"TOO PLAIN FOR ARGUMENT?" THE UNCERTAIN CONGRESSIONAL POWER TO REQUIRE PARTIES TO CHOOSE PRESIDENTIAL NOMINEES THROUGH DIRECT AND EQUAL PRIMARIES[dagger]

Article excerpt

Introduction

After the 2008 presidential election season concludes, no doubt there will be calls to change the presidential nomination system, especially on the Democratic Party side. Already before the current season began, Congress explored legislation to prevent the "frontloading" of the primary process through the creation of a series of rotating regional primaries.1 The close contest for the Democratic Party nomination this winter and spring revealed additional issues beyond the timing question. Critics have argued that the caucus system used in some states is unfair and poorly administered,2 that the unequal weighting of votes for purposes of delegate selection violates democratic principles,3 and that the fate of the Democratic Party presidential nomination should not turn on the votes of unelected "superdelegates."4

It is certainly possible that the parties themselves will change their nomination rules in response to these criticisms, as the parties have done in the past. But in the event the parties cannot agree on changes, Congress may consider legislation imposing changes to make the nomination rules comply more with the typical "one person, one vote" norms applicable to general elections. At the extreme, Congress might require presidential nominations to occur through state-by-state direct primaries conducted under one person, one vote principles. Here, I explore the question of whether Congress has the power to impose such primaries on the parties and the states if the parties, states, or both object. I do not consider the wisdom of such legislation.

As I explain, the main argument that parties can advance against congressional (or for that matter, state) imposition of a direct presidential primary is that it violates the First Amendment associational rights of political parties to determine their method for choosing their standard bearers.5 This argument would appear to have much force given recent Supreme Court cases recognizing the parties' rights to overrule the states on the open or closed nature of political primaries. On the other hand, the Court has also accepted as "too plain for argument" a governmental power to require parties to use direct primaries to choose their nominees to assure fairness of the process.6 So resolution of the question is uncertain.

The second argument that the parties or the states may raise against Congress is that Congress lacks the power under the Constitution to set the rules for presidential elections.7 Such an argument reads congressional power under Article II of the Constitution narrowly,8 limited to setting the time for choosing presidential electors. Though the textual argument under Article II has some force, both Court precedent and policy suggest that the courts could well accept congressional power to impose at least some regulations on the primary process, such as regulations setting the timing of primaries or caucuses. It is not clear whether congressional power would extend as far as the imposition of a direct presidential primary against the parties' and states' wishes.

Part I of this Essay briefly reviews complaints from the 2008 election season about the presidential nominating process. Part II considers the party autonomy argument against congressional legislation imposing a direct presidential primary. Part III considers the congressional power argument. This Essay concludes by noting that even if Congress may lack the power, the threat of congressional action could spur the parties to reform themselves.

I. COMPLAINTS ABOUT THE 2008 PRESIDENTIAL NOMINATION PROCESS AND POSSIBLE LEGISLATIVE REMEDIES

Each state may make its own rules setting forth who may vote in party primaries, and these rules are subject to constitutional objections by the political parties.9 Major party presidential candidates are chosen at presidential conventions, whose delegates are chosen through primaries or caucuses conducted in each state. …