The Green Papers Commentary
 

Regarding a proposed National Primary Constitutional Amendment
Saturday, January 17, 2004

by Richard E. Berg-Andersson
TheGreenPapers.com Staff

I don't know if it's simply because more people have been thinking about this because we have now (finally!) embarked on the 2004 pre-Convention Primary/Caucus "season" (the District of Columbia has already held a non-binding Advisory Primary on the Democrats' side and the Iowa first-tier Caucuses are coming up in a few days as I type this), but I have- over the last several days to few weeks- been receiving quite a number of e-mails asking about the prospects for someday having Congress authorize a National Primary, either to actually nominate candidates for President (and, in some cases, Vice-President) or, at the very least, to choose delegates to the National Conventions of at least the two Major Parties (if not also Third Parties) on the same day throughout the country. I have responded to all these e-mails in the same way, by referring the interested party to my comments on just such a National Primary in a response to two 'vox Populi's nearly two months ago (for those of you who might actually be interested in these comments, please see the pages at the URLs http://www.thegreenpapers.com/Vox/?20031121-0 and http://www.thegreenpapers.com/Vox/?20031128-0). In both these responses of mine, I opined that Congress cannot simply pass a statute authorizing a National Primary (assuming that there would even be majority sentiment within either house of Congress to do so), that a Constitutional Amendment would be necessary- as Congress currently has no power under the Constitution as currently written and construed- to at all regulate the process of nominating candidates for President and Vice-President.

A few of those who had originally queried me in relation to this issue have now written me back asking me to now suggest exactly what a proposed Amendment on this subject might actually have to entail. Rather than answer each e-mail individually, I have decided to put on the proverbial "table"- by way of this piece- my version of just such an Amendment. But first a few notes- by way of disclaimer- before I present the text of my proposal:

1. I am not an attorney, have never been a paralegal, nor have I ever worked as a legislative staffer. Thus, I would have to assume that my legislation-drafting skills (as in "none"!) would tend to leave much to be desired. I have freely borrowed what might be described as "boilerplate" constitutional/legal verbiage from other sections of the Federal Constitution which, in my humblest of opinions, allow my Amendment to say what I mean it to say and intend it to do. However, I could very well be wrong! Therefore, I have also provided a clause-by-clause commentary on what I was thinking as regards the purpose of each clause or section of my Amendment after I have presented the entire text of said Amendment: I invite anyone- legal and/or political professional or no- who wishes to comment ("Yea" or "Nay") upon the concept of a National Primary of some sort to replace the current system of presidential nomination (week-by-week/State-by-State Primaries/Caucuses through which delegates to National Nominating Conventions are allocated/chosen) to critique that which I have come up with here.

2. I am also not naive. My amendment (or some variant thereof) will never be adopted by 2/3 vote of each house of Congress or, if so adopted, never thereafter ratified by 3/4 of the States- for the same reasons I have already explained in my responses to those two 'vox Populi' I cited above. As I've already said to both Mr. Wetmore and Mr. Schiff, "Ain't happenin' "!!! The fact of my having put this Amendment of mine "out there" does not mean I have suddenly gone and lost my head in thinking something like this could actually be implemented.

With that, herewith my own proposed Constitutional Amendment allowing for a congressionally-mandated/regulated National Primary, followed by a clause-by-clause explanation. To quote Peter Schickele, the musical genius behind the seeming lack thereof re: P.D.Q. Bach:

"You asked for it... now you're going to get it!" [;-)]

First off, the complete text of the Amendment as a whole:

AMENDMENT __

Section 1. The Congress shall have power to regulate the times and manner of the formal nominating, by the several political parties, of candidates for President and Vice-President who will appear on the ballot in relation to the appointment of Electors for President and Vice-President by the several States and the District constituting the seat of Government of the United States. Provided that, should a National Convention consisting of delegates and alternates to said Convention from the several States or any equivalent jurisdiction not a State, such as a Territory or Commonwealth in free association with the United States, be the body authorized by any legislation adopted by Congress under this Section through which any political party thereafter might formally nominate candidates for President and Vice-President, the procedures and practices under which such delegates and alternates are to be chosen shall be conducted only under such regulations as might be determined by the central committee or equivalent body administering the national organization of the given political party as are not inconsistent with the laws of a given State, or equivalent jurisdiction not a State, in which said delegates and alternates are to be chosen.

Section 2. Until such time as Congress may choose to first exercise the power granted it under Section 1 of this Article, the procedures and practices through which any political party formally nominates its candidates for President and Vice-President shall be those authorized by the central committee or equivalent body administering the national organization of the given political party as are not repugnant to this Constitution nor to the laws of the United States made in pursuance thereof, nor inconsistent with the laws of a given State, or equivalent jurisdiction not a State, in relation to which such procedures and practices might thereafter be exercised.

Section 3. This Article shall not be so construed as to deny or disparage, or in any way impair, the ability of any person eligible for the office of President, or Vice-President, of the United States under this Constitution to be a candidate for either office as an Independent apart from any political party organization so long as such Independent candidacy is not inconsistent with the laws of a given State or the District constituting the seat of Government of the United States in which such Independent candidate seeks to appear on the ballot.

Section 4. Any exercise of the power and authority granted under this Article shall not be applicable to any procedures and practices relating to the nominating of candidates for President and Vice-President for a given quadrennial election of a President and Vice-President of the United States until the Election of Members of both Houses of Congress in a calendar year in which a President and Vice-President is not to be regularly elected which shall next follow the calendar year in which this Article of Amendment shall have been ratified by the necessary three-fourths of the several States shall have intervened.

Section 5. The Congress shall have power to enforce this Article by appropriate legislation.

Now for the clause-by-clause explanation of the above:

Section 1, clause 1: The Congress shall have power to regulate the times and manner of the formal nominating, by the several political parties, of candidates for President and Vice-President who will appear on the ballot in relation to the appointment of Electors for President and Vice-President by the several States and the District constituting the seat of Government of the United States.

The intention of this clause is to give Congress full, plenary power to pass Federal laws in relation to when and how candidates for President and Vice-President are to be nominated by political parties (it is no more than the exact same power that a State legislature currenty has over nominations for State and local office). Under this clause, Congress could- for example- decide to authorize, by statute, a National Nominating Primary, to be held on the same day throughout the United States, one which would actually nominate candidates for President; at the same time, Congress could simply decide that the National Conventions formally nominating a Party's candidates for President and Vice-President (as is current practice) should be retained and simply direct, again by statute, that the delegates and alternates to these National Conventions be chosen on the same day throughout the United States; or Congress could simply decide to essentially codify, by statute, the current system of nominating candidates for the Nation's two Highest Offices. Any and all of these options would fulfill the exercise, by Congress, of its power under this clause.

Note that this clause does not at all mandate just how Congress should exercise this power. I would presume that, were this Amendment actually a part of the Constitution, there would thereafter be full debate in each House of Congress as to just what the best method of nominating candidates for the Nation's two Highest Offices might, in fact, be; in addition, if a method of presidential nomination adopted by Congress should prove, over time, to be most unsatisfactory, it could then be more easily changed simply by further congressional action. Further, recognizing that the United States of America is a Federal system in which the States share sovereignty with the Federal Government, I would only grant Congress the power to regulate "times" and "manner" (but not the "places") involved in any nominating process as, presumably, the States would retain the power to determine, for instance, the locations and operation of polling places in relation to any such National Primary.

Section 1, clause 2: Provided that, should a National Convention consisting of delegates and alternates to said Convention from the several States or any equivalent jurisdiction not a State, such as a Territory or Commonwealth in free association with the United States, be the body authorized by any legislation adopted by Congress under this Section through which any political party thereafter might formally nominate candidates for President and Vice-President, the procedures and practices under which such delegates and alternates are to be chosen shall be conducted only under such regulations as might be determined by the central committee or equivalent body administering the national organization of the given political party as are not inconsistent with the laws of a given State, or equivalent jurisdiction not a State, in which said delegates and alternates are to be chosen.

Basically, this clause makes sure that- should Congress, exercising its power in the first clause, pass a statute that, say, mandates that delegates and alternates to a Party's National Convention be chosen and/or allocated on the same day throughout the United States, the actual number of delegates at a Party's Convention, how those delegates are to be distributed among the States and (should the Party so desire) Territories, along with what methods might be used to choose and/or allocate delegates, remain in the hands of the political Party itself. If, as is currently the case with the two Major Parties, a delegate allocation formula is set up by the national Party itself, that would still be acceptable under this clause; if a national Party wishes to more or less micro-manage how the delegates are allocated/chosen on the State or equivalent level (as is the current case with the Democrats), that would be permitted; if a national Party desires to be more "hands-off" in relation to its State and local affiliates (which is the current case with the Republicans), that would be OK, too. This clause makes sure that- unless Congress scraps the National Conventions altogether in relation to a statute mandating a National Nominating Primary- such issues are not at all to be within the province of the power granted to Congress in the first clause but, rather, remain with the political Parties themselves, the only caveat being that any such Party-determined processes not be violative of the election laws of a State the Party of which is sending delegates to that Party's National Convention.

Section 2: Until such time as Congress may choose to first exercise the power granted it under Section 1 of this Article, the procedures and practices through which any political party formally nominates its candidates for President and Vice-President shall be those authorized by the central committee or equivalent body administering the national organization of the given political party as are not repugnant to this Constitution nor to the laws of the United States made in pursuance thereof, nor inconsistent with the laws of a given State, or equivalent jurisdiction not a State, in relation to which such procedures and practices might thereafter be exercised.

This section is simply just so much "legalese" that makes it clear that, should Congress fail to pass any statutes regulating the nominations of candidates for President and Vice-President under the power granted it in Section 1 of this Amendment, the presidential nominating system pretty much remains "as is" until Congress should, indeed, adopt such statutes. In effect, this section merely "constitutionalizes" (without at all "sweating the details") the pre-existing presidential nominating process.

Section 3: This Article shall not be so construed as to deny or disparage, or in any way impair, the ability of any person eligible for the office of President, or Vice-President, of the United States under this Constitution to be a candidate for either office as an Independent apart from any political party organization so long as such Independent candidacy is not inconsistent with the laws of a given State or the District constituting the seat of Government of the United States in which such Independent candidate seeks to appear on the ballot.

This section is intended to make sure that neither the power of Congress granted in Section 1, clause 1, nor the authority of national political Parties formally recognized in Section 1, clause 2 and/or Section 2 is, subsequent to ratification of this Amendment, then used in an attempt to quash Independent/non-Party candidates for the Presidency (or, for that matter, the Vice-Presidency). The laws of each State and D.C. under which such Independent candidacies might appear on the ballot would, under this section, not be at all adversely affected by any regulations which might be adopted by Congress under this Amendment or a political Party's procedures and practices formally recognized by this Amendment.

Section 4: Any exercise of the power and authority granted under this Article shall not be applicable to any procedures and practices relating to the nominating of candidates for President and Vice-President for a given quadrennial election of a President and Vice-President of the United States until the Election of Members of both Houses of Congress in a calendar year in which a President and Vice-President is not to be regularly elected which shall next follow the calendar year in which this Article of Amendment shall have been ratified by the necessary three-fourths of the several States shall have intervened.

This section is intended to provide for a reasonable time frame during which everyone could then adjust to the new political reality this Amendment would be creating, should it ever be adopted.

Let's say, for sake of argument, that- somehow (through what surely would have to be a rather bizarre set of circumstances!)- my Amendment, as herein written, is passed by the necessary 2/3 of each House of Congress and thereafter ratified by at least 38 of the 50 States of this Union, with the 38th State so ratifying in January 2011: the earliest Presidential Election (and the nominating of candidates for President and Vice-President therefor) to which any laws adopted by Congress under Section 1, clause 1 could apply would be that of 2016; such laws- even if they were to be passed by Congress and signed by the President in the Summer of 2011- would not apply at all to the nominations for the Presidential Election of 2012 (why?-- because the Election of Members of both Houses of Congress in a calendar year in which a President and Vice-President is not to be regularly elected which shall next follow the calendar year in which this Amendment has been ratified by the necessary three-fourths of the States would be the Midterm Congressional Elections of 2014 [the Midterm Elections next following the calendar in which the Amendment will have been ratified in this hypothetical, 2011]; only once the Midterm Elections of 2014, in this hypothetical, shall have intervened can any laws passed by Congress per this Amendment apply, thus the Presidential Election of 2016 would be the earliest possible Election affected by the provisions of this Amendment were this Amendment to be declared part of this Constitution by early 2011). The same thing would be true if this Amendment were to be ratified by the 38th State in January 2012, January 2013 or- for that matter- any time between January 2010 (in WHICH case, the Midterm Election of 2010 is not in the year "next follow"ing the calendar year in which this Amemdment would have been ratified: rather, these elections would be in the same calendar year!) and December 2013... it seems to me that no less than around 2 1/2 years or so and no more than around 6 years or so is a long enough time for any regulations debated and adopted by Congress immediately after the Amendment is ratified to then be implemented re: the nominations for a particular Presidential Election.

Note that, in our hypothetical in which this Amendment is ratified in 2011, once we pass the Midterm Election of 2014 without Congress having exercised its power under Section 1, there would thereafter no longer be any Section 4-based time restriction on Congress so acting. That is, from the date of the Midterm Election of 2014 (in my original hypothetical) on, Congress could apply any laws it might pass under Section 1 to any Presidential Election from 2016 on. My assumption here is that Congress would not ever adopt any legislation regulating the nominating of candidates for President and Vice-President that would put too much of a time-burden on either the States (and Territories) and/or the political Parties (in other words, any such legislation as Congress might adopt under this Amendment would itself contain a time-delay before actually becoming effective).

Section 5. The Congress shall have power to enforce this Article by appropriate legislation.

This is simply what has become the usual end-of-Amendment "boilerplate" that gives Congress the ability to pass any necessary and proper legislation in order to most effectively bring all the terms of this Amendment into their fullest possible operation.

 


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