Someone urging a "bold," "decisive," "comprehensive" solution to this or that problem tries to dispel doubts by blithely saying, "Hey, what is the worst that could happen?" If, hearing that, you think to yourself, "Oh, you have no idea," you probably wisely flinch from a federal "solution" to the "problem" of the admittedly messy system of choosing presidential nominees.
Many states that think their interests are being slighted think other states are behaving badly—meaning self-interestedly—by holding early primaries. The entire process is untidy, as freedom often is, and the tidy-minded are threatening to have the federal government fix it.
Congress, they say, should divide the nation into four regions that vote in monthly intervals, with the order of voting rotating every four years. Or Congress should spread the voting over 10 two-week intervals, starting with clusters of small states, with the largest states voting last. Or something.
But all such federal solutions might be unconstitutional. Not necessarily, said Richard Hasen of the Loyola Law School in Los Angeles in recent testimony to a Senate committee. But probably, said William Mayer, professor of political science at Northeastern University, also testifying.
The Constitution gives Congress the power to regulate the time, place and manner of congressional elections. But regarding presidential elections, the Constitution gives Congress only the power to set the time for choosing presidential electors, leaving the manner of selecting them to state legislatures. On the principle that where the Constitution is silent regarding federal power it is permissive regarding states' powers, some argue that Congress has no power to impose regional primaries on states. Furthermore, some Supreme Court rulings imply that such imposition would violate the parties' First Amendment associational rights.
Hasen, however, notes that Article II gives Congress the power to set a single national date for presidential elections and, Hasen says, that power should extend to setting the time for the nomination of presidential candidates. In 1941, the Supreme Court held that Congress could regulate congressional primaries as well as general elections. And the court has read the Constitution as allowing Congress to regulate the financing of presidential as well as congressional campaigns, and the power to change the voting age for elections for all federal offices.
Hasen also argues that were Congress to legislate a national plan for primaries, this would limit the scheduling freedom of states without interfering with the internal workings of the parties. But it would interfere momentously: It would deny the parties the right to make for themselves the potentially high-stakes decision of when to select national convention delegates.
Mayer responds that the federal government has no constitutional authority to compel states to hold presidential primaries on particular dates or to select national convention delegates in particular ways. Furthermore, no government at any level has the power to compel political parties to use a particular way to nominate their presidential candidates.
The Supreme Court, upholding the constitutionality of the Federal Corrupt Practices Act of 1925, affirmed Congress's power to legislate to protect government "from impairment or destruction, whether threatened by force or by corruption." That acknowledgment of Congress's power to protect what Mayer calls "the fundamental integrity" of election processes does not, however, license Congress to legislate against untidiness arising from free choices of the states and parties. Mayer considers it "almost willfully perverse to say that, because the Constitution permits Congress to determine the time of one particular step in the presidential selection process, it therefore gives Congress the power to determine the time of every step in the process."
The law long ago stopped treating parties as purely private associations, in part to end the practice of white-only primaries. But since the 1970s the Supreme Court has, Mayer says, "upheld the claims of political parties almost every time they have come in conflict with state law." Parties are not purely private entities, but neither are they appendages of government. They are voluntary associations, cloaked in the First Amendment's protection of freedom of association. And the most important function for which people associate in parties is the selection of candidates.
Anyway, it is premature to pronounce the existing process unsatisfactory, or more so than whatever the next process might be. Regional primaries would penalize some candidates randomly, depending on the order regions voted in a particular year. If there had been regional primaries in 1992 and Southern states had voted last, that might have doomed Bill Clinton, who for the first five weeks won no primary or caucus outside the South. In 1976, Gerald Ford won an average of 60 percent in Northeastern primaries, 35 percent in Western ones. Jimmy Carter won 62 percent in the South, 35 percent in the Northeast, 21 percent in the West.
From one cycle to another, the process evolves as federalism allows—indeed incites—competitive improvisations. The salient question is: Does today's process provide sufficient time and challenges to compel candidates to reveal their characters and skills? It does, thereby demonstrating this: What is messy is not necessarily a mess.