Law and Dis-Order: The Imploding System for Choosing the Next President

By RICHARD L. HASEN

Wednesday, Aug. 29, 2007

Our county's multi-layered system for nominating and choosing presidential candidates is imploding. The public financing of presidential campaigns, put in place after Watergate, is in shambles, such that no top-tier candidates are expected to participate in it for the 2008 elections. Our traditional primary season, beginning with the Iowa caucuses and the New Hampshire primary, is being threatened by a new rush to the front of the line by many states, with first Florida, and now perhaps Michigan, moving up their primaries to January. The move raises the spectacle of a Christmas caucus in Iowa and the Democratic Party refusing to seat Florida's delegates at the party's nominating convention next summer.

Meanwhile, former Tennessee Senator Fred Thompson has been "testing the waters" of a presidential candidacy so long and so deeply that he's drawn a complaint filed at the FEC claiming he's really a presidential candidate (allowing him to get those "Law and Order" residuals before officially declaring his candidacy, an act which would force NBC to take his shows off the air under equal time rules).

Finally, and most importantly, California Republicans are trying to game the Electoral College, by placing a measure on the June 2008 election ballot which would change California's winner-take-all method for allocating the state's electoral college votes to a system awarding votes based on the winner of the vote for president in each California congressional district--a change which, if enacted and upheld as constitutional, could well swing a close election to a Republican candidate.

What gives? And why the implosion now? Simply put, our politics have become too sophisticated to be contained by the current laws governing our system for choosing the president. With the stakes this high, political actors would be fools not to try to game the system.

Why the Public Financing System Is So Bad, Candidates Don't Even Bother

To begin, the public financing system is failing for the simple reason that the 1974 law hasn't kept up with the costs of campaigning. In the primary season, the law allows candidates to raise private contributions, and gives candidates some matching funds provided they agree to certain spending limits. In the general election, participating candidates forego all private contributions to their campaigns in exchange for a lump sum from the government.

The system was supposed to make politicians less beholden to contributors and give them more time to campaign for office, rather than raise funds. But the system is underfunded (thanks to a confusing checkoff system on our tax returns that few really understand--it does not increase your taxes), especially when one considers the opportunity costs of participating. As George Bush and John Kerry learned the last time around, when each refused public financing during the primary period, there's a whole lot of money to be raised from people interested in the outcome of the election. Each of them raised over $200 million in the primary season, and had they opted out of the system in the 2004 general election, who knows how much they would have raised?

Unfortunately, Congress hasn't had the political will to increase the amount of public financing to something more reasonable: Opponents of public financing call it "welfare for politicians." Nor has Congress or the FEC fixed the rules for determining when someone becomes a bona fide candidate for office. When the law fails to keep up with the times, we can't expect anything but for politicians to take advantage of an opening they have been given.

But those problems with our presidential system pale in comparison to other problems on the horizon - such as the race by the states to the head of the presidential primary line.

The Race Among the States To Be First in the Primary Season, and Why Rotating Regional Primaries Would Be Preferable

The rules for nominating presidential candidates are partly set by the political parties, and partly set by the government. State governments get to set the dates for political primaries, but the parties get to decide which delegates get seated at party conventions.

Until recently, the process was orderly. But Florida's recent decision to run its primary in late January has opened the floodgates to a race to be at the front of the line. The result thus far is that, by the time 19 (or more) states have their primaries on Feb. 5, 2008, the primary season may be over, leaving effectively a nine-month general election season for president.

Such a system is bad for the public in a number of ways. The system will increase the role of money, because candidates will have to get their message out quickly and broadly in a number of very expensive states like California, Florida, and New York. Voters will be deprived of a chance to learn about the candidates over time, and watch how they react during the course of the primary campaign season. We don't know that party-nominated candidates will reflect the choices of a majority of each party's voters. And of course, we'll all be subjected to a blistering general election campaign starting ever earlier, making it even more difficult for the Congress and current president to get anything done during the elongated election season.

There's likely nothing that Congress can do about this problem for this election, but it should seriously consider some sort of set of rotating regional primaries for future presidential elections. There are constitutional questions whether Congress has the power to impose this system on states, but the recognition that a national solution is necessary to stop the race to the front of the line might induce courts to uphold Congress' law imposing such a system.

The Ongoing Winner-Take-All Versus Proportional Electoral Vote Debate

Finally, there's the matter of messing with how electoral votes are allocated. The proposed California initiative is a brilliant piece of political strategy, capitalizing on voters' distaste for the winner-take-all method of choosing presidential electors in each state. (FindLaw columnist Vikram Amar wrote about it in detail earlier.) But again, to the extent the Electoral College is a problem, it calls for a national solution. California's solution would be unilateral disarmament by the Democrats. (To make the measure fair, it would have to be matched by a similar move by a large state dominated by Republicans, but with a significant number of Democratic districts.)

In terms of a national solution, a constitutional amendment abolishing the Electoral College might be popular with voters, but it is unlikely to pass. Some states likely wouldn't want to give up the advantages they enjoy under the current Electoral College system.

The proposed National Popular Vote plan could make an end run around this problem by providing that if enough states (holding a majority of the votes in the electoral college) agree, all of those states' electoral votes would be awarded to whomever won the national popular vote for president. The proposal is open to criticism by those who like the Electoral College, and it too could be unconstitutional (as violating the Constitution's "Compact Clause"). But it is at least a step toward a national solution.

We shouldn't be surprised, in the post-Bush v. Gore environment, that political actors will take every legal step to gain political advantage. The trick is finding the will to impose law and order so that individually-rational decisions by these political actors don't lead to irrational results for the country as a whole.


Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles, writes the Election Law Blog.

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