Democratic National Committee Senate Statement

TESIMONY OF DEMOCRATIC NATIONAL COMMITTEE
Submitted to
COMMITTEE ON RULES AND ADMINISTRATION
UNITED STATES SENATE

The Democratic National Committee (DNC) appreciates the opportunity to submit this written testimony to the Senate Committee on Rules and Administration for its consideration in connection with the hearing being held by the Committee on S. 1905, a bill to establish a regional rotating system of presidential preference primaries and caucuses. In summary, as explained below, the rules established by the DNC governing the timing of presidential preference primaries and caucuses in 2008 resulted from more than an 18-month long period of work first by a party commission headed by former U.S. Secretary of Labor Alexis M. Herman and U.S. Rep. David E. Price (D-N.C.) and later by examination by the full DNC. Ultimately, those rules were adopted with the near-unanimous approval of the full DNC and the DNC’s Rules and Bylaws Committee is committed to enforcing them. At this time, with the exception of only one state, the DNC has been successful in maintaining the calendar established by its rules.

Among its recommendations, the Commission on Presidential Nomination Timing and Scheduling (herein referred to as the “Price-Herman Commission”) also concluded that the entire presidential caucus and primary season occurs too early and urged DNC Chairman Governor Howard Dean to begin discussions with the Republican National Committee (RNC) about a bipartisan approach to a calendar that would achieve fairness and full participation, and would start the process later in the election year. The DNC has taken steps to begin those type of discussions, but at this time, the DNC and RNC have not yet reached agreement on such a plan. Accordingly, the DNC is not in a position to comment on the specific rotating regional primary system that would be imposed by S. 1905, or to comment on any other specific proposal. We do strongly believe, however, that the responsibility for establishment of rules for selection of delegates to each national party’s nominating convention should remain with each national party and that, indeed, Congress lacks the authority to impose a particular system of delegate selection on the political parties. For that reason, we would hope that the Congress would not, at this time, take any action on federal legislation addressing the scheduling of presidential primaries and caucuses and we respectfully urge the Committee not to report DNC Written Testimony to Senate Rules Committee on S. 1905 favorably on any such le gislation. The DNC stands ready to work with the Committee and with all interested Members of Congress to develop, it is hoped on a bipartisan basis, a modified calendar for presidential preference primaries and caucuses for 2012 and beyond that will achieve the common goals of fairness, inclusion, diversity and maximum participation by all voters of each party in their party’s nominating process.

I. Background

The timing of presidential primaries and caucuses has been debated within the Democratic Party for nearly thirty years. The full history of this debate is set out in the report of the Price-Herman Commission, which we submit together with this testimony. The developments giving rise to the 2008 rules on timing began in the 2000 election cycle. The DNC’s rules for 2000—as for 1992 and 1996—provided that no state could hold any primary or caucus prior to the first Tuesday in March (March 7, 2000), except that Iowa could hold its caucuses on February 21, 2000 and New Hampshire could hold its primary on February 29, 2000.

The RNC established its own rule on timing, for the first time, for the 2000 cycle. The RNC rules provided that no state could hold a primary or caucus before the first Tuesday of February (February 1, 2000). No exception was made for Iowa, New Hampshire or any other state.

As a result of the Republican rule, five states (Arizona, Delaware, Michigan, South Carolina and Washington) scheduled state-run primaries or party-run caucuses in February. The Democratic Parties in those states asked the DNC for permission to hold their events on the same date as their state Republican counterparts. That permission was denied, and as a result, during the five week period from the New Hampshire primary until the opening of the DNC window on March 7,2000, there were primaries and caucuses on the Republican side in those states with no corresponding Democratic event. This put the Democratic state parties at a disadvantage, not only because media attention focused solely on the Republican events but also because the state Democratic parties had to pay for and run separate events held on or after March 7, 2000 whereas their state Republican counterparts could participate in taxpayer funded primaries in February 2000. Additionally, voter turnout was reduced as voters were confused by the separate events held on different dates.

To address that problem, in 2001, then-DNC Chair Terry McAuliffe asked the DNC to adopt rules that would move the beginning of the DNC “window” to the same date as that fixed by the RNC, that is, the first Tuesday in February. The DNC adopted that position and the DNC’s rules for 2004 provided that all states could hold their events on or after the first Tuesday in February (February 3, 2004), with the exception of Iowa and New Hampshire. After the DNC Delegate Selection Rules for 2004 had been adopted, party leaders from Michigan objected to the exceptions for Iowa and New Hampshire, and the Michigan State Party threatened to submit a delegate selection plan scheduling Michigan’s presidential preference event for the same day as the New Hampshire primary. Ultimately, following discussions DNC Written Testimony to Senate Rules Committee on S. 1905 between the DNC and Michigan party leaders and elected officials, the Michigan Democratic Party agreed to hold its 2004 contest inside the “window,” and the DNC agreed to form a commission to review the rules and make recommendations with respect to the 2008 calendar. Then DNC-Chair McAuliffe, U.S. Senator Carl Levin (D-Mich.) and Michigan DNC member Debbie Dingell co-sponsored a resolution adopted by the 2004 Democratic National Convention establishing this Commission.

Chairman McAuliffe selected members of the Commission and appointed as its co-chairs, Secretary Herman and Congressman Price.

II. Price-Herman Commission and 2008 Delegate Selection Rules

The Price-Herman Commission held five meetings over the course of ten months and heard testimony from a number of experts and from a variety of state party officials, party leaders, elected officials, national organizations and academics. Numerous timing scenarios were developed and debated extensively by Commission members. The Commission adopted its final report on December 10, 2005. The Commission concluded that, while its members “understand and appreciate the valuable role the Iowa caucuses and New Hampshire primary have played in the Democratic nominating process,” a “majority of Commission members expressed serious concerns that Iowa and New Hampshire are not fully reflective of the Democratic electorate or the national electorate generally—and therefore do not place Democratic candidates before a representative range of voters in the critical early weeks of the process.” Report of the Commission on Presidential Nomination Timing and Scheduling, p. 37.

In the end, the report explains, the Commission “favored an approach that would preserve the first in the national status of Iowa and New Hampshire but address the diversity, representation and participation issues in a meaningful way by including other states in the prewindow period in a schedule in which they would play an important role alongside Iowa and New Hampshire.” Id. at p. 39. Specifically, the Commission recommended that there be one or two first-tier caucuses between the Iowa caucus and the New Hampshire primary; and that following the New Hampshire primary, and prior to the opening of the regular window on February 5, 2008, there be one or two presidential preference primaries and that these new states be of sufficient size to encourage grassroots campaigning.

There followed an extensive, deliberative process by the DNC’s Rules and Bylaws Committee (RBC) to determine which states should hold such events. State parties were invited to apply to be the ones to hold their events “pre-window,” and a number of states made extensive written presentations and testified at length before the RBC at a series of meetings. In evaluating the states that applied, the RBC was guided by the Commission’s recommendation that racial and ethnic diversity; geographic diversity; and economic diversity, including union density, be highlighted in the selection of the new pre-window states.

At the end of that process, the RBC recommended to the full DNC that the Iowa caucuses take place no earlier than January 14, 2008; that one caucus be held between the Iowa caucus and DNC Written Testimony to Senate Rules Committee on S. 1905 the New Hampshire primary, and that the caucus be held in Nevada, a state with a significant and growing Latino population, a sizeable Asian American and Pacific Islander community, and strong organized labor presence; and that one primary be held between the New Hampshire primary and the opening of the window on February 5, and that that primary be held in South Carolina, a state in which African Americans represent a significant share of the Democratic electorate.

The recommended calendar was adopted by the full DNC by a near-unanimous vote on August 19, 2006.

Each of the states permitted by the 2008 rules to hold events prior to February 5, 2008— Iowa (caucuses), Nevada (cauc uses), New Hampshire (primary) and South Carolina (primary) — have submitted to the DNC Rules and Bylaws Committee a plan for holding its event on the date prescribed by the DNC rules. And, with one exception, no other state has submitted a plan providing for the holding of its primary or caucus on any date prior to February 5, 2008. Indeed, in a number of states, party leaders and legislators expressed a desire to hold events earlier than in the past, but in all of those cases, save one, legislatures moving the dates of state primaries moved them to a date on or after February 5 – in compliance with DNC rules. The one exception was Florida, where the legislature passed, and the Governor signed, a law providing for a binding presidential preference primary to take place on January 29, 2008. The state party submitted to the DNC a delegate selection plan providing for the use of that primary to allocate delegates to the Convention, in violation of the DNC rules.

Under the DNC delegate selection rules, if a state party’s plan violates the rule with respect to timing, the number of its pledged delegates—those delegates awarded proportionally to candidates based on the primary or caucus results—is automatically reduced 50% (without any action by the RBC or DNC); no member of the DNC can attend the Convention as a delegate; no Member of Congress can attend the Convention as a delegate; and if applicable, the state’s Democratic governor can not attend the Convention as a delegate. In addition, any presidential candidate who campaigns in the state for the event in violation of the rules cannot receive any pledged delegates from that state. In addition to these automatic sanctions, the DNC RBC has authority under the rules to impose additional sanctions, including further reductions in the state’s delegation.

At its meeting on August 25, 2007, the DNC RBC found Florida’s plan in noncompliance with the DNC rules, and voted to increase the sanctions against Florida by reducing the state’s delegation by 100% unless the state party, within the 30-day period allowed by the Committee’s regulations, submitted a plan for an alternative, state party-run process on or after February 5 that would be used to allocate delegate positions. To date, the DNC’s efforts to enforce the rules have been, except as to Florida, successful in preventing other states from scheduling events prior to February 5 in violation of the rules, thereby preserving the calendar as adopted by the Party, maintaining order in the primary and DNC Written Testimony to Senate Rules Committee on S. 1905 caucus schedule and preventing those states allowed to hold events prior to February 5 from moving their events even earlier. The DNC remains fully committed to enforcing its rules as adopted and to achieving the goals set by the Price-Herman Commission in recommending, for 2008, the primary and caucus schedule adopted by the DNC.

As noted, the Price-Herman Commission, in its final report, expressed serious reservations about two related aspects of the nominating process, tha t would not be addressed in the 2008 rules: the trend for the presidential nominating process to begin ever-earlier, and the “front- loading” of state contests such that an ever-greater percentage of delegate positions were awarded through primaries and caucuses taking place early in the process. As the Commission found, while in 1992 40% of the pledged delegates had been allocated to presidential candidates by the second Tuesday in March, in 2004, 71.4% of the delegates had been allocated by that time.

To help address the front-loading problem, the Commission recommended a bonus delegate system for awarding additional delegates to states scheduling their events later in the election year. A modified version of that system was included in the 2008 Call for the Convention approved by the DNC. And presently, several states have qualified to receive bonus delegates under this system.

With respect to the timing of the nominating process generally, the Commission concluded that “the entire caucus and primary season occurs far too early….” Id. at , p. 43. The Commission noted that under the Republican Party’s rules, the rules for delegate selection for each Convention are set by the prior Convention, and the RNC itself is not afforded authority to modify those rules. Thus, the Republican rules for 2008 were adopted at the 2004 Republican National Convention. Those rules included the starting of the “window” on the first Tuesday in February, thereby pushing back any earlier contests into January. Commission members “expressed considerable frustration that both their pre-window and within-window adjustments were compromised by their inability to adjust the date (February 5) on which the Republican window will open in 2008.” Id. at p. 45.

The Commission urged DNC National Chair Governor Howard Dean to “begin a series of discussion with the RNC as the RNC begins to draft its 2012 rules in anticipation of the 2008 Convention.” Id. at p. 45. Governor Dean agrees with that recommendation and the DNC has taken steps to initiate those discussions with the RNC. But as indicated earlier, no specific plan has been put forward by the two parties for 2012.

Accordingly, the DNC is not in a position to comment on the specific rotating regional primary plan that would be imposed by S. 1905 or on any other specific plan.

The DNC does believe that the responsibility for establishment of rules for selection of delegates to each national party’s nominating convention should remain with each national party DNC Written Testimony to Senate Rules Committee on S. 1905 and that, indeed, Congress lacks the authority to impose a particular system of delegate selection on the political parties.

First, nothing in the Constitution confers authority on the Congress to regulate the timing of presidential primaries run by the states. While Article I, section 4 empowers Congress to override state law as to the “Times, Places and Manner of holding Elections for Senators and Representatives,” it is the state legislatures who are exclusive ly given the power, under Article II, section I, to determine the manner of appointment of presidential electors. That section gives the Congress the power only to determine the time of choosing the presidential electors. And, as two scholars have explained, “this clause quite clearly relates only to the selection of members of the electoral college. The entire presidential nomination process—anything that the parties or anyone else does to influence the effective set of choices available to the electoral college— would appear to be completely extraconstitutional. Certainly the Constitution gives Congress no explicit authority to regulate that process.” William Mayer & Andrew Busch, Can the Federal Government Reform the Presidential Nomination Process?, 3 ELECTION L. J. 613, 615 (2004). Thus, even if legislation such as S. 1905 were to be enacted, it would not be enforceable against states whose legislatures decided to schedule state-run presidential primaries on dates not permitted by such legislation. A state such as Florida, whose legislature enacted a law to hold a primary in violation of DNC rules, would remain equally free to enact a law to hold a primary in violation of federal legislation.

Second, regardless of whether the timing of a presidential preference primary is dictated by federal or state legislation, a national political party cannot be obligated to recognize that primary as binding—that is, the national party cannot be obligated to allocate the delegates to its national convention from that state, among presidential candidates, in accordance with the results of that primary. The Supreme Court has made clear that, in determining the rules for selecting delegates to its national nominating convention, the “National Democratic Party and its adherents enjoy a constitutionally protected right of political association.” Cousins v. Wigoda, 419 U.S. 477, 487 (1975). “The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice Presidential candidates.” Id. at 489-90. In Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981), Wisconsin state law provided for a presidential primary open to Republicans and independents, and required delegates to vote in accordance with the results of the primary. The state submitted a delegate selection plan providing for such an open primary. The DNC’s Compliance Review Commission (now the DNC Rules & Bylaws Committee) disapproved the plan because the plan violated the DNC delegate selection rule banning open primaries. The DNC committee indicated that delegates chosen under the plan would not be seated at the 1980 Convention. The State of Wisconsin sued in the state Supreme Court to force the DNC to seat the delegates. The state court ordered that delegates be seated based on the results of the state-run open primary. The U.S. Supreme Court reversed, ruling that, while the State of Wisconsin was free to run an open primary, it could not force the DNC to seat a delegation chosen in contravention of the party’s rules because such a requirement would violate the party’s associational rights protected by the First Amendment. The Court rejected Wisconsin’s argument that its open primary law placed DNC Written Testimony to Senate Rules Committee on S. 1905 only a minor burden on the national party, holding that a ”State . . . may not substitute its own judgment for that of the Party. A political party’s choice among the various ways of determining the makeup of a State's delegation to the party’s national convention is protected by the Constitution.” Id. at 123-24 (emphasis added). The Court held that a state must demonstrate a “compelling” interest to warrant interference with the party’s constitutionally-protected associational rights and that the state of Wisconsin had not demonstrated such an interest. The Court, of course, has repeatedly thereafter affirmed that the political parties’ constitutionally protected freedom of association protects their decisions about how to select their nominees generally. See, e.g., California Democratic Party v. Jones, 530 U.S. 567 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 21 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). The rights of the political parties in that regard would appear to be strongest in the context of selection of delegates to the national conventions. “The Court’s cases have made clear that the very actions at issue here—the Party’s decision about who can be nominated as delegates….—are themselves clothed in First Amendment protection. Indeed, those cases suggest that that if the State….had tried to assist [a presidential candidate] by attempting to enforce the results of its primary….against the DNC, it would have been met with the bar of the First Amendment.” Larouche v. Fowler, 152 F.3d 974, 992 (D.C. Cir. 1998).

Further, there is no reason to believe that the federal government has any greater right than the states to infringe the parties’ First Amendment rights in this regard. As noted, with respect to presidential elections, it is the states which have the power to determine the manner of selection of electors, while the Congress has the power only to determine the time of choosing the electors. And certainly this power does not extend to determining the time of allocating or selecting delegates to the national conventions. As the Supreme Court has held, “Any connection between the process of selecting electors and the means by which political party members in a state associate to elect delegates to party nominating conventions is so remote and tenuous as to be wholly without constitutional significance.” Democratic Party of the U.S. v. Wisconsin, supra, 450 U.S. at 125 n.31.

As Mayer and Busch suggest, then, “those who seek to reform the presidential nomination process should not place too much reliance on the prospect of federal legislation, but should look instead for ways to strengthen the national parties’ ability to enforce their rules and mandates upon the states.” Mayer & Busch, supra, 3 ELECTION L. J. at 625.

For the reasons stated above, the DNC expresses its hope that the Congress would not, at this time, take any action on federal legislation addressing the scheduling of presidential primaries and caucuses. We respectfully urge the Senate Committee on Rules and Administration not to report favorably on S. 1905 or any similar legislation on this matter. The DNC stands ready to work with the Committee and with all interested Members of Congress to develop, it is hoped on a bipartisan basis, a modified calendar for presidential preference primaries and caucuses for 2012 and beyond that will achieve the common goals of fairness, DNC Written Testimony to Senate Rules Committee on S. 1905