PileupBy Hendrik Hertzberg
Published April 16th 2007
Over the past few months, the constitution of the United States has been quietly amended. We’re not talking here about the written, capital-“C” Constitution, which can’t be changed on the sly, but about the constitution broadly understood: the rules and procedures by which our government is constituted. A lot of that constitution is outside the Constitution, notably when it comes to elections. The framers’ document makes no mention of parties, primaries, or nominating conventions—understandably, as they hadn’t been invented yet. Article II, Section 1, which is about “chusing the President,” has plenty to say about electors’ meeting “in their respective States,” and making “a List of all the Persons voted for,” and signing, certifying, and sealing their Lists before sending them on to “the Seat of the Government.” But it says nothing about political campaigns, political parties, or nominating conventions—let alone about sound bites, thirty-second spots, bundled contributions, or independent expenditures, any one of which has more effect on who gets chusen than all the signing, sealing, and certifying on earth. (Nor, for that matter, does Article II say anything about regular people voting. What it does say is “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” As the Supreme Court pointedly reminded us on December 12, 2000, “The individual citizen has no federal constitutional right to vote for electors for the President of the United States.” )
This year’s informal constitutional amendment is a radical revision of the political calendar. For several election cycles, states have been pushing, more or less politely, toward the front of the primary-season queue. This time, all semblance of good manners has been abandoned. We’ve stampeded ourselves over a cliff into a yearlong primary campaign climaxing next February 5th, when as many as twenty-two states, representing sixty per cent of the nation’s population and a like proportion of the two parties’ Convention delegates, will hold their primaries all at once. Eighteen of those states have moved their primaries up to that date or are on the point of doing so, including eight of the eleven biggest—California, Texas, New York, Illinois, Pennsylvania, Georgia, North Carolina, and New Jersey.
This development has two aspects, both of which have been widely deplored. One is the bunching of primaries, which magnifies the need to raise very big money very early, pretty much guarantees that dark horses will stay dark, and makes it harder for someone to enter the race late. The other is the time gap between de-facto nomination in February and de-jure election in November—as lengthy as a full-term pregnancy, and offering similar opportunities for fatigue, boredom, irritability, and nausea (in addition, of course, to ample chances for joy, kicks, and that certain glow).
But the truth is that this change—the bunching-up part, anyway—arises from an admirable citizenly impulse: the impulse to participate. Citizens, Republicans and Democrats alike, want a meaningful voice in who gets to be their party’s Presidential nominee, and they are increasingly noticing that most of them have no such voice. For all practical purposes, the primaries disenfranchise voters in “late” states and privilege voters in “early” states, while the general election disenfranchises voters in “spectator” states and privileges voters in “battleground” states. In both cases, the disenfranchised far outnumber the privileged. No wonder, then, that so many late states have decided to go early. The new calendar still confers outsize influence on the one out of sixty-eight Americans lucky enough to live in Iowa or New Hampshire, states that are not only the earliest of the earlies but also November battlegrounds. But at least it offers a good many of the rest of us a shot at casting primary ballots that might conceivably have some impact.
The purity of that motive, however, does not obviate the fact that a schedule that (a) locks up both parties’ nominations in one fell swoop and (b) requires the country to devote two out of every four years to Presidential politicking is completely insane. The closest anyone has come to cutting the Gordian knot of the primaries was a little-known effort in 2000. A group of Republican grandees led by Bill Brock, a former senator from Tennessee and national party chairman, spent months hammering out what was dubbed the Delaware Plan, which, beginning in 2004, would have mandated four sets of primaries, a month apart, beginning with the small states (twelve of them, including New Hampshire) and ending with the largest (which would pick a majority of the total delegates). Brock said recently that he had developed the plan in consultation with friends in the other party (“Such things were possible, once upon a time,” he said), and was fairly sure that the Democrats would have followed suit. But, because the Republicans couldn’t have proceeded without a floor fight at their Convention, the Bush camp, determined to avoid any hint of discord, shot the whole thing down at the last minute. Various other ideas—revolving regional primaries, for example, or randomly chosen primaries at two-week intervals—continue to float around. Eventually, though, Congress will probably have to take the lead in sorting out the mess.
The primaries, of course, are only half the story, and not the more important half. Thanks to the winner-take-all allocation of each state’s electoral votes—another of those informal constitutional amendments nowhere to be found in the parchment—the only voters who count in November are the ones in the dozen or so battleground states. It has begun to dawn on citizens of the rest of the country just how out of it they are, and it’s dawning on some of their politicians, too. Sometime in the next few weeks, Governor Martin O’Malley, of Maryland, will sign a bill making his state the first to pledge itself to the fledgling National Popular Vote plan—a proposed interstate compact that would confine the electoral college to a ceremonial role, like the Queen of England’s. The idea is that once enough states have signed on to put together a majority of electoral votes, those states agree that their electors will always vote for the winner of the popular vote in all fifty states plus the District of Columbia. From that moment, for the first time, Presidential elections would be truly national. Every citizen’s vote would be worth casting, and worth campaigning for, no matter what state it happened to be cast in. Grassroots politics would be worth the trouble everywhere, not just in a dozen swing states. No more red states and blue states, just the red-white-and-blue United States, its Constitution unchanged but its constitution made worthy of a mature democracy.
This year’s informal constitutional amendment is a radical revision of the political calendar. For several election cycles, states have been pushing, more or less politely, toward the front of the primary-season queue. This time, all semblance of good manners has been abandoned. We’ve stampeded ourselves over a cliff into a yearlong primary campaign climaxing next February 5th, when as many as twenty-two states, representing sixty per cent of the nation’s population and a like proportion of the two parties’ Convention delegates, will hold their primaries all at once. Eighteen of those states have moved their primaries up to that date or are on the point of doing so, including eight of the eleven biggest—California, Texas, New York, Illinois, Pennsylvania, Georgia, North Carolina, and New Jersey.
This development has two aspects, both of which have been widely deplored. One is the bunching of primaries, which magnifies the need to raise very big money very early, pretty much guarantees that dark horses will stay dark, and makes it harder for someone to enter the race late. The other is the time gap between de-facto nomination in February and de-jure election in November—as lengthy as a full-term pregnancy, and offering similar opportunities for fatigue, boredom, irritability, and nausea (in addition, of course, to ample chances for joy, kicks, and that certain glow).
But the truth is that this change—the bunching-up part, anyway—arises from an admirable citizenly impulse: the impulse to participate. Citizens, Republicans and Democrats alike, want a meaningful voice in who gets to be their party’s Presidential nominee, and they are increasingly noticing that most of them have no such voice. For all practical purposes, the primaries disenfranchise voters in “late” states and privilege voters in “early” states, while the general election disenfranchises voters in “spectator” states and privileges voters in “battleground” states. In both cases, the disenfranchised far outnumber the privileged. No wonder, then, that so many late states have decided to go early. The new calendar still confers outsize influence on the one out of sixty-eight Americans lucky enough to live in Iowa or New Hampshire, states that are not only the earliest of the earlies but also November battlegrounds. But at least it offers a good many of the rest of us a shot at casting primary ballots that might conceivably have some impact.
The purity of that motive, however, does not obviate the fact that a schedule that (a) locks up both parties’ nominations in one fell swoop and (b) requires the country to devote two out of every four years to Presidential politicking is completely insane. The closest anyone has come to cutting the Gordian knot of the primaries was a little-known effort in 2000. A group of Republican grandees led by Bill Brock, a former senator from Tennessee and national party chairman, spent months hammering out what was dubbed the Delaware Plan, which, beginning in 2004, would have mandated four sets of primaries, a month apart, beginning with the small states (twelve of them, including New Hampshire) and ending with the largest (which would pick a majority of the total delegates). Brock said recently that he had developed the plan in consultation with friends in the other party (“Such things were possible, once upon a time,” he said), and was fairly sure that the Democrats would have followed suit. But, because the Republicans couldn’t have proceeded without a floor fight at their Convention, the Bush camp, determined to avoid any hint of discord, shot the whole thing down at the last minute. Various other ideas—revolving regional primaries, for example, or randomly chosen primaries at two-week intervals—continue to float around. Eventually, though, Congress will probably have to take the lead in sorting out the mess.
The primaries, of course, are only half the story, and not the more important half. Thanks to the winner-take-all allocation of each state’s electoral votes—another of those informal constitutional amendments nowhere to be found in the parchment—the only voters who count in November are the ones in the dozen or so battleground states. It has begun to dawn on citizens of the rest of the country just how out of it they are, and it’s dawning on some of their politicians, too. Sometime in the next few weeks, Governor Martin O’Malley, of Maryland, will sign a bill making his state the first to pledge itself to the fledgling National Popular Vote plan—a proposed interstate compact that would confine the electoral college to a ceremonial role, like the Queen of England’s. The idea is that once enough states have signed on to put together a majority of electoral votes, those states agree that their electors will always vote for the winner of the popular vote in all fifty states plus the District of Columbia. From that moment, for the first time, Presidential elections would be truly national. Every citizen’s vote would be worth casting, and worth campaigning for, no matter what state it happened to be cast in. Grassroots politics would be worth the trouble everywhere, not just in a dozen swing states. No more red states and blue states, just the red-white-and-blue United States, its Constitution unchanged but its constitution made worthy of a mature democracy.