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By Jay Cost

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A Constitutional Amendment?

I am a great admirer of Larry Sabato. For starters, he's a professor at my beloved alma mater. On top of that, his Crystal Ball last year predicted the final result of the 2006 congressional election with a precision that was matched only (so far as I know) by Emory's Alan Abramowitz.

However, his recent editorial in USA Today struck me as misguided. It was also surprising to see it coming from the founder of the Center for Politics, whose motto is "Politics Is a Good Thing."

Sabato, writing about the need to reform our primary process, argues that we need fundamental reform - a regional primary system. Lots of people have argued for this - and I have been a staunch opponent of the idea (see here and here).

However, Sabato takes matters one step further. He argues that a bill passed by Congress is not sufficient. Instead:

We need a constitutional amendment rather than congressional legislation because it would guarantee that the system isn't constantly revised by the games that some legislators will play.

The Framers did not consider placing an Article on politics in the Constitution. But the Founders, almost to a man, wanted and expected constitutional revisions to reflect the changing circumstances of America's democracy.

This is not a good idea. There are two reasons why:

(1) Constitutional amendments are very "sticky." That is, they are extremely difficult to repeal. The only way you can do it is with another amendment - and therefore another super majority. This means that they should only be used to solve certain problems - the problem of the primary is just not one of them.

Typically, amendments have accomplished two functions. First, they have enshrined new core values that the amenders expect will be timeless. Think of the Civil War amendments, the progressive era amendments, etc. Second, they have corrected mistakes in the original design of the structure of the government. Think of the 12th amendment, which fixed what was simply a faulty system created by the original document.

A constitutional amendment for the primary system falls under neither category. This makes such an amendment extremely undesirable. Namely, there is no reason to want the process of nominating presidential candidates to be permanent. Instead, there is every reason to want it not to be permanent.

The process of nominating presidential candidates for office has followed, by my count, five different trajectories. Initially, candidates were selected by legislative caucuses. In the 1820s, this system broke down and was replaced by a popular convention where party loyalists selected nominees. Eventually, this fell under plutocratic control - which was finally broken in the 1970s. Between roughly 1972/76 and 2004, we were in a transition period, evolving toward what we are seeing this year, a national primary day with a few states up front to serve as "cues."

There are several reasons why there have been so many changes. A major one is technology. As technology has become more sophisticated, the system has become more open. This is of fundamental importance. You simply could not take the 2008 way of nominating candidates back to 1808 and expect it to work well. There are technological prerequisites that Americans in the early 19th century simply could not have met. Specifically, I am thinking of communciations technology, which has had the effect of easing the acquisition of political knowledge. Today, it is so much easier to educate oneself about politics than it was in the 19th century. This ease of education has expanded the number of political elites. It has also made it easier for any individual to become an elite. All they need is interest, free time and something worthwhile to say on Blogger dot Com. [That's how I got my start!] Today, there are literally millions of people who could be counted as non-scholarly experts on the state of the political nation.

The voting process necessarily reflects the knowledge and interests of the public - and so it is unsurprising that, as citizens have increased their capacity to acquire information, and therefore their capacity to make more complicated political decisions, the system itself has become more easily accessible. Informed citizens who do not have a say have lobbied for a say - and their lobbies have been successful. Information was a prerequisite in all of this lobbying - and levels of information change over time.

A constitutional amendment that enshrines our way of doing things today could therefore have a very negative effect tomorrow. It would ossify our way of participating in politics, which is conditioned by our particular technological tools. In fifty years, technology might induce another major shift in the way politics can be conducted. Look for instance at the amazing things you can do on the internet in terms of hosting meetings. It might very well be the case in the future that the internet enables us to return to the Jacksonian ideal: a nominating convention in which all those who support the party participate not just by voting, but by actually hammering out between themselves who shall represent the party in the general election. This would be an amazing advancement in participatory democracy.

Wouldn't it be a shame if it were illegal?

The point is that we have to recognize that the process of party nominations changes not just because our values have evolved. It also changes because our technology has evolved. So also have the social and economic bases of our politics. These influence our nominating system in ways that I will not get into here. Importantly, all of these features will continue to evolve even if our values are permanent. This makes the process of nominating a president fundamentally different from the right of women to vote or the illegality of slavery. Once we changed our minds on these matters, we knew that the change was permanent. We wanted constitutional amendments to enshrine our new ways of operating. Flexibility was a vice in those instances and an amendment was a good idea. When it comes to matters like the presidential nominating system - which are conditioned by the growth of the country itself - flexibility is a virtue and an amendment is a bad idea.

(2) I still have yet to see a compelling argument about why this year's system is so awful. People complain about this system all the time. But notice that they hardly ever discuss matters directly. Instead, they use metaphors. Look at Professor Sabato's opening paragraph:

The presidential selection process is badly broken and must be fixed. Several good plans have been proposed, but they haven't gone far enough or offered the kind of discipline necessary to prevent future chaos. We need a constitutional amendment that establishes a rational schedule of primaries.

"Broken," "fixed," "discipline," "chaos." These are all metaphors. What is the real world referant to these metaphors? I have yet to see any that compel me. Nobody ever seems to "get real" about the problems.

Here's my challenge to all who would alter the current system. Explain to me, without reference to metaphors, what the costs of the current system are, and how your alternative would reduce those costs without reducing the benefits by a greater factor.

Sabato makes what seems to me to be a limp argument about the costs of the current system. "This frontloaded calendar forces a rush to judgment by voters and probably will reduce voter participation." This is it? These two problems induce all of those metaphors from the opening paragraph? I don't agree.

And anyway, both of these seem to me to be wrong - or at least underdetermined. We have been locked in a perpetual campaign now for some 9 months. By the time the first ballots are cast, it will have been 12 months. How many freakin' debates have there been to date? 80, right? If voters are rushing to judgment in this kind of voting format, they will be rushing to judgment in any format. As for reducing voter participation, should we not expect the February 5 primary to increase voter participation? After all, almost all of us expect at least one party to have at least two viable contenders on that date. Usually, it is a lack of viable alternatives that keeps voter participation low. And, at any rate, should we not at least wait to see whether voter participation will rise or fall before we start declaring the system "broken" and "chaotic?"

I have discussed the issue of fixing the primary process many times on this blog. My concern is that people want to "fix" it simply because they do not like campaign politics, which is far too messy and disagreeable for a nation that still clings to the Hamiltonian hope of national political unity. If I am correct, then no fixes will satisfy the public because, at the end of the day, it is simply dissatisfied with party politics, which is an inevitable feature of democratic government.

I might be wrong. But I don't think I am. If I were wrong, I think that by now I would have seen an argument that deals in real terms about why the current system needs to be fixed. What do we gain by abandoning the current system? What do we lose? We need to have a sober discussion about costs and benefits, free of metaphors, before we start tinkering around with things.

-Jay Cost