States’ Rights, Party Autonomy and the Nomination Process

There’s been an interesting indirect debate the last few days, with Super Tuesday providing the context, of the perennial topic of improving the presidential nominating process–or leaving it alone.

At Slate, the estimable election law expert Richard Hason has argued that Congress should intervene to require states to hold primaries rather than caucuses to select national convention delegates. While they are at it, he suggests, they should impose some sort of rational schedule on the process, since the parties seem to be incapable of any effective action in this respect.

These suggestions were not welcomed by my friend the political scientist Jonathan Bernstein, who wrote a column at TNR more or less defending the status quo, partly out of respect for the parties, and partly out of respect for the states.

Readers familar with Jonathan’s views (as articulated most often at his excellent Plain Blog About Politics) know he’s a big fan of the self-regulation of political parties. He often responds to various criticisms of caucuses and primaries by arguing that the presidential nomination process is a much more elaborate process in which rank-and-file voters are a small, and not necessarily decisive, part. This is a strongly held point of view among political scientists these days, I might add, partly due to the influence of the 2008 study, The Party Decides, which stressed the role of elites and activists in pre-conditioning the nomination before voters weigh in.

Aside from his support for party self-regulation, Jonathan also worries that Congress, if invited to get involved in the nomination process, will, well, screw it up: “[R]egardless of what ideas neutral observers can draw up to ensure fairness, Congress is likely to reinforce its own biases when it gets involved.”

I’m neither an election law expert nor a political scientist, but I tend to lean towards Bernstein’s point-of-view on caucuses-versus-primaries and toward’s Hasen’s on the need for an intervention to rationalize the nomination system. It’s sometimes forgotten that there is a considerable range in the rules under which these contests are held. Some caucuses are sufficiently well-supported and organized and offer sufficient encouragement for participation that they are difficult to distinguish from primaries. It’s like the often-artificial distinction between “open” and “closed” primaries or caucuses: in states with extremely liberal party registration rules (or no party registration at all), you can call these events “closed” if you want, but actually anyone can participate. A flat “primaries yes, caucuses no” rule misses a lot of that, and since money is one of the main reason states prefer party-supported caucuses to taxpayers-supported primaries, banning caucuses could just lead to very poorly operated primaries.

But I simply don’t share Jonathan’s reverence for party or state autonomy in supervising the entire process. Yes, he and other political scientists are correct in saying a lot more goes into choosing nominees than the wishes of the rank-and-file. But that’s not necessarily a good thing. You certainly can’t ban the “invisible primary.” But a system in which a handful of states holding low-turnout events exert an enormously disproportionate influence, naturally leads to the spectacle of candidates spending months many months currying the favor of interest and activist groups who happen to be powerful in early states. Change the calendar and you change the “invisible primary” as well.

Does that limit “party autonomy?” Yeah, but so what? Americans have given the two major parties more than sufficient time to create a more rational process with a tighter time-frame and fairer participation in the actual work of choosing a nomnee. They’ve largely failed, despite commission after commission. The reason is simple: the existing early states (and those who wish to join them in the media spotlight), backed by candidate and candidate allies who fear them, and who have a greater stake in the rules than other states, simply have too much power to thwart change. As we’ve seen in both 2008 and 2012, in fact, even serious efforts to impose sanctions on rule-breakers haven’t succeeded. It’s time to cut the Gordian knot, or at least have a real national debate on the system that doesn’t depend on the good will of individual state parties operating through candidate-influenced national party committees.

As for the idea that Congress has no business getting involved in these “state matters,” I’d be very happy if the federal government got generally a lot more involved in election administration. Anybody paying attention has known at least since 2000 about the fundamental rotteness of state (and in many places, local) control of election administration, and the drive for a restricted franchise currently underway in many states is only making it a lot more apparent. It’s hard to imagine Congress–under the kind of judicial scrutiny that national laws facilitate–doing a lot worse.

Any way you slice it, though, it’s good to talk about these issues instead of pretending our current system came down from Mount Sinai on stone tablets. As currently constituted, the nomination system is mainly a boon to those political consultants who know how–or pretend to know how–to navigate it, not to mention the Super-PAC donors we are now apparently encouraging to pay for the whole show.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.