Liberty, Prudence, Imperfection, and Law

“The Primaries Are a Mess, Thank Goodness,” By Bruce Frohnen

“Ted Cruz at Kuhner Town Hall in New Hampshire, February 3, 2016.” By Michael Vadon – Own work, CC BY-SA 4.0.

Rob Waters, a friend and colleague at Ohio Northern University, is a frequent guest analyst for an Ohio political radio program. Recently he was asked why the United States does not have a shorter, more concentrated primary system. Rob gave a straight, factual answer: each state party controls its own electoral process and there is not all that much the national parties can do about it. The host, a bright, conservative fellow, accepted the answer but clearly found it a bit puzzling.

The problem, I think, was that Rob, who is congenitally conservative, assumed the question, coming from another conservative, was meant to be factual. That is, he assumed his host was asking for an explanation of why the national party was not able to impose a uniform, national primary, or set of regional primaries, on the electorate. In fact, the host, though conservative, assumed that if “we” wanted a national primary or simply a shorter primary season “we” could and should get one. His real question was “why not make the primary season shorter?”

The host, again both bright and conservative, shared the general modern American assumption that all important issues are national and so by nature have national solutions available to them. Thank goodness this has not yet become the case in all instances, particularly where elections are concerned. Messy as it is, the current primary system retains at least some remnant of state control and with it the ability of at least some Americans to make political choices independent of their national party elites.

The political parties are not governmental entities. They are not even mentioned in the Constitution; the Framers actually hoped to avoid such factionalization, at least in the formal sense. Further, while many in Washington would like to bring the parties and elections more generally under minute federal control, there are real limits to how far this process can go—at least for now. Supreme Court decisions vindicating the right of private persons and corporate groups to spend their own money on political advertising and campaigning mean that the attempt to chain presidential candidates to national funds and restrictions has largely failed. As important, the continuing importance of a long slog of state primaries, often aggregated in frankly odd ways, keeps a local focus on presidential politics—at least for the first few months of the electoral season.

One might well argue that more should be done to de-emphasize the role of Iowa and New Hampshire in the primaries. Iowa, with its largely conservative, religious attitudes on social issues historically has skewed national politics on account of its addiction to federal ethanol subsidies. New Hampshire’s flinty, libertarian-minded natives are in the process of being swamped by liberal immigrants from Massachusetts. Neither will give up their “first in the nation” status and the national parties are unwilling to pay the price to contest the issue. Any attempt to displace either the Iowa caucuses or the New Hampshire primary would result in ever-earlier dates for these events, stretching the primary season to be much longer than it already is.

That said, it makes sense to put presidential candidates to the test of a long, grueling campaign season that demands not only the politics of mass advertising but also the hand shaking, town-hall speaking, and debating that require organizational skill, oratorical savvy, and at least the appearance of concern for normal people. It seems doubtful that the nation would be well served by electing a president who cannot function off script in a debate, who is unable to put together and keep a competent campaign staff, or who will not “press the flesh” in order to win votes. The system is far from perfect, and these skills certainly do not guarantee the intelligence, fortitude, and basic decency a nation needs in its president, but a candidate who lacks these skills would seem also to lack a basic familiarity and comfort with the spirit of a democratic people. Many of us are quite properly critical of the outsized demands of a self-satisfied people overly dependent on government largesse and of the outsized promises made to win their votes. But having such a corrupt people and political system, decentralization becomes a necessary check on at least some of its worst electoral tendencies.

This is not to say that one must be a populist (or skillful facsimile thereof) in order to become president. We have had a number of presidents who campaigned from home, using the press and their own resources to win election. But in this era of mass politics, we should consider the real options before decrying the disorganized scrum that is the primary system.

The demands of a mass electorate and an egalitarian-minded Supreme Court mean that there is no going back to older, more pragmatic processes for the selection of party nominees. For the foreseeable future—unless and until there is a major shift for the better among the electorate and their governors—a more civilized brand of politics can only be pursued by handing over power to elites long gone in selfish corruption. The only real competition for the current system is one of greater centralization and national focus.

Any national primary, or set of regional primaries, by its very nature would nationalize the election from the beginning. Those who believe that all issues are national and that it is wrong for “parochial” issues in particular states to influence the nomination process no doubt would welcome such a development. There are three principal problems with this view. First, not all issues are or should be national, though sadly in our time of massive federal power it is important for any would-be (national) president to have a position on them. Ideally, the “right” position for a candidate to take on the vast majority of issues would be “that is none of the federal government’s business.” Alas, so many Americans believe everything is the federal government’s business that, in the best-case scenario, a candidate committed to constitutionalism and limited government must make the case in particular states about particular issues that those specific concerns should be left at the state and local level. This is, in essence, the only way for a principled attachment to limited government to gain a fair hearing.

Second, the very process of widening the scope of the primaries would further aid establishment candidates dependent on building and holding a constituency in Washington, DC, rather than doing the same with a variety of constituencies, with a variety of local concerns, in diverse parts of the country. With centralized primaries there would be little if any chance for a candidate to start small and build a coalition, along with momentum, over time. There would be no small state in which to try out new strategies, hone one’s message, or work to make a connection with people on a particular set of issues. The nomination would be an all-or-nothing fight from ground zero, which by its very nature would depend on gaining the political and financial backing of already-prominent figures. Some might like the idea of a primary system that keeps out “amateurs” like Donald Trump. But such a system would keep out everyone thought to be amateurish in the sense of bucking the current power structures in the national capital.

Finally, the telescoping of primaries into one or a few massive elections would further empower big money donors (and organized, national interests in particular) at the expense of local groups currently able to have their voices heard in small towns and states in particular primaries. We often hear, these days, about the problems of “super PACs” and particular individuals with outsized capacities for buying airtime and influence. The situation would only become more extreme when the stakes are made higher and the chances of coming back from any errors dimmer. Perhaps most important, we should recognize that these big money donors are powerful for the very reason that politics have become so dependent on the policies and financial largesse coming from Washington. More decentralization, rather than less, would be the answer to many of our national problems, including the fatigue many of us feel over the course of our long primary season, with its overemphasis on a few national issues.


Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.

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