July 16, 2008

Lowenstein on Presidential Nomination Reform

Dan Lowenstein has posted this paper on SSRN. Here's the abstract:

The drawn-out contest for the Democratic presidential nomination in 2008 may temporarily mitigate but is not likely permanently to end pressure to halt or reverse the front-loading of presidential primaries and caucuses, including pressure for action by Congress. In this essay, written for publication in a forthcoming Brookings volume, REFORMING THE NOMINATION PROCESS edited by Steven S. Smith and Melanie J. Springer, I take no position on the desirability of reform, other than to support a ban on nominating events prior to a specified date in February or early March. Rather, the essay concentrates on congressional power to regulate the timing of nominating events.

I argue that some commentators have underestimated the structural arguments against any implied power by Congress to regulate presidential nominations. However, relying on the 12th Amendment, I come to the same conclusion as most commentators, that Congress does have the implied power. With respect to possible limitations on Congress' power deriving from the parties' associational rights, it is necessary to consider who the likely complainants will be. The most likely entities to object to congressional regulation are state governments and state parties. But the former have no first amendment rights against congressional action and the latter's claims would be quite weak. National parties could have stronger constitutional grounds for objecting to congressional regulation, though it is far from clear that they would prevail. More importantly, the prospects for congressional action are not particularly great in any event and the chances that Congress would act over the strenuous objection of one or both major parties are remote. Regulation is not unconstitutional on associational grounds unless the affected association objects. Therefore, whatever the national parties' theoretical associational rights may be, there is little likelihood Congress will regulate in an unconstitutional manner.

In a brief final section, I suggest that despite the probable constitutionality of congressional regulation, substantive regulation is undesirable, with the possible exception of setting a starting date. If Congress feels under political pressure to do something more, it would be better advised to facilitate joint deliberation and negotiation by the two major parties and to assist them in enforcing their own rules against the state than to impose a mandatory system on the parties and states.

Posted by tokajid at July 16, 2008 10:29 AM