more involved in election administration. Anybody paying attention has known at least since 2000 about the fundamental rotteness of state (and in many places, local) control of election administration, and the drive for a restricted franchise currently underway in many states is only making it a lot more apparent. It’s hard to imagine Congress—under the kind of judicial scrutiny that national laws facilitate—doing a lot worse.

Any way you slice it, though, it’s good to talk about these issues instead of pretending our current system came down from Mount Sinai on stone tablets. As currently constituted, the nomination system is mainly a boon to those political consultants who know how—or pretend to know how—to navigate it, not to mention the Super-PAC donors we are now apparently encouraging to pay for the whole show.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • martin on March 07, 2012 5:07 PM:

    I've ranted about this here before. Get the States AND the Congress out of the primary business. Let the parties put them on however they want, whenever they want and let them pay for them. The state's full responsibility should be setting the rules and deadlines for getting on the ballot.

    Why should we, the non-party affiliated voter have to pay for the parties's parties?

  • martin on March 07, 2012 5:09 PM:

    By ballot I mean the presidential, not the primary, ballot

  • Ron Byers on March 07, 2012 5:13 PM:

    The Republican and Democratic parties are not referenced in the consitution. Nowhere is it mandated that we will have two and only two parties. Nor is it mandated that the parties have to follow one and only one model for selection of their nominees. I don't know if this technically a states rights issue, but I suspect how political parties select their nominees is a matter best left to the members of each party. I am really reluctant to see either the state or federal government involved too deeply in party activities.

    The current selection process is a mess, but it is primarily a Republican's mess. Let the Republicans sort things out for themselves.

  • Greg on March 07, 2012 5:15 PM:

    While the idea that parties should have consistent nationwide standards is appealing, the current hodgepodge system is, in effect, a two party preservation society. If Congress gets involved, I doubt that this will change.

    Any federal intervention into the state-level party delegate nominating system must level the field with common standards for November ballot access for non-major party candidates. The current gauntlet that is supposedly a vetting system is a macabre mix of hoops of fire that is unfairly weighted to the major parties and then, even moreso, to the small, early states. Perhaps this craziness is because of that strange ultimately deciding creature known as the Electoral College.

    I say this respectfully as a (very) low level official in the Democratic Party in my town. I want MORE democracy when it comes to the big political choices and less marketing and branding emulating Budweiser versus Miller.

    (appropriate Captcha code: petulant)

  • cmdicely on March 07, 2012 7:53 PM:

    I'm neither an election law expert nor a political scientist, but I tend to lean towards Bernstein's point-of-view on caucuses-versus-primaries and toward's Hasen's on the need for an intervention to rationalize the nomination system.

    Fundamentally intervention around the nomination system is (1) unhelpful, and (2) a very bad idea. Its unhelpful because it doesn't address the real problem, which isn't the nomination system used by the parties (which is a symptom that wouldn't occur without the real problem, and wouldn't matter much if it did), but instead the general election electoral system which reinforces duopoly (and which, thereby, creates a high-stakes game with the major party nomination and prevents voters from effectively punishing parties that play games with that process to favor elites.) That's what you fix.

    Its also a very bad idea to get government deeply involved in regulating party nomination processes, because once you do that, then whichever party is able to most effectively leverage control of the government also can exercise substantial control of the major parties, which magnifies rather than mitigates the problem of lack of meaningful voter choice.


    Government direction of political party processes is a

  • Crissa on March 07, 2012 8:19 PM:

    The Feds decided - without an amendment - that states choosing term limits was beyond their ability. Which seemed odd, to me, in a country which seems to have so much reverence for locally controlled elections.

    I think the feds could impose a schedule without impinging upon the constitution and needing an amendment, though. Federal results could ignore events held before certain dates or assign dates to states based upon some sort of lotto or population based system.

    And I certainly think that should be done, rather than specifying primaries vs caucuses.

    Certainly, non-binding primaries and caucuses is kinda annoying, especially when barely a minority of the country has weighed in.

    In California, for our state elections, we chose a first-pair primary system recently. General elections are now based upon the top-two in a race, rather than any particular party. Of course, we can't affect all sorts of races or local or federal, but...

  • Crissa on March 07, 2012 8:23 PM:

    The fact is, in winner-take-all, there's no way that a multiple candidate general election is at all preferable. It just won't happen at the federal level that you have multiple equally supported and desirable candidates that don't take or give more from one other candidate than another.

    It's not a duopolist fantasy, it's just a physical fact that two cleave better than any other number. You pull a piece of paper, and it'll tear into two every time.

  • elisabeth on March 08, 2012 11:31 AM:

    I had to laugh - as I resident of Iowa I never think of this as such a "powerful" state. It's the parties that keep the system going, not the individual states.