by Stan Cutler
A year and a half before the 2016 general election, the Iowa caucuses and the New Hampshire primary are having an absurd effect on our democratic processes. Recent visitors to those states include Hillary Clinton, Jeb Bush, Chris Christie, Lindsay Graham and Marco Rubio.
And you have to hand it to Donald Trump, who went to New Hampshire just last week to inform a waiting nation that he is seriously considering a run for the Presidency. “The Donald” exemplifies the elections business, and how lucrative a business it must be. Why else would such an outrageously unqualified man be interested?
These “early events” are marketing tests, samplings, of voter preferences in two states. Because they are the first of a series of such samplings, culminating on the day of the next general election, they have an absurd influence on the next ten and a half months. Yes, we will endure almost eleven months of campaigning between the Iowa caucuses in January and the election that matters on Nov. 8.
I suggest that Congress enact legislation to limit the duration of the election cycles. It is within its power to require that all primary elections occur either simultaneously or during a very limited span of time, perhaps a single week during a quadrennial election year.
This not the same as regulating free speech. The First Amendment rights of candidates and the parties would not be in any way regulated. They’d be free to buy as much advertising as they choose. But it’s unlikely that they would spend nearly as much as they do under the current system, as voters tend to forget campaign messages fairly quickly. Campaigns would be wasting their money investing in advertising too soon before the actual voting.
Under a simultaneous primary system, it is far more likely that the final selection of presidential nominees would take place at the quadrennial conventions. But the conventions would be more democratic than they used to be, so long as each state’s and party’s rules pledge delegate votes to the winners of the state primaries, thus ensuring that the popular choices would significantly affect the convention outcomes.
Yes, there would likely be a considerable amount of deal-making and trading at the conventions. Yes, there would be debates, compromises and pragmatic decisions. That’s called democracy.
By abbreviating the primary cycle, there would be other significant benefits. The “early” primaries would have diminished influence on the other states, and the later primaries would be far more consequential. As it now stands, after a month or two of the first several primary elections, there are only a few front runners left in the race.
We need to reform the system that has changed our politics from a democracy into something that smells like oligarchy, but there are a host of reasons to think that a constitutional amendment is a dubious prospect, fraught with political and legal obstacles that are likely to be insurmountable. And exactly what this amendment would say is problematic. If it attempts to limit campaign financing, it is likely to be overturned by the Supreme Court.
Campaign finance reform efforts have foundered on the First Amendment. The Supreme Court has ruled that Congress does not have the power to limit campaign funding on the grounds that contributors are exercising their rights to free political speech, manifested as money spent on advertising.
But, under a simultaneous primary system, the influence of rich donors would be minimized as a result of the lower cost, not as a result of efforts to limit their contributions. There would be no First Amendment grounds for a challenge. There is, however, a 10th Amendment states-rights’ argument that could be mounted against federal legislation to constrain the primary election cycle. The 10th Amendment declares that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The notion of adding a 28th amendment to the Constitution, as Mrs. Clinton and others have called for, would specifically give Congress the right to regulate state elections, such as the primaries, in which candidates for federal office are selected. But a 28th Amendment would only be necessary if more straightforward legislative approaches, such as a law to limit the primary season, were overturned by the Supreme Court. I’m simply suggesting that Congress take the easier route of passing a law before attempting the more challenging path of Constitutional Amendment.
A law, not an amendment, that abbreviates the primary system, would be defended on the grounds that the federal government has a compelling interest in the process used to select federal office holders. Also, a 10th Amendment challenge is defensible on the grounds that the federal government has an obligation to restore the system to a form in keeping with the principles of democratic governance written into the Declaration of Independence and the Constitution.
The Court would have to decide whether the rights of media companies to make money supersedes the rights of all Americans to participate in fair elections. One would hope that even a partisan Supreme Court would have no choice but to rule in favor of the people. If it doesn’t, then a 28th Amendment would become necessary.
If we could put campaign cost reforms in place with legislation, I’m certain we’d soon see a dramatic improvement in the quality of government. Incidentally, our collective quality of life would be enhanced by reducing the amount of commercialized political news and advertising we now have to endure.