The Green Papers Commentary
 

SEARCHING, BUT IN VAIN
for a better way of nominating
candidates for the American Presidency

Saturday, August 6, 2016

by RICHARD E. BERG-ANDERSSON
TheGreenPapers.com Staff

At times it seems rather hard to believe, as I now type these words, that- exactly one year before the very day this piece is posted to this website (that is: back on Thursday 6 August 2015)- the first nationally televised debates (involving the major announced Republican presidential contenders- 17 all told [10 of these, those leading in the national polls at the time, taking part in a "main event" debate amongst themselves scheduled for Prime Time in the eastern half of the country; the remaining 7 relegated to an "undercard" debate televised a few hours earlier]) took place in the same arena in Cleveland, Ohio in which- but a bit short of a year later- one of the 'top 10' in the "main event" debate that evening, Donald Trump, would accept the Grand Old Party's nomination for President of the United States.

With those first debates of the 2016 Presidential Election cycle, the "winnowing in" [a tip of the cap here to former Oklahoma Senator Fred R. Harris] process re: the presidential nomination on the Republican side was itself then underway (the Democrats, on the other hand, would not begin their own so "winnowing in" until over two months later, with a nationally televised debate amongst that Party's then-5 major presidential contenders held in Las Vegas): those debates in Cleveland a year ago now would, thereby, launch the long presidential nomination process consisting of nearly six months of such nationally televised debates before even the first Caucuses in Iowa, followed a little over a week later with the first Presidential Primaries in New Hampshire- a process that would culminate in the two Major Party National Conventions held during the latter half of the previous month.

Now that each Major Party has so nominated its presidential (and vice-presidential) candidates, it is time (as it seems to be every four years immediately following the Major Party National Conventions) to ask the obvious question: is it at least possible (if not, in truth, all that probable) to find a better way to nominate candidates to run in the ensuing November General Election for the Nation's Highest Office? It is, indeed, now the time to ask- and, of course, at least try to answer- that very question because, to be most honest here, within no more than half an hour of your first being able to read these very words, rather few people are even going to care about either the question or its possible answers because attention has, instead, already begun to turn to the General Election this coming November itself and, therefore, it won't be until roughly three years from now- when at least one of the two Major Parties will be about to hold its own first nationally televised debates involving its presidential contenders for the 2020 Presidential Election that it will suddenly dawn on most people 'Oh, wait-- wow-- we're about to go through much the same thing we went through last time!' but it will, of course, by then be too late to change things as regards the presidential nominating process for the next Presidential Election cycle.

Nevertheless, I will herein do my utmost to try and address at least the principal issues surrounding the above-asked question anyway.


It was a most historic event...

shortly after 1 o'clock in the afternoon of Tuesday 2 December 1913, President Woodrow Wilson strode into the chamber of the United States House of Representatives tucked inside the Capitol in Washington, D.C. in order to deliver his Administration's First Annual Message before a Joint Session of the 63rd Congress of the United States (this being back in the days before the adoption of the 20th Amendment to the U.S. Constitution, when "regular" sessions of Congress still ordinarily convened at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law appoint a different Day [per the Constitution's Article I, Section 4, clause 2], Congress had convened its so-called 'long' session only the previous day).

It was historic principally because it would mark the first time a President of the United States delivered what had already, by that time, come to be called his 'State of the Union' Message (a sobriquet based on the constitutional requirement that the President shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient [the first portion of Article II, Section 3 of the Federal Constitution]) in person since the era of Presidents George Washington and John Adams (Thomas Jefferson, the Nation's third President, had deemed delivering Messages to Congress in person as smacking much too much of Monarchy and all of Jefferson's successors- up until Woodrow Wilson, that is- simply followed suit [thus, for example, Abraham Lincoln's noble words- from his Second Annual Message to Congress in early December 1862- about how [w]e shall nobly save or meanly lose the last best hope of earth... The way is plain, peaceful, generous, just- a way which, if followed, the world will forever applaud and God must forever bless never ever actually fell from the lips of the Great Emancipator himself but, rather, were merely read into the record of Congress by, separately, a House clerk and Senate secretary ensconced within their own respective chambers inside the Capitol]).

Wilson himself had already broken such a longstanding precedent through his having delivered a Special Message to a Joint Session of that same Congress in person back on Tuesday 8 April 1913 (Wilson had called Congress into 'Extra' Session [the proper term, by the way: Wilson's first ever Message before the 63rd Congress might well have been Special, but the session itself was not ('Special' Sessions are only those involving one of the two houses of Congress)] the day before, itself a little over a month after his own Inauguration the previous 4 March so that it could consider a tariff): this breaking of precedent itself was not well received by his own Party (particularly in the Senate: Senator John Sharp Williams [D-Mississippi], for one, called it "a speech from the throne... a cheap and tawdry imitation of the pomposities and cavalcading of monarchical countries"); Vice-President Thomas Marshall, exercising his own prerogatives as constitutional presiding officer of the Senate, only managed to get the Joint Resolution [already adopted by the House] authorizing the necessary Joint Session back in April via a parliamentary maneuver declaring it a "question of high privilege" which need not be submitted to the Senate as a whole [since no Senator thereafter bothered moving to appeal to that same 'Senate as a whole', the Joint Resolution thereby was considered as having been adopted (and "without objection, so ordered") by the Senate automatically]...

but Wilson's also delivering the first of what would be his "normal" 'State of the Union' Messages before Congress itself during the following December meant that this, in and of itself, was to be a new precedent in place of an older one (and, in fact, no President of the United States since has failed to deliver what is now generally known as the annual State of the Union "Address" in person: one important change of significance having been the eventual moving of this speech from early afternoon to evening Prime Time in order to much better accommodate a nationwide radio- and, later, television- audience [another important change: nowadays having not only the Cabinet, but even the Supreme Court, in attendance; President Wilson, attempting to at least somewhat deflect the criticism that had accompanied his April appearance before Congress (as already noted above), came into the House chamber that December day accompanied only by his personal secretary and a sole Secret Service agent!]).

However, what concerns us herein, dear reader, is but a mere paragraph of Wilson's 2 December 1913 'State of the Union', one read aloud by him a little more than halfway through it:

I turn to a subject which I hope can be handled promptly and without serious controversy of any kind, the Nation's 28th President intoned. I mean the method of selecting nominees for the Presidency of the United States. I feel confident that I do not misinterpret the wishes or the expectations of the country, Wilson went on, when I urge the prompt enactment of legislation which will provide for primary elections throughout the country at which the voters of the several parties may choose their nominees for the Presidency without the intervention of nominating conventions. I venture the suggestion that this legislation should provide for the retention of party conventions, but only for the purpose of declaring and accepting the verdict of the primaries and formulating the platforms of the parties; and I suggest that these conventions should consist not of delegates chosen for this single purpose, but of the nominees for Congress, the nominees for vacant seats in the Senate of the United States, the Senators whose terms have not yet closed, the national committees, and the candidates for the Presidency themselves, in order that platforms may be framed by those responsible to the people for carrying them into effect.

Seen through the mists of now more than a century of intervening American History, President Wilson's proposal herein seems rather extraordinary-- where not also altogether astounding (especially as regards his call for the possible reconstitution of the very membership within quadrennial National Party Conventions)!

In truth, however, Wilson was speaking in the aftermath of (and not all that long after) the extraordinary political events leading up to the 1912 Presidential Election in which he himself had been elected- events that not only included a professorial (literally!) Governor of New Jersey besting the incumbent Speaker of the U.S. House in the contest for their own Democratic Party's presidential nomination but also included an insurgent former President, Teddy Roosevelt, using the rather new device of Presidential Primaries to challenge the incumbent in the White House, William Howard Taft, for the Republican presidential nomination (T R, of course, failed in his challenge come the GOP Convention itself and, as a result, ended up forming his own Progressive 'Bull Moose' Party in order to thereafter run a Third Party campaign for the Presidency in the ensuing General Election: the resultant split within the Grand Old Party largely contributed to the professor being elected to the White House).

The Party Platforms of both T R's Progressives and Wilson's Democrats in 1912 had included calls for increased Presidential Primaries in future (however, the Republicans proper- in part because of the Grand Old Party's 'culture' [which tended to be less taken with relatively unfettered democracy: not so much anti-democratic as the more favoring balancing the voters' will with representative institutions], but also in part because, frankly, outgoing President Taft had been "burned" by those new-fangled Presidential Primaries [even though only about 1/3 of the States of the American Union had actually utilized them in 1912]- did not at all include any reference to Presidential Primaries in their 1912 Party Platform) and the new President was, obviously, including in his first State of the Union Message what his own Party had itself proposed while, at the same time, waxing rather professorially upon it.

President Wilson's own proposal in this regard seemingly engendered the quite a number of legislative proposals put before the ensuing 'long' session of that same 63rd Congress (most notably, H.R. 1687: the 'Ferris National Primary Bill' [which, despite its name, did not actually propose a one day-only Presidential Preference Primary but, instead, would have mandated- among many other things- that all delegates to any Party's National Convention be chosen in, as well as instructed by the voters through, Presidential Preference Primaries in each State]).

Other bills on the same subject introduced in that same congressional session included the Hinebaugh Primary Bill (H.R. 6059) and the Sherman Primary Bill (S.2309)- each of which would have retained the National Party Conventions as the actual presidential nominating entity but, nonetheless, would have also mandated that the delegates be specifically instructed (by the voters in a Presidential Preference Primary in each State) as to whom the State's delegation should support at the Convention and that the delegation, by (Federal) law, then carry out such instructions on the Convention floor itself (at least for a certain number of Roll Call ballots)- and the Cummins Primary Bill (S. 773) and Lafferty Primary Bill (H.R. 2908)- each of which would have taken each Party's presidential nomination out of the hands of the respective National Party Conventions altogether and, instead, directly placed it in the hands of the voters in each Party (through a series of Presidential Primaries throughout the country, if not even a single day National Presidential Nominating Primary).

The aforementioned Ferris National Primary Bill was certainly the most comprehensive as regards its regulation of the American presidential nominating process, but none of the various and sundry Primary Bills introduced in the 63rd Congress ended up getting anywhere by the time that Congress adjourned sine die come 3 March 1915. In any event, any and all such proposals were- at least for a time- quite effectively mooted by an opinion rendered in a Committee of the United States Senate (one considering a later version of the Sherman Primary Bill [S. 3922 in this case] in 1915) that a Constitutional Amendment would be necessary in order for Congress to even have the very power to entertain just such legislative proposals attempting to regulate the presidential nominating process by Federal Law.


Why so? Well, to here reiterate that which I myself had already addressed on this website more than a dozen years ago now (and I, therefore, hereby quote from my own words from back then):

[W]hile Congress is given ultimate plenary power- should it wish to exercise same- over the conduct of elections to both houses of Congress, it can only determine the date on which the Presidential Electors must be "appointed" (in modern practice, allocated according to the results of the voting for President/Vice-President in each State and the District of Columbia) and the date these Electors subsequently meet in separate "Electoral Colleges" in each of the 50 States and D.C., after which its sole role in relation to a given Presidential Election is to merely count and tabulate the Electoral Vote once cast... But please note that Congress has no power over the "Times, Places and Manner of holding" Presidential elections and certainly has no say whatsoever in the process of nominating the Presidential (and Vice-Presidential) candidates who will square off in said contest for the votes of Presidential Electors!

Now, this might very well be something of a glaring oversight- where not also a significant weakness- within the framework of the United States Constitution as it currently stands but the historical reason for this is rather simple: the Framers honestly believed that the Presidential Electors, despite their name, would only end up nominating Presidential candidates to be considered by the House of Representatives (at least once the then-national consensus choice for President, George Washington, either finally retired or passed on); they truly felt that no one after Washington was likely to command the allegiance of the then-three Sections of the new "more perfect Union" they were crafting (New England, Mid-Atlantic and the South) and they clearly feared what might happen if a regional candidate from a section obnoxious to the States of another section came to be elected President of the United States (given the Southern reaction to the election of Abraham Lincoln in 1860- one which fomented open civil war- this fear seems, by the lessons of American History, entirely justified in retrospect).

Thus, in the original scheme as laid out in Article II, Section 1, clause 3 of their document, did the Framers set up a device by which (or so they apparently- and, in the end, so vainly- hoped) a President (and Vice-President) would be chosen rather mechanically (as befitted men who were very much products of the so-called "Age of Reason"):

first, each Elector would vote for two men (and, of course, back in that day, it was always to be men voting for other men) for President, only one of whom could be from the same State as a given Elector. Since the Electors were all required to meet on the same day, and in an era of such limited communications and transportation technology, there would be no way for an Elector to know how those in any of the other States might, on that same day, be voting- thus, there was absolutely no way for an Elector to know how his second vote (assuming his first vote were for someone from his home State) might eventually come to affect the ultimate outcome of the presidential election ahead of time...

assuming (as the Framers themselves appear to have done) that no one person (again, post-George Washington) could actually win a majority of the Electoral Vote thus cast, the House of Representatives would then choose the President from among the top five candidates (based on the number of Electoral Votes received by each)- but the Congressmen would be voting by State and not as individuals, with a candidate having to win a majority of the States represented in the House in order to then be elected President; the person with the highest number of Electoral Votes not chosen President would automatically become Vice-President (so that coming in first, yet short of a majority in the Electoral College, won that person something; note that it was entirely possible that the person who came in first would not necessarily come to be elected President by the House!)... note also that no vote of a Representative in Congress for President was to be counted individually (with the exception of those few States entitled to only one Congressman): the process of nominating and electing a President was, therefore, largely "untouched by human hands"- more or less an accident of the application of mathematics, as close as one could humanly get to an electoral process based on pure Reason...

and, of course, it never ever worked as designed!:

primarily because the already existent political "factions" on the State level rather quickly coalesced into national Parties, Parties that could- well before the Electors would be meeting to cast their two votes each for President- collude by post and/or by riding to political meetings on horseback, or even by meeting within the halls of Congress, to pre-determine exactly how "their" Electors, assuming that a Party's Electors in a given State were actually "appoint[ed], in such Manner as the Legislature thereof may direct" (to quote Article II, Section 1, clause 2 of the Federal Constitution), would vote should they come to be elevated to that State's Electoral College. Thus, the nominating of Presidential candidates was, already as early as that first post-George Washington election of 1796, taken out of the hands of the Electoral College by political developments the Framers had somehow failed to foresee; and, as a result there was no (as there still isn't any!) method provided in the U.S. Constitution to ever correct this.


The aforementioned Senate Committee declaration of 1915- combined with such things as America's entering World War I and then going "back to Normalcy" thereafter- moved such things as possible National Presidential Primaries very much to the proverbial "back burner"; and the decision of the United States Supreme Court in Newberry v. United States [256 U.S. 232 (1921)]- in which 'twas said that (direct) Primary Elections were "in no real sense part of the manner of holding the election" (and, therefore, were outside the power of Congress to regulate: even though this case was specifically about a Primary Election for the United States Senate), a constitutional position that put all Primaries outside of Congress's purview- rather obviously (as well as effectively) blocked any further effort to have Congress mandate a National Presidential Primary (or even otherwise regulate, by statute, the methodologies of presidential nomination in any wise whatsoever).

Almost exactly twenty years later, however, when the Nation's Highest Court overruled the decision in Newberry (in the case of United States v. Classic [313 U.S. 299 (1941)], about which I have already written on this website, where the Opinion of the Court stated that the authority of Congress... includes the authority to regulate primary elections when, as in this case, they are a step in the exercise by the people of their choice of representatives in Congress... [thus, as] [t]he right to participate in the choice of representatives for Congress includes, as we have said, the right to cast a ballot and to have it counted at the general election whether for the successful candidate or not [then] [w]here a state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary, is likewise included in the right), interest in a possible National Presidential Primary was renewed (although such interest had to be very much held in abeyance once the United States became involved in World War II shortly thereafter).

After the war, numerous proposals- both within and outside Congress- were made concerning a National Presidential Primary, instead of National Party Conventions, nominating candidates for President (and Vice-President) of the United States, many of these "piggybacked" onto proposals also seeking to reform the Electoral College itself (those I have written about, for this website, now more than a decade and a half ago-- particularly those seeking to mandate either Proportionality within the Electoral College or nationwide Electoral Vote by District [each of which, unlike proposals for Direct Election of the President (and Vice-President), would actually keep the concept of 'Electoral Vote for President (and Vice-President)' in existence (please also keep in mind that the number of delegates to the National Party Conventions were, back then, at least somewhat mathematically based on the number of Electoral Votes in each State [see my 'Why Are They All Here, Anyway?'])])...

the idea, in at least some of these post-World War II "piggybacking" proposals for Presidential Nomination Reform, was to (somehow) utilize the Electoral Vote in each State as a determinant of the winner of a National Presidential Preference Primary: for example, the Electoral Vote in each State might be divided among the contenders for a Party's presidential nomination based either on percentage of the vote received statewide by same or the contender with the most votes in each (more usually, Congressional) District would receive 1 "electoral vote" in the National Presidential Primary (with 2 such "electoral votes" going to the winner in each State); in either scenario (Proportionality or Districting), a contender for a Party's presidential nomination (as was, and still is, the case re: the actual election of an American President) would have to gain at least a majority of the total "electoral vote" in order to be declared the presidential nominee of that Party (and there were, often as not, provisions- within such proposals- for a later nationwide Runoff between the two presidential contenders with the most "electoral votes" should no contender for the nomination achieve at least a majority of same).

Again, as had been the case some four decades (give or take) earlier, none of these proposals went anywhere and, as things turned out, the Parties themselves would take Presidential Nomination Reform into their own hands (beginning with the Democrats and their 'McGovern-Fraser reforms' in the early 1970s: many of which reforms were themselves adopted [whether enthusiastically or reluctantly] by Republicans in several States or, in other States, foisted upon the Grand Old Party [once the Democrats had made significant electoral gains on the State level throughout most of the 1970s] through State electoral law- this, in turn, leading to the veritable "explosion" in the number of Presidential Primaries over the course of that same decade); meanwhile, and in any event, any such proposal for a National Presidential Primary mandated by act of Congress still broke itself upon the rocks and shoals of the very constitutional limitations already described above...

thus, the barest fact remains that, should one so desire a National Presidential Preference Primary (of one sort or another), one must know (as well as accept) that actually having one will necessitate- beforehand- the adoption of, and implementation of provisions within, a Constitutional Amendment specifically granting the Congress of the United States power to regulate the presidential/vice-presidential nominating process in the first place!


A dozen years ago or so (in fact, not all that long after I had first written that which I have already quoted from myself in italics above), I put forth just such an Amendment: one intended to "cover all the bases" whilst, at the same time, allowing Congress to have that same power of regulation over the process of nominating candidates for President of the United States (candidates who would later compete in a General Election for that High Office itself) currently enjoyed- and with no constitutional qualms whatsoever, by the way- by the Legislatures of the several States of the American Union as regards regulating, by law, the nominating of candidates for the Chairs of their own respective Chief Executives (their Governors, obviously)...

and, in order to spare the reader having to go elsewhere on this website in order to read my "proposal" (I will explain why the very word 'proposal' is here within quotation marks later in this piece), I present my Amendment in full (as well as in boldface) below; in addition, I explain- after each and every Section of said Amendment- just what it is I would be trying to accomplish with each such Section (as well as why): these explanations are in italics and are placed below so that the reader is not burdened with having to also go elsewhere to find said explanations (in addition, these explanations- as they had originally been composed back in January 2004- contained more than a few what are, by now, anachronisms that have been updated in the version of same found below)...

so, here goes...

 

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.

EXPLANATION: The intention of this Section 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 (again, it is no more than the exact same power that a State legislature currently has over nominations for State and local office). Under the first clause of this Section, Congress could- for example- decide to authorize, by statute, a National Presidential 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 the first clause of this Section.

Note, however that this first 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- at some point thereafter (which could well be within a year of this Amendment's ratification or, instead, perhaps many years hence)- 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 Presidential Primary.

Meanwhile, the second clause of this Section 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 [although, as North Dakota's Curly Haugland, for one, made clear to us all this past Spring, just how "hands-off" (or not) his own Republican Party should, in fact, actually be is itself subject to much debate and discussion]), that would be OK, too. This clause merely 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.

EXPLANATION: 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 (that is: the current week-by-week scheduling of Presidential Primaries, local Caucuses and/or higher-tier [above said Caucuses] Conventions we all saw, yet once again, during the first part of this very year of 2016, themselves choosing delegates to the later National Conventions of the Parties (where not also pledging/binding said delegates to the various contenders for a Party's presidential nomination).

 

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.

EXPLANATION: 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.

EXPLANATION: This section is merely 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!)- this 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, say, February 2023: 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, in such a case, be that of 2028; such laws- even if they were to be passed by Congress and signed by the President (or, perhaps, adopted by overriding a presidential Veto) as early as, say, the Summer of 2023 (the Summer immediately following ratification of this Amendment in this hypothetical)- would not apply at all to the nominations for the Presidential Election of 2024 (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 Article of Amendment has been ratified by the necessary three-fourths of the several States would, in this hypothetical, be the Midterm Congressional Elections of 2026 [these being the Midterm Federal Elections next following the calendar year (2023) in which the Amendment will have been ratified in this hypothetical]; only once the Midterm Elections of 2026, in this hypothetical, shall have intervened can any laws passed by Congress per this Amendment legally apply, thus the Presidential Election of 2028 would be the earliest possible Presidentil Election affected by the provisions of this Amendment were this Amendment to be declared part of this Constitution by some time during the calendar year 2023, as in this hypothetical). The same thing would be true if this Amendment were to be ratified by the 38th State in January 2024, January 2025 or- for that matter- any time between January 2022 (in WHICH case, the Midterm Election of 2022 is not in the year "next follow"ing the calendar year in which this Amendment would have been ratified": rather, the Midterm Elections of 2022 would, in that case, be in the same calendar year!) and December 2025.

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 at any point soon after this Amendment might be ratified to then be fully implemented re: the nominations for a particular Presidential Election. Note well, however, that, in our hypothetical in which this Amendment is ratified in 2023, once we pass the Midterm Election of 2026 without Congress having exercised its power under Section 1, there would no longer be any Section 4-based time restriction on Congress so acting at any time thereafter: that is, from the date of the Midterm Election of 2026 (in my original hypothetical herein) on, Congress could apply any laws it might pass under Section 1 to any Presidential Election from 2028 on. My assumption here is that Congress would not ever purposefully 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 have to contain a time-delay before actually becoming effective).

 

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

EXPLANATION: 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...

for who (besides the members of each house of Congress themselves as they might debate, and thereafter vote, on such bills that might be proposed in relation to the power granted to Congress in Section 1 of this Amendment) would ultimately decide what is "appropriate legislation" (or not) under this particular Amendment? The Federal courts (of course)- in their constitutional capacity to adjudicate [per Article III, Section 2, clause 1 of the U.S. Constitution] "all cases, in Law and Equity, arising under this Constitution", a Constitution that would (obviously) include the Amendment herein "proposed" should it ever (again, under circumstances that I myself- for one- cannot right now conceive!) be so ratified- for, as the U.S. Supreme Court itself has stated: Federal courts must for themselves appraise the facts leading to [a] conclusion. It is only by the performance of this obligation that a final and uniform interpretation can be given to the Constitution, the "supreme Law of the Land" [here citing Article VI, clause 2 of the U.S. Constitution: REB-A], this from the case of Smith v. Allwright in 1944.


I would now like to present the reader with the following two caveats as regards the above "proposal" of mine:

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 seem to allow the above Amendment to say what I mean it to say and intend it to do...

however, yes--- I could very well be wrong!

2. I am also not naive. My amendment (or something very like it) 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. As in the case of a National Presidential Nominating Primary being held on the same day throughout the country itself-- "Ain't happenin'!"-- and for quite a number of reasons:

First, despite the circus atmosphere surrounding the process of pre-National Convention primaries and caucuses/conventions in each State (and, again, we all were so recently caught up [if only, for the most part, vicariously] in said "circus" earlier this past year), there does not appear to be all that much of a public outcry across the length and breadth of the Nation to actually do something about this; thus, the politicians of either Major Party are under no significant pressure whatsoever to at all abandon the current presidential nominating methodology (even the so-called 'Unity Reform Commission' authorized by the lately concluded Democratic National Convention in Philadelphia is, at best, still only going to be, for the most part, "nibbling around the edges" of presidential nomination procedure considered more broadly [things such as (however greatly or not) reducing the mere number of Democratic 'superdelegates' in that Party's future National Conventions is nowhere near as extensive in scope a proposal as I have offered above]). As a result, I certainly don't see 2/3 of each house of Congress- later, if not sooner- sending an Amendment along the lines of my own "proposal" out to the States of Our Union for ratification and I also don't see 3/4 of the several States ratifying said Amendment if one were to actually be laid before them!...

this is precisely why I have referred to my Amendment above as a "proposal"- in quotation marks, that is. Truth be told, I would not be the least bit upset (or otherwise "bent out of shape") if the above Amendment I have "proposed" simply just sits here in cyberspace, eliciting no comment and thereby going nowhere: however, despite my attitude, please know it is intended to be- if only potentially- something of a "springboard" for any and all discussion about just how we here in the United States of America go about- procedurally, that is- deciding who actually gets to run in the November General Election for (and thereafter potentially become) President (and Vice-President) of the United States. Therefore, if the above Amendment- or at least something very like it- were to become part of the Constitution of the United States, I would also not be the least bit upset (or otherwise "bent out of shape")...

because it is, after all, up to the People of the United States- both in their respective capacities as citizens of the United States, as well as of their respective States (or the District of Columbia [or, for that matter, the unincoporated Territories and freely associated Commonwealths of the United States currently permitted to send delegations to National Party Conventions]), to think upon such things and then work them out (or not) as they each might see fit, prevailing upon their elected representatives in either house of Congress (or not) as they might wish to, thereby, affect the changes in presidential nominating process they themselves might desire. If my "proposal" above be something of a 'vehicle of cogitation' in this regard, then so be it...

if not, well--- it is still all well and good for me to be writing that which I am now so furiously typing.

Beyond all this, however, there are other issues as well (issues that, in my opinion, have to be well taken into account in the course of any due consideration about how best to go about possibly changing the procedures through which candidates are nominated for the American Presidency):

for the Major Parties are not going to so willingly abandon their National Conventions as formal presidential/vice-presidential nominating vehicles (regardless of the fact that the Primaries and Caucuses seem to be purposely set up so that we can likely know who the eventual nominee will be- perhaps even months- before his/her Party's Convention). Even in an age where only C-SPAN (now joined by video/audio streaming online) provides the fullest "gavel-to-gavel" coverage of these gatherings once provided by the major over-the-air national television networks a generation or so ago, these major networks- nevertheless- still cover at least some of the happenings at each Convention in Prime Time (and the Parties, naturally, schedule speeches before their respective Conventions by their "heavyweight"s accordingly). Neither Major Party (along with its members in either house of Congress or the several State Legislatures) is going to so willingly pass up on such free- and nationwide, to boot- "face time" for its candidates and its/their "spin" on the issues of the day!

Even if it be proposed that there still be National Party Conventions either before, or after, a National Presidential Nominating Primary (and I'll get to the very issue of "scheduling" shortly), the leadership cadres of each Party know that they will, far more likely, get "bigger bang for [their] bucks" [spent on such things as, say, National Party Conventions!]- in terms of the voters "out there" even paying attention to at least some of what goes on at said Conventions- only if said Conventions are still the very vehicle through which each Party's candidates for President and Vice-President of the United States are themselves actually nominated (even if we, as always now [even in 2016] seems to be the case, we know the names on each Party's National Ticket even before that Party's Convention is first gaveled into session).

Then there are those knotty issues revolving around the very logistics of just such a National Primary:

for, to start with, voter eligibility re: a Primary is determined solely by State law (and this all goes back to the requirement of Article I, Section 2, clause 1 of the Federal Constitution that those entitled to vote for members of the U.S. House of Representatives (and, since the adoption of the 17th Amendment to same now more than a century ago, United States Senators) in each State shall have the Qualifications requisite for [voters] of the most numerous branch of the State Legislature). While United States Supreme Court decisions such as those in the already cited (earlier in this piece) United States v. Classic and Smith v. Allwright [321 U.S. 649 (1944)] (about which I also wrote about for this website more than eight years ago now) have made most clear that a Primary Election nominating candidates for either house of Congress is, constitutionally, to be considerd a State function (even if the Primary itself be held under political Party auspices alone) and that, as a result, the entitlement of a voter to cast a vote for his/her member of either house of Congress in a General Election includes, potentially, at least a chance to vote in the Direct Primary that actually nominates candidates to those offices, the Nation's High Court has never decided a case where said decision would at all adversely impact upon a State's power to determine, by its own law, who can actually vote in such a Primary in a given State.

As a result, some States have allowed "Open" primaries which permit any voter- regardless of Party affiliation- to participate in either Party's Primary re: a given election cycle without losing their registration with another Party or, for that matter, as an Independent unaffiliated with any Party; other States, on the other hand, have "Closed" primaries- those that restrict the voting in a Party's Primary to only those who are registered "members" of that Party. The only issue decided by the U.S. Supreme Court in this regard has involved the right of a political Party (as a private association of persons with like-minded political views) to only accept the results of a Presidential Primary conducted under its own rules, rules which themselves trump State law (in Democratic Party v. Wisconsin ex rel. La Follette [450 U.S. 107 (1981)] ).

Presumably, were my "proposed" Constitutional Amendment- or something very like it- to ever be adopted, Congress could thereafter simply overturn Democratic Party v. Wisconsin by statute (but, again, not until said Amendment were to become part of the Federal Constitution!). However, let's say Congress not only has the power to do so under an Amendment along the lines of my own but, in fact, does so: which is it then to be re: a National Primary? 'Open' or 'Closed'? And, if one chooses not to define who would be eligible to participate in a National Presidential Nominating Primary via any Constitutional Amendment authorizing such a National Primary (or, for that matter, a statute passed by Congress under the power granted it in my "proposal" above) and, thereby, continue to leave it up to the individual States to alone determine this, one is then very likely inviting more than a few lawsuits testing some rather interesting- yet altogether problematic- Federal Voting Rights issues (for should Oregon, say, allow someone to vote in the National Primary that, for instance, my own State of New Jersey does not permit to vote in that same National Primary, is that at all fair?-- more to the point, would it even be constitutional??)

Then there is the ever-present question of just how many (or, at least, what the maximum number of) candidates on a National Primary ballot should be-- as well as how the actual number of qualified candidates on the ballot is actually to be determined (achieving a minimum number of signatures on petitions in a minimum number of States? If so, should this be administered by some Federal agency [say, within the US State Dept.-- after all, on the State level, the Secretary of State is the highest elections official, why not on the Federal level as well]? Or would a Federal elections overseer be seen as all too potentially overreaching [in which case, the petition-vetting would have to be done by the States themselves (many, if not most, of which have differing standards of ballot-access [in terms of number of necessary signatures- and from where within a given State] from one another, let alone from what would otherwise be a necessary national, Federally-mandated standard])])?

One simply has to wonder just what would have happened had all 17 Republican presidential contenders coming into the 2016 Presidential Election cycle been on a single National Republican Presidential Primary ballot-- or would there have been some kind of pre-Primary vetting process in place (that is: apart from the ballot-access issues already noted in the preceding paragraph)? Many of the National Primary proposals earlier in the 20th Century envisioned some kind of "pre-Convention" knocking the number of viable, eligible presidential contenders to appear on the ballot down to a relative handful: nowadays, this would most likely be in the form of the series of nationally televised debates, month after month, that would- in the case of a National Presidential Primary- have to then additionally so function (keep in mind that, as things turned out, more than a few of the 17 GOP presidential candidates this time round were already out of the running even before the first caucuses in Iowa and first Presidential Primary in New Hampshire-- this gives something of an indicator of how just such a "winnowing in" [tip of the hat here, again, to former Senator Fred Harris] process via such a sequence of debates might actually so work).

Putting both ballot access and voter qualifications aside, when would this National Primary actually be held? One school of thought I have seen would have the National Primary take place sometime late in the Spring (say, mid-to-late May into early-to-mid June): in such a case, the Winter and Spring of a presidential election year currently filled with individual State Presidential Primaries and Caucuses/Conventions would still contain much of what we have seen of late (both before, as well as during, said Primaries and Caucuses and/or Conventions): contenders for the presidential nomination of a Major Party "jockeying for position" through attending campaign rallies, making speeches, participating in televised debates (which, as noted in the immediately preceding paragraph, would be functioning as a method of pre-Primary "vetting" reducing the number of presidential contenders in a National Primary to an at least manageable level), etc. Once the presidential nominee is so chosen via such a Spring National Primary, the Parties could then still hold their National Conventions that Summer to hammer out a platform, etc. and even have the presidential nominee of the Party (already determined in the preceding National Primary) formally name his running mate (most proposals for a Spring National Primary, in fact, still leave the Party's choice for a vice-presidential candidate up to the Party's presidential nominee and/or the Party itself: the Party's National Convention would, thereby, be the vehicle through which the Party's vice-presidential nominee is then formally ratified) and also make an acceptance speech before his or her Party's respective Convention (still, one would think, carried "live" in Prime Time by the major TV networks [whether over-the-air, cable, satellite or streamed online]). In such a National Primary-followed by National Conventions schedule, the Fall campaign for the Presidency going into the November General Election would, as is the case now, begin in earnest come Labor Day weekend.

But another school of thought, perhaps emulating the concept- in Parliamentary Democracies- of the short, "matter of weeks", campaign would, instead, have a National Primary occur after any and all National Conventions (at each of which, presumably, the several contenders for a Party's presidential nomination could get requisite pre-National Primary "face time" on national television)- that is, sometime in or around early to mid-September. This last (a Fall National Primary) would also allow for the National Conventions (here being held before the National Primary) to be the vehicles for "winnowing in" (or not) candidates who would thereafter appear on a Party's National Primary ballot (the process in the case of an early Fall National Primary would, therefore, be much like the so-called 'Challenge Primary' system utilized in a handful of States over the past century: either presidential contenders would have to gain a certain 'threshold' percentage of the vote of the delegates at the Convention to qualify for the National Primary ballot, or a leading presidential contender gaining a supermajority of the votes of the delegates at the Convention would, by definition, keep any and all other presidential contenders off the National Primary ballot, if not even both [one has to assume at least the possibility that, from time to time, a single presidential candidate might run in a National Presidential Primary in his own Party unopposed: say, when an incumbent in the White House is seeking a second term]).

Then there is the problem of a National Runoff (between the top two vote-getters in a National Presidential Primary, where necessary):

Putting aside the issue of how long a time should elapse between the original National Primary and said Runoff, should it be necessary (two weeks? three weeks? four? five? six? even seven?-- and how would such a Runoff at all be reconciled with those who advocate a "late" [September] National Primary [since such a Runoff would then have to be scheduled too close to the November Presidential Election itself]??), the whole concept of a national Runoff is controversial to begin with. Yet, at the same time, the question still begs: just how democratic is it, really, to allow someone to be nominated for the Presidency whom some two-thirds (or even three-fifths) of the voters in a National Presidential Primary did not even want to have serve in that High Office in the first place?

There is also the issue of just what the threshold for Runoff (that is: the percentage of the vote below which the first-place presidential contender in a National Primary must fall in order to even trigger such a Runoff) should itself be. A 40 percent threshold is the one most usually put forth (this is also the threshold suggested by those who proposed Direct Election of the President (and Vice-President) nearly a half century ago)...

but the National Conventions of both Major Parties currently require at least a majority [50 percent of the total vote, plus 1 vote] of the votes of the delegates in order to nominate someone for President (or, for that matter, Vice-President), so how might a lower threshold than outright majority in a National Presidential Primary then be justified? (Although I once, in a response to a vox Populi, noted that- were one to take the the aggregate vote in the Presidential Primaries for each Party in each year between 1976 [the very first year in which more States were holding Presidential Primaries than the number not doing so] and 2000 [the most recent Presidential Election at the time I was so writing] and, further, only looking at contested races [that is, not taking into account races where an incumbent President was largely unchallenged in his bid for re-nomination]- there would only have been 2 runoffs in 11 competitive presidential nominating races during that period [1976 Democrats and 1984 Democrats] had a 40 percent threshold been applied to a National Presidential Primary at the time [with the obvious caveat that one must be overly cautious when applying the total votes cast in Presidential Primaries in past election cycles to the problem: for those who vote in Presidential Primaries are voting at various times throughout the late Winter, Spring and into early Summer preceding the Major Parties' National Conventions (with the result that more than a few candidates on the ballot in the earliest Primaries likely are not at all viable as potential presidential nominees come the later Primaries, something that has its own concomitant effect on the voting in said later Primaries as compared to the earlier ones); in addition, not all States or equivalent jurisdictions being represented at the National Conventions even hold Primaries (thus not every voter who could conceivably participate in a Party's delegate selection process was ever counted among the totals resulting from all the Presidential Primaries of any given Party in any given Presidential Election year from 1976 through 2000 being so added together). Nevertheless, these statistics are- in the main- still rather instructive!])

All in all, then, even if- somehow- a popular consensus were to emerge that a National Presidential Nominating Primary be far more desirable than the current method of nominating Presidential (and Vice-Presidential) candidates (and it would almost certainly have to a supermajority consensus, one large enough nationwide to be able to force [via all due political pressure] a Constitutional Amendment authorizing a National Primary through both a reluctant Congress and just as reluctant State Legislatures), that consensus could quite easily break down (which, in turn, would likely lead to Congress itself becoming even more reluctant to exercise its power under my own "proposed" Amendment above [or something very like it]) over such issues as ballot access, voter eligibility, the actual date(s) for holding this National Primary, as well as whether or not there should even be a Runoff should no one contender for the presidential nomination reach a particular threshold, thereby preventing the implementation of a National Presidential Primary even if there were a more general consensus among the American People in favor of the concept (again- as in many things in Politics- the devil is, indeed, in the details!)

One is, in addition, fairly faced here with what political scientists have come to call the "Politician's Dilemma", in which even if a politician happens to become convinced of reform (or, at least, comes to feel it's the sense of enough of his/her own constituents that, should he/she not somewhat consider it, his/her failure to do so may come to adversely affect his/her chances at re-election [or election to another, desired elective office]), he/she is- at the same time- not all that eager to thereafter "bite the hand that feeds" (in the case of that we are herein discussing, his/her own Party [along with its supporters and, especially, its donors]) by so strongly supporting said reform against the interests of the Party and/or the stronger wishes against it amongst at least most of that Party's leadership cadre.

But, much more than this, the simple fact remains that being nominated as a candidate for elective office is not at all the same as actually later being elected to that same office (unless, albeit arguably, someone already holding said office is being re-nominated) and, so long as the vastest majority of candidates in American General Elections are being nominated by political Parties- which, themselves, are (again) private associations of at least generally like-minded individuals (regardless of the level of governance: local or County, State or national)- there is likely no widely acceptable manner through which the current method of nominating candidates for President (and Vice-President) of the United States can (or, perhaps, even should) be replaced.

Therefore, and once again:

Ain't happenin'!!!...

but at least we Americans remain ever free to think, if not even talk amongst ourselves, about it anyway.

 


Commentary Home