Frontloading Under Fire, Part II

And here you thought, presidential primary (and caucus) frontloading was off the agenda until, say, 2011. No, as I mentioned in the initial installment of the "Frontloading Under Fire" series [Yeah, I didn't know there would be other ones either. But I opted to rehash the title instead of coming up with something snappy or forcing something boring.], frontloading in 2012 is very much on the agenda these days. The GOP are forced to confront the issue now -- as in, at their convention -- because they can only debate and make such rule-changing decisions from within the confines of the convention. The Ohio Plan (see a discussion of it and other reform plans in the right hand sidebar)that the Republicans are forwarding would grant Iowa and New Hampshire their customary positions at the front of the line with a series of small state contests to follow. The remaining, bigger states would be split into three groups with each group holding contests a few weeks apart (after the small states). We are just a few weeks off from the GOP convention, so one piece of the 2012 puzzle will be in place then.

Another piece of that puzzle is the potential for a regional primary system. The one proposed by the National Association of Secretaries of State received some attention this past weekend as the group met in Grand Rapids, MI for its annual summer meeting. Given what transpired in Michigan during primary season, Grand Rapids was an interesting location for the meeting. Really, all that came out of the meeting in regard to the primary system was that NASS was still in favor of the rotating regional primary. But hey, it was in the news (...buried under all that McCain and Obama talk and perhaps some other stories as well.).

I bring the Ohio Plan and the regional primary plan up together because I only really take the former seriously. Why? Well, the national parties are more likely to have some say in the issue than even this bipartisan collection of secretaries of state. The ball has always been in the parties' court on this issue. The decision is made based on the interaction between state parties/legislatures and the national parties. The national parties set the rules and the state-level actors operate under them. Secretaries of state work independent of that relationship unless, of course, you are talking about New Hampshire, where it is the secretary of state and not the state parties/legislatures making the decision.

Unless the regional primary system is being pushed by the parties, it is likely going nowhere, and it will continue to go nowhere until Congress intervenes. And that won't happen, will it? Sen. Nelson (FL-D) has brought something similar to the NASS plan in the Senate, but talk of his electoral reforms (the bill includes electoral college reform as well) has been pushed to the side since the Democratic nomination race was decided. But does Congress even have the right to make a decision on this matter? That was the topic of a recent posting by Dan Tokaji on the Election Law Blog. A forthcoming book chapter from Brookings by Dan Lowenstein tackles the issue:

The drawn-out contest for the Democratic presidential nomination in 2008 may temporarily mitigate but is not likely permanently to end pressure to halt or reverse the front-loading of presidential primaries and caucuses, including pressure for action by Congress. In this essay, written for publication in a forthcoming Brookings volume, REFORMING THE NOMINATION PROCESS edited by Steven S. Smith and Melanie J. Springer, I take no position on the desirability of reform, other than to support a ban on nominating events prior to a specified date in February or early March. Rather, the essay concentrates on congressional power to regulate the timing of nominating events.

I argue that some commentators have underestimated the structural arguments against any implied power by Congress to regulate presidential nominations. However, relying on the 12th Amendment, I come to the same conclusion as most commentators, that Congress does have the implied power. With respect to possible limitations on Congress' power deriving from the parties' associational rights, it is necessary to consider who the likely complainants will be. The most likely entities to object to congressional regulation are state governments and state parties. But the former have no first amendment rights against congressional action and the latter's claims would be quite weak. National parties could have stronger constitutional grounds for objecting to congressional regulation, though it is far from clear that they would prevail. More importantly, the prospects for congressional action are not particularly great in any event and the chances that Congress would act over the strenuous objection of one or both major parties are remote. Regulation is not unconstitutional on associational grounds unless the affected association objects. Therefore, whatever the national parties' theoretical associational rights may be, there is little likelihood Congress will regulate in an unconstitutional manner.

In a brief final section, I suggest that despite the probable constitutionality of congressional regulation, substantive regulation is undesirable, with the possible exception of setting a starting date. If Congress feels under political pressure to do something more, it would be better advised to facilitate joint deliberation and negotiation by the two major parties and to assist them in enforcing their own rules against the state than to impose a mandatory system on the parties and states.

Needless to say, I'll be lined up outside the bookstore for that one when the time comes for its release. More to the point, though, that adds some insight to the reform discussion we've been having here. Congress does have the ability (and likely the upper hand in court) should it decide to wade into the issue of scheduling presidential nominating events. However, normatively (at least in Lowenstein's eyes) that may not be the preferred route to reform.

...unless it includes his earlier capping of when states can actually hold their contests.


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An Update on the Rasmussen "Leaners" and a Look at How They Affect the Electoral College