Northwestern University Law Review : Colloquy : 2008 : Hasen
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries
By Richard L. Hasen[*]
After the 2008 presidential election season concludes, no doubt there will be calls to change the presidential nomination system, especially on the Democratic Party side. Already before the current season began, Congress explored legislation to prevent the "frontloading" of the primary process through the creation of a series of rotating regional primaries. The close contest for the Democratic Party nomination this winter and spring revealed additional issues beyond the timing question. Critics have argued that the caucus system used in some states is unfair and poorly administered, that the unequal weighting of votes for purposes of delegate selection violates democratic principles, and that the fate of the Democratic Party presidential nomination should not turn on the votes of unelected "superdelegates."
It is certainly possible that the parties themselves will change their nomination rules in response to these criticisms, as the parties have done in the past. But in the event the parties cannot agree on changes, Congress may consider legislation imposing changes to make the nomination rules comply more with the typical "one person, one vote" norms applicable to general elections. At the extreme, Congress might require presidential nominations to occur through state-by-state direct primaries conducted under one person, one vote principles. Here, I explore the question whether Congress has the power to impose such primaries on the parties and the states if the parties, states, or both object. I do not consider the wisdom of such legislation.
As I explain, the main argument that parties can advance against Congressional (or for that matter, state) imposition of a direct presidential primary is that it violates the First Amendment associational rights of political parties to determine their method for choosing their standard bearers. This argument would appear to have much force given recent Supreme Court cases recognizing the parties' rights to overrule the states on the open or closed nature of political primaries. On the other hand, the Court has also accepted as "too plain for argument" a governmental power to require parties to use direct primaries to choose their nominees to assure fairness of the process. So resolution of the question is uncertain.
The second argument that the parties or the states may raise against Congress is that Congress lacks the power under the Constitution to set the rules for presidential elections. Such an argument reads Congressional power under Article II of the Constitution narrowly, limited to setting the time for choosing presidential electors. Though the textual argument under Article II has some force, both Court precedent and policy suggest that the courts could well accept Congressional power to impose at least some regulations on the primary process, such as regulations setting the timing of primaries or caucuses. It is not clear whether congressional power would extend as far as to the imposition of a direct presidential primary against the parties' and states' wishes.
Part I of this Essay briefly reviews complaints from the 2008 election season about the presidential nominating process. Part II considers the party autonomy argument against congressional legislation imposing a direct presidential primary. Part III considers the Congressional power argument. This Essay concludes by noting that even if Congress may lack the power, the threat of congressional action could spur the parties to reform themselves.
I. Complaints About the 2008 Presidential Nomination Process and Possible Legislative Remedies
Each state may make its own rules setting forth who may vote in party primaries, and these rules are subject to constitutional objections by the political parties. Major party presidential candidates are chosen at presidential conventions, whose delegates are chosen through primaries or caucuses conducted in each state. State political parties, generally following the rules of the national political parties (the Democratic National Committee (DNC) and the Republican National Committee (RNC)), set out specific plans for the choosing of delegates for presidential campaigns.
Controversies over the
2008 presidential nominating process began with a dispute over the timing of
state contests. The two major political
parties set out rules limiting when states could set their primaries or caucuses. The Democrats gave a prime position to the
Beyond timing questions, much of the controversy over the 2008 presidential nominating process has focused on problems with the casting and allocation of delegates on the Democratic side. The focus has been there because the contest between Senators Clinton and Obama for the Democratic nomination has been so close. The closeness has increased attention both to election administration issues as well as to the rules in place for allocating delegates to the convention, rules that often deviate from one person, one vote norms applicable in general elections. In early February 2008, I summarized some of the controversies as follows:
The controversies did
not end on Super Tuesday. Voting on the
Democratic Party side in
Perhaps 2008 is aberrational because of the exceedingly close contest. But even if some of the problems from the 2008 nomination season are not likely to recur in 2012, a close election season could come again in a future election, and that potential has already spurred calls for reform. It may be that the parties will reform controversial practices themselves, and that would be the best option to deal with these controversies. But if the parties do not, the states or Congress may try to step in.
Congress may be better situated to make changes than the states, as it can assess the nomination process nationally and impose a solution that avoids interstate competition issues. One Senate committee has already considered legislation to create a rotating regional primary system to end the frontloading problem. But I also expect there will be more far-reaching proposals, such as those requiring that the parties choose their presidential nominees through primaries, perhaps conducted under a one person, one vote standard. Under such a proposal, parties would still be able to allocate delegates however they see fit for other party purposes, such as approving the party platform. But the presidential selection choice would have to reflect the results of party primaries, weighing each state's primary voters' votes equally. The remainder of this short Essay considers the constitutionality of such legislation.
II. Party Autonomy Objections to Mandatory Direct and Equal Primaries for Presidential Nominees
Political parties objecting to proposed legislation establishing mandatory one person, one vote primaries in each state for choosing presidential party nominees would argue that such legislation violates the parties' First Amendment right of freedom of association. This is not the place to canvass all of the law related to regulation of the major political parties, which for some purposes are treated as state actors and for other purposes as private associations entitled to protection from government interference. Here I focus specifically on whether such a mandatory primary system would violate the First Amendment.
Parties certainly can draw upon Supreme Court caselaw establishing that the First Amendment bars states from requiring that primaries be "open" or "closed" to nonparty members. Moreover, the Court has held that while a state can hold an open or closed primary as it wishes to choose delegates to the presidential nominating convention, the state cannot force the national political parties to seat those delegates at the convention.
In addition, lower courts have rejected challenges to party rules on grounds they violate the usual rules we apply to democratic elections, such as the one person, one vote standard. In Bachur v. Democratic National Party, the Fourth Circuit rejected a challenge to a DNC rule requiring proportional representation of women among delegates. In so holding, the court reasoned that because primary votes are so removed from the ultimate choice of presidential party nominee, and because delegates perform a number of internal party functions besides choosing a nominee, rules applicable to general elections need not apply:
Given these precedents,
one might think that Congress would have a hard time convincing the courts that
such legislation is indeed constitutional. However, dicta from three Supreme Court cases, one as recently as this
term, gives hope to those who support the constitutionality of such a law. The dicta originated in American Party of Texas v. White in which the Court upheld a
The "too plain for argument" language appears in two other Supreme Court cases as well, and it has now taken an interesting turn that could boost the chances of the congressional legislation this Essay considers. In California Democratic Party v. Jones, the Court cited the White language in noting that "[s]tates have a major role to play in structuring and monitoring the election process, including primaries." Then this term, in New York State Board of Elections v. Lopez Torres, Justice Scalia, speaking for seven Justices, explained that "when the State gives the party a role in the election process":
Significantly, the "too plain for argument" language appears to have shifted in meaning from White to Lopez Torres. In White, the concern seemed to be about the state's power to require a primary or convention for each party (as the state chose) so as to assure a rational winnowing out of candidates. By Lopez Torres, however, the Court appears to have embraced a "fairness" rationale for the use of primaries.
The fairness rationale set out in Lopez Torres lends considerable support to the idea of a requirement of primaries conducted on a one person, one vote basis. Congress could decide that the usual democratic norm of one person, one vote is important enough to apply to all stages of the presidential electoral process. If even local government elections must comply with the one person, one vote rule, why not the first stage of the presidential nominating process, which affects the entire nation?
The importance of the fairness rationale in Lopez Torres could be overstated, however. The discussion there was dicta not dispositive to the case's outcome. And though the dicta may seem "too plain for argument" when not examined closely, the proposition that the government can overrule the parties in their choice of standard bearer may make for a difficult argument upon close examination.
III. Congressional Power Objections to Mandatory Direct, Equal Primaries for Presidential Nominees
Even if one accepts White, Jones, and Lopez Torres as authority for states to require direct, equal primaries on fairness grounds, it is not clear that Congress has the same power to do so in presidential elections. It is to this issue that I now turn. Though Article I, Section 4 of the Constitution gives Congress the power to regulate the time, place and manner of congressional elections, Article II gives Congress only the power to set the time for choosing presidential electors, leaving the "manner" for choosing electors in the hands of state legislatures. Based primarily upon this textual difference, some have argued that Congress lacks the power to impose rules related to the presidential nominating process.
The textual argument may not carry the day. No doubt, Congress's power to regulate presidential elections is not coextensive with its power to regulate Congressional elections. For example, Congress could not pass a law barring states from using a "winner-take-all" system for choosing presidential electors. But Article II of the Constitution does grant Congress the power to set a uniform national date for the general election for president, and that power to set the time for the general election should extend (under the Necessary and Proper Clause) to the power to set the time for the nomination of presidential candidates as well. It is a harder question whether it extends to the power to set the form of the presidential primaries over the objections of the states.
Justice Scalia, relying on the Necessary and Proper Clause, concluded that Congress had the power at least to set the time for primaries in a 1981 article written before he joined the bench: "Since . . . Congress has explicit authority under Article II . . . to [determine the time for choosing electors], Congress must have at least the authority to specify the dates of primaries and even of state and national nominating conventions." Justice Scalia also relied upon the Supreme Court precedent of United States v. Classic, which used similar reasoning under Article I to hold that Congress could regulate Congressional primaries as well as general elections for Congress.
Other Supreme Court caselaw bolsters the conclusion that Congress has the power to set the time for presidential primaries and perhaps to do much more. In Burroughs v. United States, the Court "squarely rejected" the narrow textualist reading of Article II. The Court held that Congress had the power under Article II to regulate corrupt practices that could affect presidential elections. In Buckley v. Valeo, the Court upheld Congress's power to regulate campaign financing in both congressional and presidential elections. And in Oregon v. Mitchell, the Court upheld Congress's power to change the voting age for President to 18. Justice Black cast the decisive vote on the issue, concluding that "[i]t cannot be seriously contended that Congress has less power over the conduct of presidential elections than it has over congressional elections."
Professors Mayer and Busch have criticized Justice Black's opinion as a "travesty of legal reasoning," given the Constitution's textual differentiation between Congressional power over congressional and presidential elections. But regardless of the merits of the legal analysis, the Justice's opinion (like the majority opinions in Burroughs, Classic, and Buckley) remains good law unless overruled by the Court.
Indeed, a ruling striking down a congressionally imposed primary system as exceeding Congress's Article II power would call into question a great many congressional laws that regulate presidential elections, from campaign finance, to election administration (including aspects of the National Voter Registration Act and Help America Vote Act), to the 18-year-old presidential voting age. That is not a step the Court would take lightly.
Nonetheless, a law establishing mandatory, equal, and direct primaries for President would go much closer to setting the rules for choosing presidential electors than these other laws do, and might infringe upon the rights expressly granted to the states in Article II. Such a law would pose a difficult question for the courts: whether Congress, in order to insure fairness and uniformity in the presidential nominating process, could go so far as to impose such a system over the objections of states interested in maintaining their current levels of control over party primaries or caucuses.
How might the Supreme Court resolve this conflict? Consistent with the Lopez Torres fairness dicta, it could hold that Congress has the power to make certain changes to the presidential nomination system under its power to enforce the Fourteenth Amendment's equal protection clause, and that this congressional power supersedes Article II when states act in ways that undermine political equality. The one person, one vote cases are grounded in the Equal Protection Clause, and a congressional determination that equality in presidential elections requires imposition of the same rule in presidential party nominating contests would merit serious consideration by the Court.
Concerns about the fairness and administrability of the 2008 presidential nominating process will no doubt spur serious discussions about reform. These discussions will take place in states and within each political party. Congress may also seek to play a role. Congress's constitutional power to act in this area, however, is uncertain, but that uncertainty may not be fatal. Indeed, congressional threats to legislate change could be the spur that gets the parties and the states to change their system to less controversial ones that conform more to the standards we apply to our general elections.
*. Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles. Thanks to John Khosravi for research assistance and to Kathy Biber Chen, Heather Gerken, and Tova Wang for useful comments and suggestions.
1. See Regional Presidential Primary and Caucus Act of 2007: Hearing on S. 1905 Before the S. Comm., on Rules & Admin., 110th Cong. (2007), available at http://rules.senate.gov/hearings/2007/091907TranscriptCorrected.pdf (link) [hereinafter Hearing on S. 1905]. I testified at that hearing on the constitutionality of S.1905. My testimony is posted at http://rules.senate.gov/hearings/2007/HasenTestimony091907.pdf (link).
2. See Tova Andrea Wang, The Nevada Caucus Dustup: The Nevada Caucus,
Part III, The Century Foundation Blog, Jan. 22, 2008, http://www.tcf.org/list.asp?type=NC&pubid=1783
(link); Tova Andrea Wang, The Century Foundation, Has
America Outgrown the Caucus? Some
Thoughts on Reshaping the Nomination Contest (2007), available at http://www.tcf.org/publications/electionreform/caucusbrief.pdf
see also infra Part I.
Daniel Hays Lowenstein & Richard L. Hasen, Election Law: Cases and Materials 473 n.m (3d ed. 2004).
4. See Jennifer Parker, Obama or Clinton: Will Party Elite or Voters Decide?, ABC News, Feb. 8, 2008, http://www.abcnews.go.com/Politics/Vote2008/Story?id=4261986&page=1 (link) (recounting controversy over "superdelegates"); see also id. (defining "superdelegates" as "state party leaders, national party leaders and former Democratic presidents—who get to act as free agents at the party's convention able to back any candidate they wish."). Indeed, some superdelegates, mostly state party chairs, have more power than others, because they can appoint up to five additional superdelegates to the convention. See Stephen Ohlemacher, Some Superdelegates More Super Than Rest, Associated Press, Apr. 4, 2008, available at http://ap.google.com/article/ALeqM5iUzNyFcNiwI9wJ5hiwqFnxejeZJwD8VQTKGG2 (link).
5. See infra Part II.
6. See infra notes 29–37 and accompanying text.
7. See infra Part III.
10. For an overview of the presidential primary process and the development of the direct primary for choosing nominees of the major political parties, see Alan Ware, The American Direct Primary: Party Institutionalization and Transformation in the North (2003). I focus here only on the two major political parties, the Democratic and Republican parties. My analysis may not apply to minor political parties.
11. See Democratic National Committee,
Delegate Section Rules for the 2008 Democratic National Convention as adopted
Aug. 19, 2006, R. 11.A, available at http://s3.amazonaws.com/apache.3cdn.net/3e5b3bfa1c1718d07f_6rm6bhyc4.pdf
Republican National Committee, Rules of the Republican Party as adopted Aug.
30, 2006, R. 15(b)(1)(i) (setting forth the timing of the Republican primaries
and caucuses and barring any primary before February 5, 2008), available at http://www.gop.com/About/Rules11-20.htm
(link); see also Republican National Committee, supra note 11, at R. 16(a)(1) (imposing penalties for states or
state parties that violate the timing rule).
12. See Democratic National Committee, supra note 11, at Rule 11.A.
15. See Ratcliffe, supra note 3.
16. See Karen Brooks and Emily Ramshaw, Caucuses Cause for Contention: Record Turnout puts
Spotlight on System that Some Say Needs Fixing, Dallas Morning News, March 6, 2008, at 1A, available at http://www.dallasnews.com/sharedcontent/dws/news/politics/national/stories/
17. See id.; see also Marty Schladen, Democratic Caucus Disputes Move to Next Phase, Galveston County Daily News, Mar. 13, 2008, http://galvestondailynews.com/story.lasso?ewcd=6379689919a8b7f8 (link); Editorial, Clumsy Democratic Dance: Convoluted Caucus Process Requires Quick Reform, Dallas Morning News, Mar. 12, 2008, at 10A, available at http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/031208dnedicaucuses.481cb2c7.html (link).
18. CNN Political Ticker, Caucus Win Gives Obama More Texas Delegates than Clinton, Mar. 11, 2008, http://politicalticker.blogs.cnn.com/2008/03/11/caucus-win-gives-obama-more-texas-delegates-than-clinton/ (link).
19. See, e.g., Editorial, supra note 17.
20. See Hearing on S. 1905, supra note 1.
21. Parties would remain free to decide whether or not to have open or closed primaries. In an open primary, independents (or sometimes even voters from other parties) are allowed to vote in the primary. In closed primaries, only party members may vote.
22. There are less radical measures that Congress might impose. For example, it might do away with caucuses but not impose a one person, one vote requirement on primaries. Or, Congress might use the carrot of federal primary financing to entice states to adhere to a certain schedule or set of rules. Cf. John Nichols, The Mad-Money Primary Race, The Nation, Jan. 21, 2008, http://www.thenation.com/doc/20080121/nichols (link) ("Congress could promise federal grants to cover all expenses incurred by states that run primaries on a schedule proposed by the commission and accepted by the national parties. That incentive might also encourage states to do away with antidemocratic caucuses . . . ."). Regardless of the specific measures imposed by Congress, the more control left to the states and parties by congressional legislation, the more likely the courts would view the proposed legislation as constitutional. See infra Part III.
23. For a review, see Lowenstein & Hasen, supra note 2, at ch. 9.
24. See Tashjian v. Republican Party of
Conn., 479 U.S. 208 (1986) (link) (holding a
Connecticut law barring the Republican party from allowing independent voters
to vote in party primaries unconstitutional); Cal. Democratic Party v. Jones,
530 U.S. 567 (2000) (link)
(holding a California law requiring political parties to allow any registered
voters, regardless of political party, to vote in party primaries
unconstitutional); cf. Wash. State
Grange v. Wash. State Republican Party, 128 S.Ct. 1184
(holding that a nonpartisan primary allowing candidates to state a "party
preference" on the ballot is not facially unconstitutional).
26. See, e.g., Ripon Society, Inc. v. National Republican Party, 525 F.2d 567, 581–87 (D.C. Cir. 1975).
27. Bachur v. Democratic National Party, 836 F.2d 837, 842–43 (4th Cir. 1987) (upholding Democratic party gender delegate rules).
30. White, 415
34. 128 S.Ct. 791, 797 (2008).
36. See White, 415 U.S. at 781–88.
37. See Lopez Torres, 128 S.Ct. at 797–98.
39. The next few paragraphs draw upon my testimony to the Senate Committee on Rules and Administration, supra note 1.
42. The most sustained argument along these lines in the context of anti-frontloading legislation is William G. Mayer and Andrew W. Busch, Can the Federal Government Reform the Presidential Nomination Process?, 3 Election L.J. 613 (2004).
43. See Dan T. Coenen and Edward J. Larson, Congressional Power over Presidential Elections: Lessons From the Past and Reforms for the Future, 43 William & Mary L. Rev. 851, 903–04 (2002).
44. Antonin Scalia, The Legal Framework for Reform, 4 Commonsense 40, 47 (1981).
47. See Scalia, supra note 43, at 47; see
also Classic, 313
49. James A. Gardner, Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote, 145 U. Pa. L. Rev. 893, 984 (1997).
53. Mayer and Busch, supra note 42, at 617.
55. For a consideration of Congress's power to act under its Fourteenth Amendment enforcement powers, see Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio St. L.J. 177 (2005) (link).
56. See Peter M. Shane, Disappearing Democracy: How Bush v. Gore Undermined the Federal Right to Vote for Presidential Electors, 29 Fla. St. U. L. Rev. 535 (2001) (link) (discussing interaction of Article II and the Fourteenth Amendment).
57. See Avery, 390
Copyright 2008 Northwestern University
Cite as: 102 Nw. U. L. Rev. Colloquy 253 (2008).
Persistent URL: http://www.law.northwestern.edu/lawreview/Colloquy/2008/10