Fixing the Presidential Primary System – Part 2

In my last post I talked about some of the bills that have been introduced that attempt to address the mess that our Presidential nominating contests have become. All of these pieces of legislation would seek to federalize the system in one way or another standardizing the process. There is some question as to legality of these remedies. In this post, we’ll look at some of the legal issues that complicate a purely federal solution to the Presidential nominating process.

Nowhere in the Constitution is there any specific mention of the Presidential nominating process as it pertains to political parties. Article II, Section 1 gives Congress the power to determine the time for the selection of “Electors”, but this applies to the general, further, this same section states that State Legislatures have the power to determine “Electors”, however, this applies to the selection of “Electoral College” delegates, who determine the outcome of the general election, not the nominating process. At the time of the Constitution’s adoption, organized political parties, as we know them today, did not exist. Certainly there were factions, but there was no organized party structure.

States and the respective parties currently control all facets of the primary system. States and state parties conduct primaries and caucuses in accordance with state law and the customs of the state party. No federal body currently has any authority over these proceedings, other than laws that ensure voting rights, accessibility and federal campaign finance law.

State law and agreements between the state and national parties determine the timing of Presidential nominating contests. The federal government has no role in the timing of these contests. As we saw at the DNC’s Rules and Bylaws meeting on Saturday, timing has been a difficult point of contention for several cycles. Many states, though Michigan has been leading the charge, feel that Iowa and New Hampshire have too much influence on the system, and too little diversity to play that decisive role. The DNC’s efforts to add South Carolina and Nevada to the “early states”, was an attempt to mitigate this discontent. New Hampshire’s decision to move to the second spot, instead of it’s originally scheduled third spot and the DNC’s decision to not sanction New Hampshire was seen as breaking the compromise and led to Michigan’s decision to move it’s primary.

While states may have the power to set nominating contest dates, they do so with the approval of the parties who then select the delegates in accordance with party rules. States attempting to regulate primaries, or the resulting delegations have been met with court challenges from state and national political parties. The Supreme Court has ruled that such regulation violates their 1st Amendment rights of association. Any attempt at federal regulation may meet with a similar fate.

Turning away from election powers mentioned in the Constitution, Article I, Section 8 gives Congress power to pass all legislation “necessary and proper” for the effective operation of the government. One could argue that federally regulating the Presidential nominating process is the only way to ensure stability and fairness in the system and that such circumstances are “necessary and proper” to ensure the integrity of the process. This argument is a slippery slope however, because the federal government has NEVER controlled the Presidential nomination process, not to mention the arguments I’ve previously detailed.

In summary, any attempt by the federal government to take control of the nominating process would most certainly be met with great resistance from state governments. There is no precedent for federal regulation of the timing or execution of Presidential nominating procedures. Further, because the Supreme Court has ruled in favor of parties against state governments, any attempt by the federal government to wrest control without the benefit of a constitutional amendment, may be challenged by the individual parties themselves, making it less likely that such a remedy is possible.

Regulating the Presidential nominating process through the federal government is a complicated issue. There are many competing interests, legal challenges, and attitudes that pose stiff barriers to such a solution. Further, there are questions if such a solution would actually fix the problem or just make it more complicated, discouraging candidates or constituents from participating. Despite the challenges, I feel that examining possible solutions is the best way to come up with a process that is fairer to more people.

Coming up next time, I’ll go through my new and improved solution for the nominating process. Many of the questions that I have discussed in this post will remain, however, I feel that solutions should be presented despite potential challenges.

Thanks for reading!

Ed Note: Special thanks to Steve Mulroy for providing insight into the constitutional issues. I hope I represented your analysis correctly.

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