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Is This Any Way to Pick a President? Madison's Nightmare

By Ronald A. Cass

By tonight all the political news will be about who won the Iowa caucuses, who lost, and what it means. Candidates will be fighting for air time to explain why their finishing position matters or doesn't. Those who staked their campaigns on victory in the earliest tests of strength, looking for a bandwagon to roll over opponents, have to hope for a high finish. Those who decided to save their powder for later contests have to hope that voters elsewhere will want to think for themselves, not simply rubber stamp the earliest results. And the rest of us will be asking how we came to place our future in the hands of so strange a process.

The current system for picking a nominee is the product of accident rather than design, more like the result of small children scrambling to use up their Lego blocks than a master architect's plan. Depending on how things play out, this nominating process could look like James Madison's nightmare, the antithesis of the system of government that he and his fellow Founders devised.

Madison and his colleagues understood that individuals naturally seek individual benefits even while wishing for the collective good and worried about giving public power to small groups. Madison wrote in Federalist 10 of the concern over faction, over the actions of particularly intensely interested groups, and in Federalist 51 he explained that the whole structure of our government was designed "to control the abuses of the government" while enabling the government to control the governed, a system of divided and dispersed power that limited the influence of any individual or group and that reduced the prospect for precipitous decisions.

That system has stood the test of time. But the current process for nominating our President - the chief symbol and, in important respects, the primary custodian of that system - looks like it stands Madisonian principles on its head. In Madison's time, of course, presidential nominees were picked by small, elite groups. But those groups generally were representative of their parties, and nominees were selected for both their appeal across the party and their prospects for electoral success. And the selection was self-consciously designed to create a different constituency for the President than for the collateral branches of government.

The current nominating process threatens to replace one set of elite voters with another, but with less prospect of securing the benefits of Madison's time.

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The nominating system starts in Iowa, not just with an unrepresentative state but with unrepresentative voters as well. On the Democrat side in particular, this is coupled with deeply flawed voting methods that resemble a political game of musical chairs. And for both sides, the game is played in small venues replete with public pressure, both from those who have intense interests in particular issues and from those who profit directly from the process. Iowa's caucus system empowers the most insular of special interests, political junkies, and folks with little better to do on a cold night in winter. Iowans are wedded to their caucus system, but no political scientist trying to design a representative voting method reflecting national consensus would have thought up this peculiar arrangement.

The next stop is New Hampshire, with about 4/10th of one percent of the nation's population. The New Hampshire primary plays by ordinary primary rules, but it has its share of quirky ideas and preferences. Over the years, New Hampshire has voted for more than a few candidates who've gone on to victory, but its primary voters also endorsed Harold Stassen, Ed Muskie, Henry Cabot Lodge, Paul Tsongas, and Gary Hart, a collection of local favorites, neighbors, and soon-to-implode wannabes.

Iowa and New Hampshire are, to be sure, part of America, but they aren't all of America or a microcosm of America by any stretch of the imagination. The conceit among a group of cognoscenti over the years - and, in truth, not over very many years by historical standards (1968 for New Hampshire and 1972 for Iowa, really) - is that the rest of the nation can pretty well take the leaders selected by these states on faith, trusting that they've done the hard work of looking the candidates over and selecting the best. But "best" for one isn't best for all, and there is plenty of evidence that Iowans and New Hampshirites can favor people the rest of us might not like nearly so much.

Look, for example, at the Republican side of these tests. Few Americans care so much as Iowa's Republican caucus-goers who's closer to the fundamentalist position on a set of quasi-religious issues. While many Republicans want to keep taxes low, few have made a fetish of this the way New Hampshire's GOP has. Most Republicans across the nation place greater emphasis on selecting someone who has demonstrated he can be trusted in a crisis, who has sound values on what government can do well and on what individuals and private enterprises should be left to do, who understands the importance of protecting our safety and our freedom, and who can distinguish what courts must do from what activists want them to do.

The candidates who have invested their time and energy in Iowa and New Hampshire want to start the bandwagon rolling by showing that they can win when actual votes are cast. Before buying into that, the rest of us should ask whether winning there means something to us, whether the winners stand for what we want, and whether the winners there are going to have broad appeal in the general election - where no Republican or Democrat can win without support beyond their own party's base.

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Voters in every state understand this instinctively. That's why they've moved to push forward their own primaries, trying to cast votes when there's still a meaningful contest - even in the face of threats and penalties from the leadership in both political parties seeking to protect their embedded selection rules. And that is the hope for salvaging the best of a bad system.

Although some candidates believe that tightly compressed timing will boost the value of the first victories, the new timetable could instead reduce the impact of the earliest contests. With so many states voting in close proximity, including many states where voters differ markedly from their peers in Iowa and New Hampshire, this electoral season the wagons may not pick up many band members or travel very far.

Certainly, voters should hope that this is how things work this year, since the eventual nominee of either party will be the result of a strenuous decision-making process. That means a decision based on more scrutiny from more different angles from people who have diverse preferences. It means a decision that doesn't give extra weight to the opinions of voters in early primary or caucus states and less weight to the opinions of voters in other states. In other words, it means a system like Madison favored - one that reduces the power of any specially positioned group, rather than magnifying it.

Ronald A. Cass is Dean Emeritus of Boston University School of Law and Chairman of the Center for the Rule of Law.

Ronald A. Cass is President of Cass & Associates, Dean Emeritus of Boston University School of Law, and author of "The Rule of Law in America" (Johns Hopkins University Press).

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