Notes on the Modern Presidential Game

Issues to consider while reading:

1. McCormick, in the Epilogue, notes numerous changes in the rules between 1844 and 1968, at least, concerning who can vote, the timing of elections and terms of office, and the parties' selection of nominees.

2. Following are some themes and issues you should look for as you read McCormick's Epilogue and the various assigned readings about the present-day rules of electoral competition.

3. Compare modern gerrymandering with state efforts, prior to the 1830s, to select advantageous (partisan) methods for selecting presidential Electors. Did the Framers anticipate such strategies? Do later circumstances make them any more or any less harmful to constitutional legitimacy or other political values?

4. To what extent can seats-votes disproportionality in the U.S. House or in state legislatures be blamed on partisan gerrymandering?

5. How does the problem of campaign finance strengthen or weaken parties in the presidential election process?

6. In a democratic system, what should be the role of party leaders in the presidential nomination process?


Additional notes

The Party Game

Presidential candidates are nominated in national conventions by two major political parties, which enuncuate policy goals. Active campaigning ensues -- even, indirectly, by the candidates themselves. Pledged Electors chosen by the general ticket system determine the winner. The winner's supporters enjoy government office as "spoils" of victory.

Challenges to stability of the party game after 1844

  • the ultimate challenge: sectionalism (and the slavery issue) within both parties
  • intra-party tensions over Texas annexation 1845, Mexican War 1848
  • collapse of Southern Whigs & Whig party generally 1854 --> immediate rise of Repubilcans to take their place
  • Democrats' split before 1860 election; civil war and connection between northern Dems and the South
  • Populist Party challenge, especially 1892 (won five western states)


Major changes (not strongly impacting the "game" above)

  • voting rights: 15th, 19th, 26th Amendments
  • changes in election dates and terms of office: 20th, 22nd Amendments

The electoral college (More on this next time)

  • General ticket 1868-1972
  • 1887 new laws in case of disputed electors (as happened 1876)
  • vote by House districts and 2 at-large
    • Maine, from 1972 (actually split once, 2016)
    • Nebraska, from 1992 (actually split once, 2008)

The nominating process--little change through 1968

  • 1936 Dems eliminate 2/3 rule

The nature of presidential campaigns

  • direct candidate participation
  • media
  • debates


The Presidential (and congressional) game since 1968

The McGovern-Fraser Commission Report

Advent of the presidential primary election process

  • quickly became predominant
  • committed delegates
    • superdelegates
  • the "invisible primary": lining up donors and endorsements


The nomination process today

"Rigged?" Superdelegates; the invisible primary; party leaders

  • Another relevant recent article (recommended only): Seth Masket, "Don't look now, but the DNC got powerful." Blogpost at Michiefs of Faction (Sept. 12, 2019). Click here to obtain online.


State efforts to mamipulate the process

Gerrymandering history

  • the original gerrymander
  • 1960s Court decisions
    • Colegrove v. Green (1946): not justiciable
    • Baker v. Carr (1962): enormous imbalances in state lower house violates 14th Amendment
    • Wesberry v. Sanders (1964): applied to U.S. House district imbalance
    • Reynolds v. Sims (1964): states can't apportion one house by county
    • virtually exact population equality required for U.S. House districts; near quality for state legislatures
    • Rucho v. Common Cause (2019): partisan gerrymander (NC) not justiciable
    • NC state supreme court (Sept. 2019): justiciable under NC constitution
  • project REDMAP
  • Texas 2003 mid-decade redistricting: from 15R-17D to 21R-11D
  • evidence that has come to light concerning the late gerrymandering guru Thomas Hofeller

A technological arms race in gerrymandering

Vote suppression and the battle against imaginary voter fraud

  • Aim: to use allegations of voter fraud to support new voter ID and voter de-registration laws.
    • Lack of evidence for widespread voter fraud
    • Numerous claims based on faulty matches of address etc., and on the inaccuracies of voter registration laws
    • Basis for Voter ID laws; Supreme Court approved Indiana photo ID law in Crawford v. Marion County Election Board (2008) despite the fraudulent nature of that argument.
    • Cf. Whole Woman’s Health v. Hellerstedt (2016) in which the Court rejected new state abortion clinic regulations falsely claimed to be needed for patient health.
  • a long-term, concerted, national effort
    • organizations noted in the Mayer article on von Spakovsky; his longtime effort
  • A related tactic: voter registration roll purges
    • requirement of “exact match”; reliance on postcard return
    • recently: Husted v. A. Philip Randolph Institute Supreme Court upheld Ohio voting rolls purge


Campaign finance

Early history of campaign finance laws

  • Tillman Act (1907) prohibited contributions to candidates for federal office by corporations and nationally chartered banks
  • spending disclosure requirements for House/Senate candidates, 1910-11
  • Federal Corrupt Practices Act (1925) contribution limits
  • Hatch Act (1939) limited party campaign expenditure amounts and individual campaign contribution amounts
  • Smith-Connally Act (1943), Taft-Hartley Act (1947) applied existing restrictions on corporations to unions as well.

By 1971, “largely regarded as ineffective, antiquated, or both”

CRS story begins here. First, the FECA era, 1971-1990s

By 1990s loopholes had developed

  • soft money
  • issue advertising

McCain-Feingold [Bipartisan Campaign Reform] Act (BCRA, 2002)

  • banned soft money
  • new restrictions on pre-election issue advocacy by defining “electioneering communications”
  • prohibited corps and unions from ads referring to identified candidates within 60 days of general or 30 days of primary
  • Mostly upheld in McConnell v. FEC (2003)
  • BCRA necessitated extensive and complex rulemaking by FEC.

Court cases have invalidated much of this regulatory regime:

  • FEC v. Wisconsin Right to Life (2007) disallowed prohibition of electioneering communications by issue-advocacy groups (nonprofit “social welfare” organizations under IRS 501(c)(4)).
  • Citizens United v. FEC (2010) “invalidated FECA’s prohibitions on corporate and union treasury funding of independent expenditures and electioneering communications” (5) on 1st Amendment grounds. (Left open permissibility of disclosure requirements, but all attempts have been defeated by Senate filibuster.)
  • v. FEC (2010) further ruled that “contributions to PACs that make only independent expenditures—but not contributions—could not be constitutionally limited” (6). Now called “super PACs”.
  • Led to settlement of an FEC case Carey v. FEC (2011) that PACs unaffiliated PACs (i.e. not corporate or union) could accept unlimited contributions if used for independent expenditures.
  • McCutcheon v. FEC (2014) ruled against any limits on individual total donations to all parties and candidates on 1st Amendment grounds

Next up: The Electoral College