LECTURE #8: Elections and Campaigns

1. LECTURE #8: Elections and Campaigns Presented by Derrick J. Johnson, MPA, JD Advanced Placement United States Government & Politics, School for Advanced Studies

2. Functions of Elections • Elections serve many important functions in the United States. • Most obviously, elections determine who are leaders will be from a field of candidates. • But elections are also an important form of political participation, with voting being the most common form of American participation. • Elections give Americans an opportunity to replace leaders without overthrowing them, thus holding them accountable.

3. The Constitution sets broad parameters for election of public officials. For example, members of the House of Representatives must run every two years and Congress must set the national election on the first Tuesday after the first Monday in November. • However, most electoral guidelines and rules are still set by the individual states.

4. Role of Political Parties • Candidates for political office almost always run with a political party label. • In many countries, the party controls whether to allow candidates to run and actually puts names on the ballot. • However, parties in the U.S. are not as important in elections as it is in other countries. • In the 19th Century, congressional candidates were often chosen by local party bosses. And citizens were more likely to vote a “straight party ticket” than they do now.

5. Today, running for the presidency or Congress requires the candidate to take the initiative by announcing to run, raising money, collecting signatures to get his or her name on the ballot, and personally appealing to voters in primary elections. • Winner-Takes-All • In most American elections, the candidates with the most votes wins. The winner does not have to have a majority (more than 50%), but may only have a plurality, the largest number of votes. • Most Americans elections are single member districts, which means that in any district the election determines one representative or official. • The Winner-Takes-All system contrasts the proportional representation system. Thus it promotes a two-party system.

6. Primaries • Political leaders are selected through a process that involves both primary and general elections. • The primary began in the early part of this century as a result of reforms of the Progressive Movement that supported more direct control by the ordinary citizens of the political system. • A primary is used to select a party’s candidates for elective offices, and states use three different types:

7. Closed Primaries • A voter must declare in advance his or her party membership, and on election day votes in that party’s election. Most states have a closed primary. • Open Primaries • A voter can decide when he or she enters the voting booth which party’s primary to participate in. Only a few states have open primaries. • Blanket (Free-Love) Primaries • A voter marks a ballot that lists candidates for all parties, and can select the Republican for one office and Democrat for the other. • Only Louisiana, Washington and Alaska has this system.

8. The state of Iowa has a well-known variation of a primary – a caucus. Under this system, local party members meet and agree on a candidate that they will support. The local caucuses pass their decisions to the regional caucuses, that in turn vote on a candidate and pass the information on to the state caucus that makes the final decision. • Once the candidates are selected from political parties, they campaign against one another until the general election, in which voters make the final selection of who will fill the various offices. • More people vote in the general election (50%) than in the primary elections (25%).

9. Presidential Campaigns • Campaigns can be very simple or complex. If you run for local school board, you just file your name, answer a few questions in the local paper and sit back and wait for the election. • Running for president is another story. Today, it is almost impossible to mount a campaign for the presidency in less than two years.

10. Step 1: Deciding to Announce • Presidential hopefuls must first assess their political and financial support for a campaign. • They generally start campaigning well before any actual declaration of candidacy. • They may be approached by party leaders or they might float the idea out themselves. • Many hopefuls are governors, military leaders or they come from Congress. • Usually the hopeful makes it known to the press that he or she will be holding a press conference on a certain day at a certain time, and the announcement serves as a formal beginning to the campaign.

11. Step 2: The Presidential Primaries • Candidates for a party’s presidential nomination run in a series of presidential primaries, which they register to run. • By tradition, Iowa is the first caucus held in the election and New Hampshire is the first primary held. • The rest of the states hold their primaries afterwards, before June. • Technically, the states are choosing convention delegates, but most delegates abide by the decisions of the voters.

12. Delegates may be allocated according to proportional representation, with the Democrats mandating this system. The Republicans usually use a winner takes all system. • Candidates who win the early primaries tend to pick up support along the way and those that lose find it very difficult to raise money and they are later forced to drop out. • The tendency for early primaries to be more important than later ones is called frontloading. • By the time the primaries are over, each party’s nominee is almost certainly finalized.

13. Step 3: The Conventions • The first party convention was held during the presidency of Andrew Jackson by the Democratic Party. • It was invented as a democratic or “grass roots” replacement to the old party caucus in which party leaders met together in “smoke filled rooms” to determine the candidate. • Today national party conventions are held during the summer before the general election in November. • Before the advent of the primary system, the convention use to select the nominee.

14. Today, the primaries determine who will be the nominee and the convention formally nominates them. Each party determines its method for selecting delegates, but they generally represent states in proportion to the number of party members in each state. • Conventions have come to serve as pep rallies for the parties in recent years and an opportunity for them to devise the party platform and show party unity.

15. Step 4: Campaigning for the General Election • After the conventions are over, the two candidates then face one another. The two major party candidates usually debate each other in televised debates. • The time between the end of the last convention and Labor Day used to be seen as a time of rest, but in recent elections, candidates go right on to the general campaign.

16. Most of the campaign funds are spent in the general campaign phase. Media and election experts are widely used during this time. • Because each party wants to win, the candidates begin to sound more middle-of-the-road than they did during the primaries, when they were appealing to loyalists for support.

17. Congressional Elections • Like presidential elections, congressional elections also follow the same basic pattern. • They announce for office. • The people select the parties’ candidates • The parties’ candidates campaign against one another. • The official candidate is selected in the general election.

18. However, they do differ from presidential elections in several ways. • Congressional elections are regional, rather than national. • Elections for House of Representatives are less competitive than those for Senate or for the presidency. Between 1932 and 1992, incumbents typically won with over 60% of the vote. In contrast, the presidency is seldom won with over 60% of the vote. Ex: George W. Bush won the presidency in 2000 with 48% of the vote and again in 2004 with 51%. • Congressional elections occur every two years with one-third of the Senate open and all seats in the House open. More voters vote during presidential elections than during mid-term congressional elections. Thus during mid-term years, the ideological activist groups tend to have more of an impact than what hey normally would due to low voter turnout. Ex: 1994, 2006 and 2010 mid-term elections.

19. President’s popularity affects congressional elections, even during off years. This tendency is known as the coat tails effect. There is evidence that the coat tail effect may not be as strong as it once was. In 1992, Bill Clinton won the presidency, but his party lost 10 ten seats in the House of Representatives. In 2000, George W. Bush won the presidency, but his party lost seats in the House and in the Senate. • Congress members can meet with their constituents directly, regularly and personally communicate with them, whereas the president has to primarily rely on the media to communicate to his constituents and he must limit personal contact. • Individual Congress members can blame Congress as a whole or the president for bad times, and usually his/her constituents will accept the “blame game.” However, presidents usually are not successful in playing the blame game, because they are held to a higher standard.

20. Genesis of “One Man, One Vote” • Historically, there have been many obstacles to voting. The major obstacles occur as a result of state interference. • A series of Supreme Court cases began to change this trend and guarantee the concept of “one man, one vote.”

21. Baker v. Carr (1962) • Facts: A statute enacted in 1901 by the Tennessee legislature apportioned members of the state general assembly among the state’s 95 counties in accordance with the number of qualified voters in each county. Decades later, with the 1901 statute still in effect, substantial growth and a redistribution of the population resulted in an apportionment scheme that was “arbitrary and capricious.” Plaintiffs, arguing that their votes were thereby diluted, sued. • Issue: Were Plaintiffs’ claims non-justifiable, political questions? • Held: No. Before the court is not a question (1) decided or to be decided by a political branch of the government coequal with this Court; (2) that touches upon foreign affairs; (3) whereupon the Court is being asked to make policy determinations for which judicially manageable standards are lacking.

22. Reynolds v. Sims (1964) • Facts: This case was a challenge to the malapportionment of the Alabama legislature. The challengers claimed discrimination against voters in counties whose populations that had grown proportionally far more than others since the 1900 census. The complaints noted that the existing districting scheme was based on the1900 census, even though the state constitution required legislative representation based on population and decennial reapportionment. The lower federal court found that the old apportionment scheme, as well as two new ones devised by the legislature, violated equal protection.

23. Issue: Whether this districting scheme violates equal protection. • Held: Yes. Judgment of the lower federal court affirmed and remanded for further proceedings. If a state should provide that votes in one part of the state should receive more weight than votes from another part of the state, the right to vote of those in disfavored areas is diluted. With respect to the allocation of legislative representation, all voters, as citizens of the state, stand in the same relation regardless of where they live. So long as the divergences of a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal population principle are constitutionally permissible, but neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation.

24. Further, equal protection requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.Therefore, this districting scheme violates equal protection. • Discussion: Within a year of the 1962 ruling in Baker v. Carr, suits challenging state legislative apportionment schemes were instituted in over thirty states. This case answered some of the questions left open by Baker.

25. Wesberryv. Sanders (1964) • Facts: A group of voters in Georgia charged that populations in various State legislative districts were so disparate as to violate Article I, Section 2 of the Constitution. They argued that in the selection of delegates one man's vote should be worth as much as another's. • Issue: Did the Georgian state legislature’s apportionment plan violate the concept of Equal Protection and “one man, one vote?” • Held: The Court found that, as in Baker, the malapportionment of districts gave plaintiffs standing and presented a justiciable issue. The Court further found that Section 2, Article 1 of the Constitution requires that, to the extent possible, one person’s

26. vote should be equal to any others when electing Representatives of Congress. Specifically, Justice Black’s majority opinion determined that the clause "by the People of the several States" “means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.” The differences between Georgia’s districts thus represented a violation of this principle. The case was reversed and remanded, with the Supreme Court explicitly electing not to address “the arguments that the Georgia statute violates the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment.”

27. Harper v. Virginia Board of Elections (1966) • Facts: A Virginia law mandated the payment of a poll tax, not to exceed $1.50, in order for citizens to be eligible to vote. The constitutionality of the law was brought into question. • Issue: May a State, consistent with the Fourteenth Amendment, precondition the right to vote in an election on the payment of a poll tax? • Held: No. The judgment of the lower court is reversed.Justice William Douglas (J. Douglas) argued that once the franchise is granted, lines concerning it may not be drawn that are inconsistent with the Equal Protection Clause of the

28. Constitution. The interests a State may pursue (i.e., the legitimate ends) in the context of voting are of setting voter qualifications. There is no relationship between ones wealth or the payment of a fee and ones ability to vote intelligently (i.e., the means to ends relationship is lacking). Moreover, the right to vote is too fundamental to be so burdened. • Dissent: Justice Hugo Black (J. Black) said state poll taxes can reasonably and without invidious purposes, be found to rest on a number of legitimate state interests such as the State’s desire to collect revenue. Justice John Harlan (J. Harlan) stated there is a rational argument for requiring a poll tax, weeding out those who do not care enough about public affairs to pay $1.50 for the right to vote.

29. Campaign Spending • Spending for campaigns and elections are criticized for many reasons. • Major reforms were passed in 1974 largely as a result of abuses exposed by the Watergate Scandal. They include: • The Reform Act of 1974 • Includes a six-person Federal Election Commission to oversee election contributions and expenditures and to investigate and prosecute violators. • All contributions over $100 must be disclosed, and no foreign contributions or cash contributions over $100 are allowed. • Individual contributions are limited to $1,000 per candidate, $20,000 to a national party committee, and $5,000 to a political action committee (PAC).

30. A corporation is allowed to establish a PAC, which has to register six months in advance, have at least fifty contributors, and give to at least five candidates. • PAC contributions are limited to $5,000 per candidate and $15,000 to a national party. • Federal matching funds are provided for major candidates in primaries, and all campaign costs of major candidates in the general election were to be paid by the government. • The 1976 Amendments • Allowed corporations, labor unions, and special interest groups to set up only one PAC to raise money for candidates.

31. Buckley v. Valeo (1976) • The Federal Election Campaign Act of 1971 (Act) was amended in 1974 which created an eight-member Federal Election Commission (Commission) and vested very broad powers in the Commission for administering the Act. • These powers included not only recordkeeping, disclosure, investigative functions, rulemaking and adjudicative powers, but also enforcement powers to institute a civil action for violations of the Act.

32. With respect to four of the six voting members, neither the President, the head of any department, nor the Judiciary had any voice in their selection. • The Appellants challenged the selection process, arguing that the Appointment Clause provides the exclusive method by which those charged with executing the laws of the United States may be chosen. Appellants further claimed that, if Congress retained the power to appoint, the members of the Commission could not discharge those functions which can only be performed by Officers of the United States under the separation of powers doctrine. • The lower court, the Court of Appeals, held that the Necessary and Proper Clause of the Constitution gave Congress the authority to establish the Commission and appoint its members.

33. The central issue was: “Were the powers of the Act vesting in the Commission the primary responsibility for conducting civil litigation in the courts constitutional?” • The Supreme Court answered this in the negative. Article II, Section:2, cl. 2, of the Constitution of the United States, the Appointment Clause, provides: “The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.”

34. The Supreme Court also ruled that limiting the amount that a candidate could spend on his or her own campaign was unconstitutional. They stated that “The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election.”

35. Campaign Reform • After the 1996 presidential election, criticisms of campaigns became so strong that special congressional hearings were called to investigate them. For example, one accusation was that President Clinton and Vice President Gore ruthlessly pursued campaign funds from their offices and the White House. Attorney General Janet Reno had to investigate those allegations and rule on the legality. • Another allegation was that contributions were accepted from foreigners. Ex: Al Gore at Buddhist temple.

36. When John McCain ran for president in 2000, he made campaign reform a major tenet of his campaign. He criticized the use of soft money, which is the use of funds that are not specified for candidates’ campaigns, but are given to political parties for “party building activities.” • McCain claimed that this money made its way into candidate campaigns anyway. • Although McCain lost the Republican presidential nomination to George W. Bush, he carried his cause back to the Senate. • In 2002, McCain and Wisconsin Democratic Senator Russ Feingold sponsored the Bi-Partisan Campaign Reform Act of 2002 (a.k.a.: McCain-Feingold Campaign Reform Act). • The Act banned soft money to national parties and placed curbs on the use of campaign ads by outside interest groups.

37. The limit of $1,000 per candidate contribution was lifted to $2,000 and a maximum that an individual can give to all federal candidates was raised from $25,000 to $95,000 over a two-year election cycle. • The act did not ban contributions to state and local parties, but limited soft money to $10,000 per year per candidate.

38. Citizens United v. F.E.C.(2008) • The Citizens United is a nonprofit organization with a 12 million budget. Some of its funding comes from for-profit corporations. This organization created a 90 minute documentary named Hillary, which names Hillary Clinton and shows interview and political commentators all who urged voters to not vote for Hillary. • The organization first released the movie in theaters and then on DVD. Afterwards the organization produced two 10-second ads and one 30-second ad promoting viewers to order the documentary on-demand.

39. A negative statement about Hillary is made and then information on how to find the website is given. This movie is basically a feature-length negative advertisement against Hillary. • The central issue was: “Whether section 441b of the Bipartisan Campaign Reform Act BCRA which criminalizes ads produced by corporations that expressly advocate for or against a candidate within 30 days of the primary elections and within 60 days of the general election is constitutional?” • The Supreme Court answered in the negative. The Government may not suppress political speech on the basis of the speaker’s corporate identity.

40. Corporations have long been held to enjoy Constitutional rights of Freedom of Speech just like an individual, regardless of their status of for-profit or non-profit. The government does not have any sufficient interest in the complete ban of such advertisement. • Banning all corporations from political speech is too broad and the constitution will not allow it. The Government to support this ban, states the compelling interest is in preventing the corrosive and distorting effects of immense aggregation of wealth that are accumulated with the help of corporate form.

41. That can not be sufficient to state that corporation’s rights of Freedom of Speech should be taken from it, simply because it has the funds to support its ideas. • The dissenting members of the Court stated that the distinction between an individual and corporation is significant. Congress throughout history has put limitation on corporate spending, and it should not change now. Corporations do not need PAC’s, but they help protect shareholders from engaging in business with a corporation without the fear of possibility supporting a political agenda they do not agree with.

42. Bush v. Gore (2000) • Facts: The 2000 presidential election was a close race between Texas Governor George W. Bush and Vice-President Al Gore. On election night, the results were inconclusive. Gore had won the popular vote, but neither candidate had won the electoral vote. The election outcome depended on Florida. After a series of challenges in the state courts, the Florida Supreme Court ordered a manual recount for voter’s cards to determine what ‘hanging chads’ meant; there were a bunch of votes that didn’t count that Gore wanted to be counted. However, there were different methods for doing the recount all across the state. Bush argued that this is unconstitutional because it violated the Equal Protection and Due Process Clauses.

43. Issue: Did the FL SC establish new standards for resolving Presidential election contests violating Art 2, § 1, cl.2 of Constitution and also 3 USC § 5? Does the use of standardless manual recounts violate the Equal Protection and Due Process clauses? • Holding: The Court held that it did violate the Equal Protection only. The failed to address the Due Process issue. • Reasoning: “When the state legislature vests the right to vote for President in its people, this right becomes fundamental and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” A person’s vote cannot be given disparate or diluted treatment.

44. The Aftermath of Bush v. Gore • The problems with counting the votes in Florida during the 2000 presidential election led to widespread criticism of a long accepted tradition in American politics: local control of the voting process. • When Florida’s votes were first counted, Bush received only a few hundred more votes than Gore. The automatic recount narrowed it even further.

45. America watch as local officials tried to recount ballots in a system where local voting methods and regulations varied widely. • Some precincts had electronic voting machines and others had paper punch ballots which left hanging chads. • The recount process was guided by the “intent of the voter” principle which produced variations. • The Bush v. Gore case put the national spot light on the deficiencies of local control of elections and the disparity between voting in affluent areas where the voting machines are up to date and the poorer areas that don’t have access to such equipment.

46. Justice John Paul Stevens symbolized, in his Bush v. Gore dissenting opinion, the mood of the country when he said: “What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

47. THE END OF LECTURE #8