Presidential Electoral Reform and Congress
Tuesday, December 18, 2007
by Jim Riley
Under terms of the 23rd Amendment, Congress has the authority to direct the manner in which the 3 presidential electors for the District of Columbia are appointed. Congress has by law determined that the electors be appointed on the basis of popular vote cast for slates of elector candidates running under the banner of their party and its Presidential and Vice Presidential nominee.
Congress also has the authority to determine the manner in which Presidential and Vice Presidential candidates secure a place on the election ballot, and also how the elector candidates are chosen.
Congress currently has authorized the national committee of the political parties to name the Presidential and Vice Presidential nominees (or more precisely the DC party body recognized by the national committee). That is, the national party conventions select the candidates placed on the ballot.
But why couldn't Congress determine by law that the candidates for President and Vice President on the November ballot be chosen on the basis of the results of a partisan primary? The elector candidates could be designated by the presidential candidates who are seeking the nomination.
Further, why couldn't Congress determine that the nominees be determined based on the collective vote of State primaries held on the same day, and under the same terms? That is, if the legislatures of California, New York, Alaska, and Vermont pass the same legislation, then they would hold a collective primary on a single date, to determine the party nominees whose name will appear on the general election ballot in their state, bypassing the conventions and the delegate selection primaries?
Mr. Berg-Andersson responds:
To start with, allow me to here quote the 23rd Amendment to the United States Constitution (to which Mr. Riley himself has referred) in its entirety:
SECTION 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of Electors of President and Vice-President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of a President and Vice-President, to be Electors appointed by a State; and they shall meet in the District and perform such duties as provided by the Twelfth Article of Amendment.
SECTION 2. The Congress shall have power to enforce this Article by appropriate legislation.
For purposes of this discussion (such purposes based on my own reading of what Mr. Riley himself has brought up in relation to the above Amendment in his 'vox Populi' above), there are three important clauses from the 23rd Amendment which are most germane to both what Mr. Riley has written and what I am here writing by way of response to that which he has written:
first, that the Electors for the District of Columbia only are to be appointed in such manner as the Congress may direct;
second, that these Electors for D.C. are themselves authorized, by said Amendment, only to meet in the District and perform such duties as provided by the Twelfth Article of Amendment;
and, finally, that Congress shall have power to enforce this Article [meaning, of course, the 23rd Amendment itself] by appropriate legislation.
First of all note that the first of these three clauses mirrors the language of Article II, Section 1, clause 2 in which it is stated that Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors, etc. This is very important to note because it indicates that, via the 23rd Amendment, Congress has been given the same power to "direct the manner" of choosing Electors as the Legislatures of the several States already have had under the original text of the Constitution but only insofar as the District of Columbia is concerned.
Why is this so?
Because, per the second clause of the three I have specifically brought up above, the 23rd Amendment only relates directly to the 12th Amendment to the Constitution which itself only changed the method by which Presidential Electors actually cast their Electoral Votes (prior to the 1804 Election [the first affected by the 12th Amendment], each Elector would cast two votes for President; from 1804 on, they would vote separately for President and Vice President); the 12th Amendment did not, however, at all change the manner in which the Electors themselves had always been chosen! (in other words: they would, even after 1804, continue to be "appointed" in such Manner as the Legislature [of the respective State] may direct ).
Thus, the very premise of Mr. Riley's second paragraph- in which he has written that "Congress also has the authority to determine the manner in which Presidential and Vice Presidential candidates secure a place on the election ballot, and also how the elector candidates are chosen"- while certainly correct insofar as D.C. alone is concerned, would be wrong as regards Congressional oversight over Presidential candidacies throughout the rest of the Nation: for it is the States that retain (under the power granted their own Legislatures by the very text of the original Constitution, as drafted by the Framers met in Philadelphia back in 1787) the authority to so determine the manner in which Presidential and Vice Presidential candidates secure a place on the ballot and also how the elector candidates are chosen (since it is, in reality, the Presidential Electors for various and sundry candidates who are being "appointed" on General Election Day in Presidential Election years: the appearance of the names of Presidential and Vice-Presidential candidates on the ballot in a given State is, technically speaking, merely ancillary to that desired result); Congress, meanwhile, has no constitutional power whatsoever to interfere (for reasons that will be specifically mentioned later on in this very response)! Only in relation to the District of Columbia may (and here I now bring up the third of the three clauses from the 23rd Amendment I specifically cited earlier) Congress do the same through appropriate legislation.
It is precisely because there are, potentially, as many as 50 (one per State of the Union) different methodologies by which Presidential (and Vice Presidential) candidates are able to get their names placed on the ballot (with Congress also able to "chime in" with a 51st methodology via its own power re: D.C.'s ballot under the 23rd Amendment) that perennial Third Party/Independent presidential candidate Ralph Nader's oft-stated dictum to the effect that ballot access regulation is essentially a form of "political discrimination" (a statement with which I myself happen to agree, by the way) makes most sense-- for Mr. Nader is here decrying that very State ballot access regulation within a system in which there can- absent serious constitutional reform, obviously- be no Nationwide ballot access regulation, even as regards the "national" offices of President and Vice-President (though, to be fair, Mr. Nader would likely not be all that happy about the most likely National ballot access laws, even were there any, considering which Parties tend to almost always elect their candidates to a Congress that might, someday, actually be empowered to so regulate).
To here use an analogy as illustration, if not proof: if one happens to like only either Coke or Pepsi, fine!-- but, I can assure you, there are quite a lot of people here in the USofA who are grateful that there are other soft drinks besides these two available for purchase by them on the shelves of their local supermarkets! (though, to be fair, quite a few of these alternatives are also produced by the same companies that also produce Coke and Pepsi)-- however, this type of wide freedom of choice is more usually not the case when Americans go to the polls every fourth November to choose those who will hold the two highest Executive offices in the Land.
And those who run the two Major Parties actually want it this way, obviously- for from which two Parties are the very members of the State Legislatures (which, as I've said, do have power over ballot access regulation, even re: National Elections) more usually chosen? And I have been at many a social gathering, over recent years, with many a local Party operative of one or other of the two "Majors" in attendance: I can tell you, from my own observation and experience, that one can so easily learn the newest and most colorful usages of so-called "four letter words" an American can possibly produce simply through one's purposely bringing the two proper nouns "Ralph Nader" into any conversation with said Major Party operatives! ;-)
But to now get back to all seriousness here:
Mr. Riley's contention in his third paragraph- that "Congress currently has authorized the national committee of the political parties to name the Presidential and Vice Presidential nominees (or more precisely the DC party body recognized by the national committee). That is, the national party conventions select the candidates placed on the ballot"- is also all fine and good insofar as D.C. alone is concerned but this, too, cannot be applied outside of D.C.- at least not by Congress itself: for Congress does not at all "authorize" the National Party Conventions themselves (thus, Congress authorizing the placing of the nominees of Party National Conventions on D.C.'s ballot is done merely out of convenience: it is a recognition- via Congressional authorization- of Presidential candidates already chosen by a body [the National Convention of a Party] over which Congress has no more authority than a State's Legislature might have).
Instead, these National Conventions are solely historical by-products of organization of the Parties themselves at the State and local level over time: in addition, once these Party-run/Party-controlled "extra-Constitutional" (thus, not even within the purview of Congress to begin with) Conventions have so nominated their respective Presidential and Vice-Presidential candidates for the November General Election, it is State law (and not at all Federal regulation) that places those of the two Major Parties (more or less as, however technically, "fill-ins" for each Party's respective slates of Presidential Electors) on the ballot in those States automatically (any other Presidential/Vice-Presidential candidates outside of the two Major Parties [also as "stand-ins" for their own slate of unlisted Elector-candidates] on the ballot are solely at the sufferance of said State legislation, with some States being more amenable to Third Party/Independent presidential bids [or, rather, bids to be "appointed" that State's Presidential Electors] than others). As regards the District of Columbia alone, Congress is here- again- merely parroting that which States already do.
As for Mr. Riley's fourth paragraph, his query as to why Congress can't "determine by law that the candidates for President and Vice President on the November ballot be chosen on the basis of the results of a partisan primary", I have already answered that many times on this website. I can here only repeat that which was originally posted (by way of quoting from the text of the United States Constitution itself) in red typeface atop the home page of 'The Green Papers' on 16 December 2007, viz.:
WHERE, I might ask Mr. Riley, is there any constitutional authority for Congress to do that which he is here proposing, given the above quoted provisions within the fundamental document? I myself find none within the above-quoted constitutional verbiage (and, again, please note that neither of these aforementioned provisions was at all altered by either the 23rd Amendment Mr. Riley specifically cited or the 12th Amendment to which that very 23rd Amendment itself refers [for reasons I have already opined earlier in this very response, so I need not repeat them here]).
In essence, therefore, the 23rd Amendment only permits Congress to do no more in relation to the Presidential Electors for the District of Columbia than that which a constituent State of the American Union could- prior to the adoption of said Amendment- already do (and can still do!) in relation to its own Presidential Electors.
And the very same constitutional "roadblocks" I have cited above would, by the way, also put the ol' ki-bosh to Mr. Riley's concept, at the start of the fifth and final paragraph of his 'vox Populi', that Congress can "determine that the nominees be determined based on the collective vote of State primaries held on the same day, and under the same terms", for- again- there is absolutely no constitutional authority currently granted to Congress under which this can legally even be done!
To repeat that which originally appeared under the aforementioned 16 December 2007 posting of relevant quotations from the U.S. Constitution on the home page of this website:
Note that, per the above, Congress does not, constitutionally, have the same power to regulate, by Law, nominating procedures for the top two elective Executive officers that the State Legislatures already have re: the top elective Executive officers of their respective States...
and, as I indicated in my interview with the 'Rear Vision' radio program on Australian National Radio of that same date, I see this as a serious flaw within the overall system of US Presidential Nomination and Election...
not that the same Major Party operatives at those social gatherings I earlier cited would necessarily agree with me! ;-)
Lest anyone think this entire 'vox Populi' be solely dedicated to my merely constantly criticizing Mr. Riley's comments above, let me now point out that he does bring up one intriguing avenue through which Presidential Nomination/Election reform might yet occur, even with the constitutional "roadblocks" I have herein cited and it happens to be one I myself never before thought of (so I, here and now, give Mr. Riley all due credit for this one):
Mr. Riley suggests that, for example, "the legislatures of California, New York, Alaska, and Vermont pass the same legislation, then they would hold a collective primary on a single date, to determine the party nominees whose name will appear on the general election ballot in their state, bypassing the conventions and the delegate selection primaries". In other words, Mr. Riley is here proposing, in effect, a 'Uniform Presidential Nominations Act' (in the same manner as other so-called "uniform" laws- the most well known of which is probably the Uniform Commercial Code- in which the several States of the American Union adopt legislation containing, more or less, the very same verbiage so that, once all the States have done so, there is- even absent Federal [meaning, for all practical purposes, Congressional] action- a system re: the subject of such "uniform" legislation that is, effectively, nationwide in scope). Thus, what Mr. Riley here suggests would have nothing at all to do with Congress at all but would merely be the result of actions taken by the States on their own, without the necessity for Congress to determine anything in relation thereto.
Getting such a Uniform Presidential Nominations Act enacted would, of course, be a rather complicated process (though certainly not all that much more complicated than getting a Presidential Nomination Reform Constitutional Amendment, such as that I myself proposed, through both Congress and at least 3/4 of the States) and, apart from said complexities, would face pretty much the very same opposition that an Amendment, such as mine, granting Congress that power to regulate Presidential (and Vice Presidential) Nominations it currently lacks would also face- above all, the question: would the Major Parties even really want this? (if not, Mr. Riley's proposal is as "Dead on Arrival" as my proposed Constitutional Amendment: again, which Parties are more usually represented in each State's Legislature?).
In addition, unlike a Constitutional Amendment (which would need at least 2/3 of the membership of each house of Congress to support it, yes- but, once sent out to the States for ratification, only 3/4 of the States [albethis still a huge hurdle] need so ratify for it to then become effective nationwide), a Uniform Presidential Nominations Act would not be at all effective until and unless adopted by all 50 States (plus Congress would, in the end, have to also be involved in any event, for only Congress could adopt it on behalf of the District of Columbia [as well as, perhaps, any other Territories currently invited to send delegates to the National Conventions] under its power to make all needful Rules and Regulations for said Territories (per Article IV, Section 3, clause 2 of the Federal Constitution]).
And there always lurks that sovereign power of any State of the Union to potentially opt out of such so-called "uniform" acts on its own by simple repeal by its own Legislature (if signed by said State's Governor or, where such signature be lacking, legislative override of a Governor's veto); therefore, such a Uniform Presidential Nominations Act- even if adopted- would ever be in danger of losing its oxymoronic "reasonable permanence as Law" were a State to so unilaterally "leave the system" (one would have more than enough trouble convincing, say, an Iowa or New Hampshire- so used to their respective primacy re: the current Presidential Nomination process so as to, by now, see it as an outright Entitlement- to join in such a uniform act as Mr. Riley suggests in the first place; how much more, then, would States such as these continue to be tempted to then leave such a uniform system even after it had already been adopted by all? This would only serve to create a modern version of the same kinds of problems that, some 220 years ago, crippled the Articles of Confederation and mandated the drafting and adoption of something along the lines of the Constitution of the United States in the first place!)
Say what you will about my own proposed Presidential Nomination Reform Amendment, at least it's flexible: for I leave it up to Congress, once it has been granted power to regulate Presidential and Vice Presidential Nominations, to decide just how to go about this (or, for that matter, not) through each of its houses' own respective processes of debate and voting (subject to Presidential approval or override of a presidential veto, of course). On the other hand, a Uniform Presidential Nominations Act, such as Mr. Riley- in essence- proposes would have the verbiage re: its presidential nominating methodology "locked in" by the actions of the very first State to adopt it and, then, every one of the remaining 49 States (plus Congress, on behalf of the District of Columbia- if not other Territories in addition to D.C.) would have to weigh in on- and in favor of- said methodology before such a uniform act could be at all effective. Seems like the proverbial "too many cooks" to me!
But I do not write any of the above to merely denigrate, or otherwise disparage, Mr. Riley's idea (I merely point out at least some of the potential pitfalls it would likely face, many of which would also apply to my own proposed Constitutional Amendment), for his is a most worthy proposal- certainly as worthy as my own in relation to what I have called " 'talking points' re: serious discussions on Presidential Electoral Reform in general, including re: Presidential and Vice-Presidential Nominations" and I sincerely thank Mr. Riley very much for this particular contribution within his 'vox Populi', regardless of any and all disagreements I myself have with most of what he has written, for it provides much of that proverbial "Food for Thought" that is most necessary here.