For the first time since the Progressive era of sixty years ago, the American political system may be at a point of significant mutation. The Progressive era gave us women's suffrage and the popular election of senators, without which the federal government would surely now seem hopelessly anachronistic; the direct primary, which has become a domesticated household creature; and also the initiative, the referendum, and the recall, which have survived here and there, but for the most part wildly, in a state of nature, owing to lack of regular contact with humans. These reforms answered essentially to the populist idea—identified in the American political tradition with Andrew Jackson and in some measure with everyone else ever since—that the ills of society and its government will be cured by giving a stronger and more certain direction of affairs to a popular majority. Today, as earlier, this idea remains the battle cry of reform. It alone inspired the Supreme Court's reapportionment decisions from 1962 onward, which may be viewed either as having inaugurated the current age of political reform or as a reflection of it; and it alone is the overt inspiration of proposals, for which the performance of the system this season has generated much support, to abolish the electoral college and the Presidential nominating conventions.
Confidence in the majority crosses class and ideological lines; nearly everyone believes that if the majority were but allowed to speak often and loudly enough, it would speak with his own voice. Even for those who would try to control the processes by which a majority is formed, and who would restrain and educate the majority before yielding to its wishes, the democratic faith is, finally, faith in the good will and good sense of the preponderant number of men. Nevertheless the populist principle in its unqualified state is simplistic and insufficient. Over time, it begets a dialectic of illusion and disillusion. Its sanguine slogans sound hollow and become terms of derision with extraordinary rapidity. “The Old Order Changeth,” wrote William Allen White in 1910. In 1920, he said to Ray Stannard Baker: “What a God-damned world this is. . . . If anyone had told me ten years ago that our country would be what it is today . . . I should have questioned his reason.”
The proclamation of a New Politics will also be recalled in irony later if it is given nothing but a populist content now. It is nice to think that there is an immediate majority out there which necessarily favors great good works, and which consists of persons each moving in an individual orbit, adrift from parties and other structures, and yet capable of exercising power if only every man had one vote. But the body politic is not like that. Majorities do not arise spontaneously and are not found; they must be constructed and then maintained. They are conglomerates of many groups, all of them minorities, each of which must have its share of power, some of which weigh in with intensity of feeling rather than numbers, and some of which must sometimes even be granted a veto, in order that there may be peaceable government enjoying common consent. If this is the Old Politics, it is the part which is a permanent necessity.
Unqualified populists or not, political reformers must in any case proceed with caution. James I spoke of the mystery of the King's power. The institutions of a secular, democratic government do not generally advertise themselves as mysteries. Yet they are. Their actual operation must be assessed, often in sheer wonder, before they are tinkered with, lest great expectations be not only defeated, but mocked by the achievement of their very antithesis. Defeat and mockery, to assert briefly what is common knowledge, were the partial result of the direct primary, and certainly of the referendum, the initiative, and the recall, which turned into tools of minority pressure; and defeated expectations and unwanted consequences, to assert briefly what will in time also be common knowledge, have followed from the Supreme Court's reapportionment decisions.1
There are great virtues in a conservative attitude toward the structural features of government. The sudden abandonment of institutions is an act that reverberates in ways no one can predict, and many come to regret. There may be a time when societies can digest radical structural change: when they are young and pliant, relatively small, containable, and readily understandable; when men can watch the scenery shift without losing their sense of direction. We are not such a society. We are well served by an attachment to institutions that are often the products more of accident than of design, or that no longer answer to their original purposes and plans, but that offer us the comfort of continuity, and challenge our resilience and inventiveness in bending old arrangements to present purposes with no outward change. The English know this secret, and so does the common law that we inherited from them. We have, of course, many institutions and arrangements that, as they function, no longer conform to the original scheme, and we have bent most of them quite effectively to the purposes of our present society, which in all respects differs enormously from the society of nearly two hundred years ago. The Supreme Court is one such institution, and the Presidency itself is another. The fact that we have used them without modifying their structures has lent stability to our society and has built strength and confidence in our people.
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The Electoral College
The “Humpty-Dumpty electoral college,” as one of its critics has called it, is another old institution put to interesting new uses. Now the chief target of reformers, the electoral college was unquestionably invented to serve ends most of which we no longer care to serve, and most of which it no longer serves. Only in form does it remain what it was invented to be. Pursuant to Article II of the Constitution and the Twelfth Amendment, it still consists of as many electors from each state as the state has senators and representatives, and it still convenes quadrennially to elect a President and a Vice President of the United States. But although it was probably intended and clearly not forbidden to act independently, it has hardly ever done so, certainly not in modern times. Electors compete for the office in a popular election, but with very infrequent exceptions, which have never proved significant, they do so in complete anonymity; electors are pledged to Presidential and Vice-Presidential candidates for whom, if they win by a majority or plurality, they cast their state's electoral vote.
These features of the system, unforeseen and unintended by its originators and sanctioned by custom rather than by the Constitution, have in modern times made the large, populous, heterogeneous states—where bloc voting, as by ethnic or racial minorities or other interest groups, often determines the result—the decisive influence in Presidential elections. Recently, Mr. John F. Banzhaf, III has analyzed the various possible arrangements of electoral votes, and the circumstances in which any given state could change the result of an election.2 He has also calculated the chances of a voter affecting the outcome in his state, and the chances that the outcome of a national election would then itself be altered. His conclusion is that voters in “states like New York and California have over two and one-half times as much chance to affect the election of the President as residents of some of the smaller states.” Pennsylvania, Ohio, Michigan, Illinois, and even the lesser industrial states, are also in advantageous positions. The reason is that while a voter in a large state has less chance of influencing the result in his state (because there are, of course, more people voting) he potentially influences a larger number of electoral votes; and so, despite the apparent dilution of his vote, he actually exercises much greater control over the outcome of the national election. This power he derives directly from the electoral college system.3
What we have known to be true, then, is true. We can now establish mathematically why modern Presidents have been particularly sensitive to urban and minority interests—modern Presidents of both parties, that is to say, have been more responsive to urban interests than have other factions in their parties. And only men who can be thus responsive are generally nominated and elected. Goldwater in 1964 is something of an exception; he was nominated. Mr. Nixon in 1968 was no exception. If he made some unfamiliar sounds, that was because of the particular urban mood of the day.
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In modern times and in most of our politics, urban interests in the big states have contended against interests that have a more rural, nativist, and Protestant orientation. The latter interests have tended to dominate Congress, the former the Presidency. Urban-rural, pluralist-homogeneous—this has been the great divide in American politics. The task of the Presidential candidate, Republican or Democratic, is to bridge it from either side. The electoral college does not guarantee the Presidency to the Democrats. Rather the system requires both parties at least to make inroads into the urban and ethnic vote in order to win. Mr. Nixon in 1968 barely did, and he barely won. But then it was a three-way race, and some of the Wallace urban vote is to be credited to Nixon, either directly or as a subtraction from Humphrey strength. In any case, the industrial states were, as ever, the decisive battleground. The big states would matter in any scheme that took account of the popular vote in whatever fashion, directly or with qualifications. But the electoral college as it has evolved is so rigged that the big states count disproportionately. That is its critical attribute.
Each of our major parties is, in consequence, as James M. Burns has recently reminded us, two allied parties—a Congressional party, rural and small-town moderate to conservative in orientation, and a Presidential party, which is substantially more urban-liberal. (How often has it been true that the Republicans have lost Congress to the Democrats, and the urban liberals have lost the Democrats to Congress!) No doubt, the urban electorate is not always progressive, humane, and large-minded, and the more homogeneous rural and small town electorate sometimes is. The drift of attitudes among big city voters is nothing to be proud of just now, nor was it in the early 1950's. On the other hand, the Progressive movement of a half-century ago had deep roots in the rural West and Midwest. Still, the urban and the rural-small town outlooks and interests do generally differ. So long as that remains true, the former should properly exert particular influence through the Presidency because the latter are likely to prevail in Congress.
The difference in interest and outlook may not always obtain. The demography of the United States and its politics will not necessarily abide unaltered, world without end. The country, we are told, is increasingly urban, and TV and the other “media” are, God help us, levelling cultural and other distinctions. But urban is a term that can cover many ways of life; the ethnic and racial composition and the traditions and attitudes of an urbanized Nebraska or Georgia are still not those of New York, Chicago, or Cleveland. If there are major changes in the offing, they are not here yet, and their nature is not readily predicted.
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The proposal to abolish the electoral college that is now being actively considered emanated from a special committee set up by the American Bar Association, and it has a very great deal of bipartisan Congressional support. It has even spawned a thoroughly documented and well-argued book.4 The proposal calls for a constitutional amendment providing for election of Presidents and Vice Presidents by nationwide popular vote, with a run-off in the event that no candidate attains a plurality of 40 per cent. Such a system would put a premium, not on carrying the big industrial states, but on achieving the largest possible majority in the smaller, more homogeneous ones. It would create a Presidency with little or no incentive to act as a counterweight to Congress, and as a particular spokesman for urban and minority groups.
Recognizing that the proposal would most likely achieve this result, advocates of the direct popular election contend that no counterweight is needed, or is any longer proper, in view of the Supreme Court's reapportionment decisions. It was fitting—so the argument goes—for the President to be oriented toward the cities and minority groups so long as Congress looked the other way, but Congress looked the other way because of malapportionment, and malapportionment is no more. Hence the reasons, such as they were, for tolerating the undemocratic aberration of the electoral college no longer hold. It is time for the system to be ideologically pure. The Court has said that the Constitution commands equal apportionment. We should, therefore, reapportion the Presidency. In effect, we must now amend the Constitution to make it mean what the Supreme Court has said it means.
This is, in itself, an arresting argument. But its paradoxical nature is not the main thing wrong with it. What is fundamentally wrong is that it fails to take account of a whole order of very different considerations. A system of countervailing centers of power may be better for a country as large and still as diverse as ours than one in which Congress and the President represent more nearly the same constituency. Under the present system we are able to strike a nice balance in our government, and make it an instrument for achieving general consent, rather than merely for working the will of some supposed majority of the moment; therefore, instead of changing the Constitution to make it conform to the Supreme Court's reapportionment decisions, we ought perhaps to work to overturn those decisions.
Even if one accepts the reapportionment decisions and their exclusively majoritarian bias, however, the trouble is that the proponents of the direct popular election wildly overestimate the immediate impact and durability of these decisions. It is, to begin with, impossible without additional constitutional amendment to reapportion the House entirely: state lines prevent. Secondly, it is foolhardy to bank on the permanence of the reapportionment decisions, just exactly as we now know them: they are subject to relitigation every decade, with every census. Third, gerrymanders, which the Court has not yet attempted to control, can accomplish all that the most sophisticated or antiquated malapportionment ever achieved. But fourth and most important, we do not know that Congress is what it is because of malapportionment. It is quite probable that in much larger measure the nature of Congress is determined by its internal methods of distributing power—chiefly the seniority and committee systems. These are very solidly entrenched. They reward length of service and expertise, as in one fashion or another all legislatures, really all permanent institutions, must. Long tenure is, in turn, most often the gift of a homogeneous district, which will tend also to liberate a Congressman from the varied concerns of a closely-divided and diverse constituency, and thus enable him to specialize singlemindedly in a branch of legislative business. Congress, finally, may be what it is because any districted constituency will vote for a Congressman from a more restricted and probably more conservative perspective than when it votes as part of the entire national constituency in Presidential elections. Herein may lie the explanation of a certain divergence between the Senate, atrociously malapportioned and proof against reform even by constitutional amendment but elected by statewide voters, and the districted House of Representatives. All this means that in any circumstances the President is fairly bound to represent a constituency that is not the same as that of the House, but it means more plainly that Congress cannot be radically changed by reapportionment, and that the system should emphasize and preserve rather than seek to suppress the different orientation of the Presidency.
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There is yet another, quite discrete objection to the proposal for direct popular election, which would be sufficient in itself. This is that the monopoly of power enjoyed by the two major parties would not likely survive the demise of the electoral college. Now the dominance of two major parties enables us to achieve a politics of coalition and accommodation rather than of ideological and charismatic fragmentation, governments that are moderate, and a regime that is stable. Without forgetting that of all the mysteries of government the twoparty system is perhaps the deepest, one can safely assert that each major party exerts centripetal force; that it ties to itself the ambitions and interests of men who compete for power, discouraging individual forays and hence the sharply-defined ideological or emotional stance; that it makes, indeed, for a climate inhospitable to demagogues; and that it provides by its very continuous existence a measure of guidance to the marginally interested voter who is eminently capable of casting his ballot by more irrelevant criteria. The system, in sum, does not altogether take mind out of politics, but it does tend to insure that there are few irreconcilable losers, and that the winners can govern, even though—or perhaps because—there are equally few total victories. Multi-party systems also govern by compromise and coalition; they compromise and coalesce, however, not before the election, but after, having first offered the voter his choice among pure positions. Self-contained ideologies thus take root, and become hard-edged. Accommodation is more difficult, partial, grudging, short-lived, and often impossible. Such a system makes for more mind, perhaps, and certainly less government.
The electoral college deters challenges to the two major parties, because an effective challenge must have not merely some popular appeal, but support of sufficient regional concentration to garner an electoral vote. In 1912, William H. Taft, the real third-party candidate in the extraordinary circumstances of that year, had 23.2 per cent of the popular vote and 8 electoral votes, and in 1924 Robert M. LaFollette had 16.6 per cent and 13 electoral votes. Only from a regional base can a third party penetrate the electoral college. Thus in 1948 Strom Thurmond had such a base, and Henry Wallace did not. Each got 2.4 per cent of the popular vote, but Thurmond had 39 electoral votes, 31 more than Taft in 1912, and Wallace had none. George Wallace this year also ran on about the only issue which still massively unites a region—hence his 45 electoral votes. Otherwise, his 13 per cent of the popular vote would have been as meaningless as Taft's or LaFollette's.
With popular election, non-regional interests that have failed to influence conventions would unquestionably be tempted to enter the general election in the hope of gathering enough votes to bargain with in a run-off. And enough entrants may be foreseen to insure a run-off every time. In such conditions the two major parties could not long sustain themselves. A geographically-based candidacy such as that of George Wallace would have no less incentive to manifest itself under a system of popular election than it does now. All other possible separate candidacies, ideological but not regional, would have more. Thus we would see on a national scale the kind of unstructured politics that characterized much of the single-party South in its heyday. The real election was the Democratic primary, which would draw several candidates, who then sorted themselves out between the first vote and the run-off. Two or four years thence, everything started afresh.5
Apart from a theoretical attachment to pure majoritarianism, proponents of the direct popular election of the President rely also on a parade of possible horrible consequences of the present system. Both the electoral college and the direct popular election can produce plurality Presidents, like Nixon in 1968, who come in ahead of their opponents by less than a clear majority of the total popular vote. The electoral college, however, can also bring a minority President into office—that is, one who got fewer popular votes than his runner-up. Yet putting aside an esoteric dispute in 1960 about how to apportion the popular vote in Alabama, there has not been a minority President in this century; and in an election that was not stolen, as in 1876, or thrown into the House, as in 1824, we have had only one such President in our history. But it made little difference that Grover Cleveland lost in 1888 to Benjamin Harrison even though he had 100,000 more votes; he won four years earlier, when he did become President, by only 23,000. It would have made equally little difference if, without affecting the actual result in the electoral college, Mr. Nixon had nosed out John F. Kennedy in 1960 by 100,000 votes, or Mr. Humphrey had prevailed by a small margin in 1968. When some 70 million votes divide so closely, only an immensely dogmatic majoritarianism would insist that the so-called winner has the sole legitimate claim to office. In truth, there is a stand-off, and the question is merely of a convenient device—any convenient device previously agreed upon—for letting one of two men govern.
Unquestionably, the legitimacy of the electoral college result and the effective discharge of the office would be affected should the loser of the popular vote by a substantial margin win the Presidency. But of this, as past statistics consistently show, the risk is minuscule, and it is offset by the advantages of the electoral college in the more likely case of a close popular vote. For in the electoral college, a narrow popular victory is perceived through a magnifying glass. Indeed, even if it should put a narrow loser in office, the electoral college would probably insure greater acceptance for him than the winner by a very small margin could expect in a system of direct popular election.
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Beside electing a minority President, which it is not apt to do, the electoral college is capable of two other tricks, both of which George Wallace has badly frightened people with. Since the Constitution permits the college to act as an independent, deliberative body, individual electors may take it into their heads to behave accordingly, and should no one have a majority of electoral college votes, some uncommitted or third-party electors could certainly play a decisive role. Obviously they should not, since they are obscure men who were not elected to perform a deliberative function. This is an eventuality that should be guarded against, but it calls for perfecting the present system, not for abandoning it. The Johnson administration has proposed a constitutional amendment which would abolish the electors and their college as a physical entity, and would automatically award the total electoral college vote of each state, calculated as at present, to the winner of a majority or plurality of the popular vote in that state.
A difficulty of rather another sort, and one not so easily solved, is the deadlock. The Constitution now provides that should no one succeed in obtaining a majority in the electoral college, the House of Representatives shall elect a President; each state shall have one vote, to be cast in accordance with the wishes of a majority of that state's delegation in the House. One may think it unlikely that patriotic men, committed in virtually every other aspect of their activities to majoritarian principles, would do today what was done in 1824, and vote into office not the winner of the popular vote by a substantial plurality (Andrew Jackson), but his runner-up (John Quincy Adams). Nevertheless, the possibility of intolerable abuse exists, and there is no reason not to guard against it. One suggestion, put forward by Representative Jonathan Bingham of New York, is to have a run-off election still within the electoral college system—that is, a repetition of the previous exercise, but this time between the two top candidates. This has some of the disadvantages of the popular election proposal with its run-off, since it might also tend to make splinter candidacies more profitable and hence more likely. Another possibility, favored by the Johnson administration, is to recognize frankly that in the event of a deadlock a choice is required through a deliberative process, rather than through a process—which by hypothesis has just failed—of registering the popular wish. I shall touch presently in some detail on the coalition-making that precedes the general election in the present system. Deadlock means that it has failed and must be tried again. Coalition-making is a function for representative, deliberative institutions. Congress sitting in joint session and reaching decisions by a majority of the individual votes of its members is the best available deliberative institution for this purpose, and Congress is the institution the Johnson administration proposal would use.
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The National Party Convention
Originally, presidential candidates were nominated by Congressional caucuses, but by 1824 this system had come to seem insufficiently representative and was replaced by the national party convention, beginning in 1832. Now that system, too, has come to seem insufficiently representative, and also inadequately deliberative. More and more, as the increasing incidence of first-ballot nominations plainly suggests, it merely registers the previously-expressed wishes of a constituency. What that constituency is, however, whether it is in any sense the masses of party adherents, or merely the professional party cadre, is gravely in question. And so the majoritarian reformers would substitute a national primary election for the convention.
A national primary would undoubtedly attract numerous candidates, and its decisive stage would be the run-off. Consequently, as Nelson Polsby and Aaron Wildavsky have written,6 “the United States might have to restrict its Presidential candidates to wealthy athletes. No man without enormous financial resources could ever raise the millions required for the nominating petition, the first primary, the run-off primary, and the national election; and no one who was not superbly conditioned could survive the pace of all these campaigns.” Polsby and Wildavsky argue also that a national primary would badly strain the two-party system, because in periods of the dominance of one of the parties, which of course occur, voters would be drawn to that party's primary, viewing it as their only real opportunity to participate decisively in the entire electoral process, and they would be drawn in such unnaturally large numbers as to threaten the other party with atrophy.
In any event, a national primary would not avoid the coalition-building function, which must be discharged, whether before or after the general election. The consequence would be merely that this function would be de-institutionalized. Between the first primary and the run-off, men would come together, without structure and without form, and sort out their support for one of the two candidates who had emerged in the leading positions. This would be the time and this would be the fashion of the coalition-forming process in each party, and, ultimately, if Polsby and Wildavsky are right, in one party alone, as—again—in the once solid South.
Of course, if Polsby and Wildavsky are right, the general election would be a formality of little moment, and we would have the least desirable of all systems of direct popular election, one that provides for no prior nominating process of any sort. It would amount to a multi-party system, in which the bargaining that is essential for constituting a government is postponed until after the election. The disadvantages that would follow have been mentioned. They are enormous. But even assuming that Polsby and Wildavsky are too pessimistic, that the two parties would survive, and that the work of making a coalition would proceed in each party between the first primary and the run-off, the upshot would be a coalition-forming procedure scarcely more responsive to an appropriate constituency than the most irresponsible convention we are likely to witness. The two top contenders would have been chosen by popular pluralities, to be sure, though their vote would likely be of the order of 20 to 25 per cent, and whatever choice between them the rest of the candidates and their managers made would require ratification in the run-off, just as convention choices are up for ratification in the election now; but subject to this constraint, which operates equally on the conventions, the candidates and the managers would make their decision in some back room, at least as free of any other constraint as the convention bosses who picked Harding in 1920. This is scarcely what the proponents of the national primary intend, yet it is what they would get—at best.
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To reject the national primary is not to concede, however, that the national party convention as we now know it is acceptable. No American political institution is more visible than the convention, and none is less visibly constituted and run. An examination of the 1968 Democratic Convention, for example, reveals some rather remarkable practices, which are common, with an occasional variation, in the Republican party as well. There are states where all or part of the delegation to the national convention is appointed by the governor or state chair-man (e.g., Georgia, Louisiana), or by the state executive committee (e.g., New York), which may last have been elected two or four years earlier (e.g., Pennsylvania, Maryland), or by a state convention whose members, in turn, are appointed by local party functionaries (e.g., Michigan, Illinois).
The Democratic Convention was studied in the summer of 1968 by an unofficial, privately-funded Commission on the Democratic Selection of Presidential Nominees, of which Governor, now Senator, Harold E. Hughes of Iowa was chairman. (It was brought together on the initiative of a few delegates who were members of the Convention's Credentials and Rules Committees, and it made recommendations, and issued a report from which the facts about the convention that I am here able to cite are chiefly drawn.7) Over 600 delegates to the 1968 Convention, the Hughes Commission found—approximately half the number needed to win a nomination—“were selected by processes which have included no means [however indirect] of voter participation since 1966.” This is utterly unjustifiable.
A party's professional cadre should, no doubt, have a voice. The professionals are, if nothing else, a faction that deserves representation, and it is sound institutional policy to reward their services with a measure of influence. They symbolize, moreover, the continuity of the party, and play a principal role in giving it an identity. But if they lend the party its character of an “organized appetite,” as Felix Frankfurter once wrote,8 their appetite is sometimes keener for power in the organization than for organizing to secure the power of government. At any rate, no one need fear that the professionals will go unrepresented. Even in states where delegates are elected in direct primaries, the cadre knows how to maintain its foothold (as David, Goldman, and Bain have pointed out9). The problem in constructing a convention is not to assure a voice for the professionals, but to dislodge them from a controlling position.
Methods of delegate selection that do bear scrutiny, as appointment by the professional cadre will not, are election by a state convention to which representatives are chosen, in turn, either directly or through an additional stage of district conventions, at precinct caucuses open to all party members; and direct election either in a winner-take-all, at-large primary as in California, or in at-large and district primaries, with (e.g., New Hampshire), or without (e.g., New Jersey) an accompanying state-wide preferential poll, in which the people have a chance to vote for actual Presidential candidates.
It would be difficult and unwise to opt on a national basis for any one of these acceptable methods to the exclusion of the other ones. The winner-take-all state primary has its virtues. It is a trial heat, a shakedown cruise for candidates, and a preview for the public. It catches attention and generates interest. Politics is an educational endeavor before and after it is anything else, and in this endeavor the major state primary helps. The drama is heightened for all concerned by the winner-take-all feature; for the candidate with little support from the professionals, the attractiveness of the primary is enhanced, as for the public is its authenticity as a preview. And the winner-take-all primary injects into the convention's process of judgment a prediction that is more than a guess, and more reliable than a poll, of what the party faces in the general election. But the state-wide, winner-take-all primary as universal practice would avoid few of the shortcomings of a national primary. If a reasonably obvious national winner were turned up, the convention would merely register the choice. Or else, if the state primaries produced no conclusive winner, as would more often happen, the convention's task would be what it is today, but its composition would be most unsuited to a satisfactory performance of that task.
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There are, by and large, as I have been implying, two sorts of multi-member democratic institutions: the representative, deliberative assembly, and the body meant to register a single prior decision of its constituency. Congress is the typical institution of the former sort, the electoral college of the latter. Institutions charged with registering the decision of a majority of their constituency should consist of members responsive to that majority, and of no one else. (In 1796, a Federalist voter said of a member of the electoral college: “Do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson is the fittest man for President of the United States? No, I choose him to act, not to think.”) Deliberative institutions, on the other hand, should reflect as many significant factions in the total constituency as. possible. That is why all American legislatures are districted. None is elected at large, to be a creature wholly of the majority, nor does any state send to Congress an entire delegation elected on a statewide basis. It is particularly necessary to represent the minority in a deliberative assembly that, like the national party convention, sits only briefly and periodically, and has as its sole object the composition of a governing coalition. The minority must be there, quite simply in order that some portion of it may be coalesced with; or more accurately, no relevant majority exists for purposes of constituting such a deliberative assembly until the assembly's own majority-building work is done, and that work can be done only if the total or near-total constituency is present through its delegates. Thus delegations chosen in winner-take-all primaries, speaking for a majority and perhaps a plurality of a state party, are welcome as one element in the mix of the convention, not as the universal element.
Delegations selected in district primaries are likely, subject to the accidents of geography, to represent minorities as well as majorities in a state party, and so are delegations chosen at state conventions whose members were elected at open precinct caucuses—but this last will be so only if one highly important condition has been met. At many precinct caucuses, district conventions, and then state conventions, the unit rule prevails, so that at each stage minorities may be left unrepresented. This is, to be sure, not the practice everywhere, but the Hughes Commission confirmed some of Senator McCarthy's complaints that it was the practice used to his disadvantage by the Democratic party in some states; and used here and there, one may add, by the McCarthy people themselves, when they had the chance. Hence, while accepting the value of the winner-take-all primary in a few states, the Hughes Commission recommended absolute abolition of the unit rule at all levels; it also recommended abolition of any system of “direct appointment” of delegations, in whole or in part, by state party executives or other officials, and the selection of delegates by procedures that “permit meaningful popular participation” within a period of not more than “six months before the Convention itself.”
Somewhat to everyone else's surprise, and perhaps also to its own, the 1968 Democratic Convention adopted the following resolution offered by a minority of its Rules Committee:
It is understood that a state Democratic Party, in selecting and certifying delegates to the National Convention, thereby undertakes to assure that such delegates have been selected through a process in which all Democratic voters have had full and timely opportunity to participate. In determining whether a state party has complied with this mandate, the convention shall require that:
- The unit rule not be used in any stage of the delegate selection process; and
- All feasible efforts have been made to assure that delegates are selected through party primary, convention, or committee procedures open to public participation within the calendar year of the National Convention.
This is almost the whole of the Hughes Commission recommendation. In addition, as the Hughes Commission also suggested, the chairman of the Democratic National Committee was instructed to set up a special committee charged with helping the states implement these policies.
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The millennium is not yet here. The language of the resolution is in some respects fairly specific—and means that most professional appointment and minority-exclusion practices (in non-primary states) are out. But appointment of some delegates, or in New York, by a state committee itself elected in the year of the convention, remains possible. Even where it is specific and entirely satisfactory, moreover, the policy must be implemented, and there are portions of it which call for further legislative efforts prior to implementation. One surmises from prior experience, unfortunately, that a certain gradualism is likely to characterize implementation of this new policy.
In the course of implementation, a difficult problem is bound to surface, concerning access to the party and adherence to it, or if you will, concerning the definition of the party. One aspect of this problem emerged in the loyalty-oath controversies that have bedeviled the Democratic party for a generation. The American major party is a coalition formed every four years from a center of gravity that is apt to shift every so often. The stable factor is that the center of gravity of the Republicans is generally somewhere to the Right of the Democratic one, and at any rate, always somewhat different. But each party reaches out every four years, the one usually to the Left, the other usually to the Right, and both toward the center of the continuum of public opinion and private interest, in the effort to create as large a governing majority as its centripetal force can command. Therefore, although each has a professional cadre, and although each exerts its centripetal force from a different point on the spectrum of opinion and interest, each is also something of a new coalition every quadrennium. The implications for the loyalty-oath issue, which the Democrats ultimately accepted, are that it is hardly consistent to require any group, as a condition for coming to the convention and engaging in the coalition-making process, to promise beforehand to abide by the result, even though, as may happen, it is affirmatively excluded from the coalition. The convention is the occasion of forming the party for a particular election, and no one can say with detailed assurance beforehand what kind of a party it will be. Hence, although the issue was fudged somewhat in the patchwork compromise about the Georgia delegation at the 1968 Democratic Convention, the Democrats require only that delegates promise to use their influence to see to it that the nominees of the convention are listed as Democratic nominees on the ballot in their states, not that they promise necessarily to support the nominees.
The implications for procedures of delegate-selection should be similar. It ought not to be necessary, as it is in many states, to have been a registered Democrat or Republican at some prior time in order to participate in a Democratic or Republican primary, or in party caucuses. The party ought each year to be open to all those groups which in that year wish to enter into the process of forming the coalition that will be the Democratic or Republican party. If the parties were as open as they should be, large numbers of people who had voted Democratic in the past might in 1968 have moved to form in the Republican party a coalition around Rockefeller, or Charles Percy, or John Lindsay—candidates oriented more to the Right in some respects than would normally suit them, but more satisfactory than what they foresaw as the probable Democratic nominee. Or anti-Vietnam Republicans might have helped put together in the Democratic party an alliance turning on the war issue, under such a candidate as Eugene McCarthy. But the truly open party would encounter difficulties, more serious in primaries than in local caucuses and conventions, and more serious in precinct caucuses than in state, let alone national, conventions, with their larger membership, more demanding activities, and greater exposure.
The trouble is that each party is periodically a new coalition, all right, but each is also, and ought to be, an organism with a continuous existence, particular characteristics, and a corps of permanently loyal supporters. And the two parties must compete, else there will soon be one, and then many, whether in the guise of parties or factions. What can happen when the permanent loyalists are free to float is exemplified in the few states that do allow cross-over of voters, or that might allow, as California did until just recently, cross-filing by candidates. The upshot in California in primaries for state office was the nomination, not infrequently, of the same man in both primaries. This destroyed party competition rather effectively. Nor is competition apt to flourish when there is a cross-over of voters intent on selecting the candidate most desirable from the other party's point of view, the weakest candidate, easiest to beat. The cross-over voter may also be happy with the probable (or certain, if there is no contest) outcome in his own party, and go into the other primary in search of, as nearly as possible, the same result. This is not coalition-building, but coalition duplicating. It is too nearly the same as the joint nomination of a single man through cross-filing. The two parties would not discharge their function if they did not overlap, or if they assumed polar positions, but though the ground on which they maneuver for differentiation is narrow, they must remain distinct in order to remain two. Party caucuses open to everyone are also subject to being captured by forces wishing to short-circuit party competition.
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Nothing in the resolution adopted at the 1968 Democratic Convention suggests a way out of this dilemma. The special committee to be established by the Democratic National Committee will need to grapple with it on its own. In the Republican party, any approach to a solution of this problem, as to other reforms, is even more remote. The Democratic committee will probably be inclined at first to go along with restrictive practices, which grant access to the party only to those who have in the past indicated adherence to it, or at least not registered as members of the other party. That would be understandable, but wrong. The open party, with its risks, is the prime objective. For party habits are strong, and Machiavellian cross-overs, while they occur, are rare. What is more common, and should be encouraged, is unaffiliated floating by voters who, if excluded at the nominating stage, are likely to be disaffected by the limitations of choice in the general election.
Each party should, accordingly, be open in each election year, in primaries and caucuses, to everyone willing at the time to register as a member. The registration would be largely symbolic and would not necessarily exclude cross-overs, if for no other reason than that it would be as impossible as it would be ill-advised to try to bind individuals to vote the party ticket in the general election. But the symbolism would be endowed with some consequences. Certainly it should be stipulated that a voter may participate in the nominating process of only one major party in any given year.
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Minor Parties
The survival of the convention and of the two-party system it sustains is not a unanimously shared objective, particularly in this season. Its virtues father than its imperfections gain for the two-party system its most implacable enemies. The moderate coalition, the sensible accommodation, the muted ideology, the politicians who strive to borrow each other's protective coloration and who jostle one another in the center—all this, the price of broadly-based government, of general acquiescence and of stability, is paid in frustration. The choice in the general election between two candidates either of whom can satisfy most people, or at least radically dissatisfy very few, always leaves some of us with no choice at all. Hence the minor party, a steady obbligato in our political symphony. It is sometimes a regional, and commonly an ideological, interest group, which has not been accommodated because it wants something too precise, too clear-cut, because it wants it on principle now and not later, wants all of it, wants it intensely, of course, and wants it when someone who is otherwise in a better position to bargain wants the very opposite with equal intensity.
The minor party is also a group which has summoned the courage to bring prematurely to the fore a basic issue, perhaps a moral one, that the country must face, and in time will face. The word “prematurely” is used here from the point of view of the major parties, the defect of whose virtues is that they are liable to be sluggish in addressing newly arisen fundamental issues, moral ones especially. They are too intent on power to take the risk before they have to. Again and again, minor parties have led from a flank, while the major parties still followed opinion down the middle. In time, the middle has moved, and one of the major parties or both occupy the ground reconnoitered by the minor party; or to change the figure, the major parties, as Disraeli said of Peel and the Whigs, at last catch the minor parties bathing and walk away with their clothes. So it was with the anti-slavery Free Soilers, with the Populists in 1892, with the LaFollette Progressives and even the earlier Eugene V. Debs Socialists—and, to be sure, with the Prohibitionists, who are a useful reminder that the Anti-Masonic, Know-Nothing, Thurmond States' Rights, and George Wallace Independent parties must not go unmentioned, lest small-party romanticism run away with one. But as an outlet for frustration, as often a creative force and a sort of conscience, as an ideological governor to keep major parties from speeding off into an abyss of mindlessness, and even just as a technique for strengthening a group's bargaining position for the future, the minor party would have to be invented if it did not come into existence readily and regularly enough. It is an indispensable part of the system whose beneficent chief aim is to suppress it. And its existence is at any rate constitutionally protected.
The two-party system, as the late Justice Robert H. Jackson once said in another context, is a political practice “which has its origin in custom [and] must rely upon custom for its sanctions.”10 Therefore, even though it is up to state legislatures under Article II, Section 1 of the Constitution to prescribe the manner in which electors who will choose a President and Vice President are themselves to be chosen, an attempt by law to secure the major parties' monopoly of Presidential power would most assuredly fail. It would founder against the Equal Protection Clause of the Fourteenth Amendment, which forbids unreasonable discriminations among voters and also among candidates—which, in other words, safeguards a right to vote free from unreasonable discriminations, and also a right to be a candidate. And it would run afoul as well of the First Amendment, as incorporated into the Due Process Clause of the Fourteenth, for the First Amendment has been interpreted to guarantee a right of effective political association, and that right would be denied by any statute making it impossible to achieve the end for which political association is ultimately undertaken.
It is true that no state actually decrees in so many words that in order to be allowed to vote or run for President or for Presidential elector a person must be a member, or submit himself to the procedures, of the Democratic or Republican party. And only Ohio has come near to saying as much indirectly. Ohio allowed no independent, non-party candidacy, and a minor party could place a candidate on the ballot only if it filed a petition signed by voters equal in number to 15 per cent of the total vote cast in the last gubernatorial election—in 1968, upwards of 430,000. Additional difficulties were also put in the way. The minor party had to organize itself through primary elections on the same scale as the major ones, and persons who voted in a major party primary at the previous election were not qualified to participate in organizing the minor party. On October 15, 1968, in the first decision of its kind, the Supreme Court held the Ohio scheme unconstitutional.11 The suit was brought in behalf of George Wallace, whose name the Court ordered placed on the ballot. A federal district judge had remarked at an earlier stage of the case that the “‘wo-party system is not a cliché in Ohio, but a statutorily enforced fact.”12 It is no more.
Other states may not quite make the two-party monopoly a statutory fact, but a great many make life hard for the minor party. The requirement of signatures on a petition in a number equal to 15 per cent of the total vote at a past election, itself a grave impediment, is rare, but Arkansas imposes it also. And a number of states have distribution requirements, which also present serious obstacles. Thus in Idaho a petition must be signed by 3,000 voters, no more than 150 of whom are residents of any single county; Illinois requires 25,000 signatures, with 200 from each of at least 50 counties; and New York requires 12,000, fifty at least from each county. In Florida, where a very substantial portion of the population lives in Dade County, no more than 13.3 per cent of the total number of necessary signatures may come from any single county. Finally, a very large number of states, while they have workable provisions for getting a new ticket on the ballot, set early dates for qualification, as early as March in Pennsylvania and apparently in Alabama; April in Kentucky and West Virginia; May in Michigan and New Jersey; and June, July, and August in many more.
The legal position respecting obstacles of the kind just described is not clear. A court would be unlikely to hold that the states may not encourage the two-party system by giving a certain edge to the major parties. But it is a long way from achievement of this objective to choking off all political action that is not encompassed by the two established parties. The latter the states may not do, and the problem is to define what amounts to doing the latter. In general terms, the courts would probably agree to the proposition that laws which make it impossible for an initially small group of voters to put a candidate on the ballot through a reasonable and not prohibitively expensive effort in a reasonable amount of time are unconstitutional. A criterion such as this should work out to render unconstitutional a requirement for obtaining the signatures of anything over 5 per cent of the electorate.
Under existing analogous judicial decisions, the most vulnerable requirements are those concerning distribution. The Illinois one was upheld by the Supreme Court in 194813 but that was before the Supreme Court's more recent reapportionment decisions. Today it could be strongly argued that any distribution requirement is a form of malapportionment, a way of giving more weight to a signature in a small county than in a large one, and therefore invalid under the reapportionment cases—and, one may say in passing, invalid for better reason than malapportionment of a legislature itself.
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Early qualifying dates obviously do not in themselves present insuperable barriers. The argument against many of them would be that a state may seek to give an edge to the two established parties, and for that reason discriminate against independent candidates and persons who wish to cast their votes for them, but—administrative and housekeeping necessities to the side—it may discriminate only by means that are rationally suited to favor the two-party system. Now the important third-party movements in our history—George Wallace this year is a point-proving exception—came into being after the two major party conventions, and were enabled to come into being at that time because major party conventions used to be held much earlier than at present. In 1892, Harrison and Cleveland were nominated in June. The Populists, disappointed by the Democrats, met later and nominated a third candidate, General James B. Weaver. In 1912, Theodore Roosevelt fought his heart out in the Republican convention in June. Having been defeated, he formed the Progressive party. Again, in 1924, Coolidge and Davis were nominated in June. The third-party LaFollette candidacy took shape in July. The characteristic American third party, then, consists of a group of people who have tried to exert influence within one of the major parties, have failed, and later decide to work on the outside. States in which there is an early qualifying date tend to force such groups to forego major-party primary and other pre-nomination activity and organize separately early in an election year. For if they do not, they lose all opportunity for action as a third party later. From the point of view of fostering the two-party system this is counter-productive. It is calculated to induce early third-party movements, like the present George Wallace party; calculated to drive people away from the coalition-building process that is the genius of the two-party system, and into a premature and more likely permanent ideological separatism, which is precisely what the two-party system successfully prevents.
Major party conventions now tend to be held in August. Any qualifying date earlier than the end of September or even early in October can hardly be supported by any practical reason having to do with the printing of ballots and the like. The only purpose of earlier qualifying dates, therefore, can be to encourage two-party action and discourage third parties. This is, to a degree, a valid purpose, but to force people to commit themselves to third-party action without trying first to influence the major parties is no way to enhance the two-party system.
It is, of course, not possible to predict just what the courts would do in detail on questions of this kind,14 but since state election statutes are shot through not only with anti-third party provisions that are wrong on principle, but also with many which positively disserve the objective of protecting the two-party system, wholesale legislative reform is called for, regardless of what the courts may do.
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The country, Walter Lippmann wrote in September 1968, “has entered a period of revolutionary change of which no one can foresee the course or the end or the consequences.” For, he continued, “the central institutions of the traditional life of man”—the family, the church, the territorial state, the schools, and the universities—“are increasingly unable to command his allegiance and his obedience.” Naturally, Mr. Lippmann's diagnosis was that the old two-party system is shattered. This also is the conclusion of many who speak from positions rather radically to the Left of Mr. Lippmann's. For myself, I cannot deny it, but my instinct is to disbelieve it. I thought that such a figure as Robert Kennedy would have been capable even this year, let alone four years hence, of restoring a sufficiency of order to what Mr. Lippmann, quoting Erasmus, calls the “irremediable confusion of everything.” Men want change, and they turn away, or to George Wallace, because the major parties are sluggish, but they do not turn in either direction inevitably or irremediably; many of those same people turned earlier to Robert Kennedy, and many even to Eugene McCarthy.
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This is not the place to speculate on whether the United States deserves a revolution, needs one, or will get one regardless. But short of a revolution, the work of politics in the United States, and the work of politics even for those who set radical social goals, is most effectively and enduringly done within the regime, not in opposition to it as such; within the system whose improvement I advocate, but which I praise. And even if the old two-party system, as Mr. Lippmann says, is shattered without knowing it, and destined to come down, it is hardly arguable that for that reason it should hasten to bring itself down with such innovations of at best unpredictable and at worst baneful effect as the direct popular election of Presidents and the national primary. Nor is there any reason why it should not reform its electoral college, its conventions, and its election laws in ways consistent with its nature and designed to advance its values. After all, the system may yet belie the jeremiads and disappoint the revolutionaries. It may persist in the mystery of survival, and against that event, it might as well improve itself.
1 See Robert G. Dixon, Jr., Democratic Representation: Reapportionment in Law and Politics, pp. 17-18, 21-22 574-581.
2 J. F. Banzhaf, III, “One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College,” Villanova Law Review, Winter 1968, pp. 303-346.
3 J. F. Banzhaf, III, “One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College,” Villanova Law Review, Winter 1968, pp. 303-346.
4 Neal R. Peirce, The People's President, Simon and Schuster, 400 pp., $8.95.
5 See V. O. Key, Jr., Southern Politics, pp. 406-23.
6 Nelson W. Polsby and Aaron B. Wildavsky, Presidential Elections, pp. 229 et seq.
7 In addition to Senator Hughes, the Commission consisted of Representative Donald M. Fraser of Minnesota, who served as vice-chairman, Harry Ashmore, Julian Bond, Frederick G. Dutton, Mrs. Doris Fleeson Kimball, and the present writer. Its staff was headed by Thomas P. Alder as director, Geoffrey Cowan as associate director, and Simon Lazarus as editor. The Commission's report is entitled The Democratic Choice. See also Paul T. David, Ralph M. Goldman, and Richard C. Bain, The Politics of National Party Conventions (The Brookings Institution), pp. 249 et seq.
8 Law and Politics, p. 316.
9 The Politics of National Party Conventions, p. 243.
10 Ray v. Blair, 343 U.S. 214, 233 (1952), (Jackson, J., dissenting).
11 Williams v. Rhodes, Supreme Court of the United States, October 15, 1968.
12 Williams v. Rhodes, Civil Action Nos. 68-248, United States District Court for the Southern District of Ohio, Eastern Division, August 29, 1968 (Kinneary, J., dissenting).
13 MacDougall v. Green, 335 U.S. 281 (1948); see also Moore v. Shapiro, Civil Action No. 68C1569, United States District Court for the Northern District of Illinois, Eastern Division, October 3, 1968.
14 See Hadnott v. Amos, Civil Action No. 2757-N, United States District Court for the Middle District of Alabama, Northern Division, October 11, 1968, an adverse initial decision summarily reversed by the Supreme Court on October 19, 1968.
