Electing the President in 2012: Three Predictions About How the Rules Might Differ Next Time Around

By RICHARD L. HASEN
Tuesday, Nov. 04, 2008

Soon the television networks will make their projections, one of the candidates will make a concession speech, and the armies of lawyers who were activated for Election 2008 will be sent back to their barracks -- er, offices. So it is the perfect time to start thinking about Election 2012.

We know that election law affects who gets elected and how, for it governs questions ranging from how presidential nominees are chosen, to the fundraising rules, to the rules for the counting and casting of ballots. Though we don't know for sure how the rules for the 2012 presidential election will differ from the 2008 rules, here are three predictions about how the rules may change for 2012, and what that means for the next presidential election.

The First Prediction: Fewer Caucuses, and More Primaries -- at Least on the Democratic Side

It may seem like a distant memory now, but there were a great number of problems with how the Democratic nomination process occurred, in part because of the high interest in the race, and the keen competition between Senators Clinton and Obama. Consider the problems in Texas: Under the Texas Democratic Party rules, two-thirds of the state's presidential delegates are chosen through a primary, while one-third are chosen through a caucus held immediately at the conclusion of voting-with the caucus open only to those who voted in the primary. An estimated 1.1 million Texas Democrats participated in the caucuses, more than 10 times the previous record for caucus participation in Texas. Among the complaints were long lines, unclear rules, inadequate ballot materials, and, in a few cases, physical confrontations. Though Clinton received more votes in the Democratic primary, Obama received more votes in the caucuses and appears to have been entitled to more convention delegates from Texas than Clinton was.

Texas was not alone in having problems. There were complaints about unequal weighting of voting between different areas of the states; caucuses open in Nevada only on the Jewish Sabbath, thereby excluding religious Jews from voting; and the lack of a secret ballot in Iowa and elsewhere.

I expect there will be a move to fix and further democratize the nomination system on the Democratic side. It is true that Sen. Obama did better in the caucus states, but, if he wins, he would be facing reelection in 2012 as an incumbent, and likely not with any significant competition at the primary stage. He is in a strong position to make changes. Conversely, if Senator Obama loses, I still expect a big push in this direction from those who saw some unfairness in some of the rules for the nominating contest.

Whether or not Senator McCain wins may, in turn, determine the shape of Republican nominating reform. During the 2008 Republican convention, the RNC gave the task of crafting new nomination rules to a 15-member committee, which will act in 2010. Sen. McCain will have a lot of say over who is on that committee if he wins; if he loses, however, Marc Ambinder predicts that party insiders will set those rules. What those rules will look like will probably depend upon what these insiders believe was wrong with the 2008 process that produced the early McCain primary victory in spring 2008.

Finally, if it turns out that the parties don't fix some of the perceived unfairness of the presidential nominating system, there is a chance that Congress might do it for them.

The Second Prediction: More Outside Money in 2012

Many of us remember how important outside groups were in the 2004 presidential election-from "Swift Boat Veterans for Truth," to "Americans Coming Together." This time, though, outside groups are the dog that did not bark. Spending by these groups on all election activity is way down this election cycle, and the groups have not been particularly active in the presidential election.

A number of factors help explain the absence of these "527 organizations" in the current presidential election, but a big part of the explanation appears to be the uncertain legal environment. To give a quick bit of background, federal law allows groups to set up a political action committee (or "PAC"). The PAC may take contributions of up to $5,000 from individuals, can contribute up to $5,000 to federal candidates, and can spend unlimited amounts supporting or opposing federal candidates so long as that spending is independent of the candidates. Some 527 organizations claim that they do not meet the federal definition of a PAC, and that, therefore, they can take unlimited contributions from individuals to fund their independent spending.

In the 2004 election, the Federal Election Commission took the position that it would not impose any limits on 527 activities until after the election. At that point, many groups jumped into the fray. After the 2004 election, the FEC still resisted efforts to craft a general rule as to which 527s count as political committees, but it fined some of the 2004 groups for their earlier activities. The result today is that there is considerable uncertainty as to what 527 activity is legal in this election, a state of affairs that appears to have deterred some activity that might have qualified as 527 activity from occurring.

By the time 2012 rolls around, however, the question of which 527s count as PACs could well be moot. Recently, the United States Court of Appeals for the Fourth Circuit decided a case holding that a contribution limit on a (state) PAC that makes only independent expenditures violates the First Amendment's right to free speech and association. A similar case challenging the federal PAC contribution limitation is working its way through the courts as well. With the Roberts Court striking down or limiting campaign finance laws in all three cases it has so far decided, it is a fair bet that by 2012, the Court will side with the Fourth Circuit's view and hold that contribution limits on PACs and other groups violate the First Amendment.

A ruling allowing unlimited sums to be contributed to independent-expenditure PACs would open the floodgates for outside money in the 2012 elections, spurred on by wealthy donors who want to influence the outcome of the election. If Senator Obama is elected, with his $600 million campaign in the rearview mirror, many Republican-oriented groups may see the need for vigorous outside fundraising to try to match his money advantage. In short, the 2008 election may look cheap in comparison to 2012.

The Third Prediction: There Will Be Some Fixes to Our System of Election Administration

Given the highly partisan atmosphere that has existed since 2000 surrounding election administration, it is doubtful if we will see fundamental and wide-reaching changes to the way we run presidential elections, such as universal voter registration and nonpartisan election administration. But problems in 2008 should spur some changes for the better in 2012.

Two major problems from 2008 should get some attention from Congress. First, Congress will need to fix the Help America Vote Act to clarify what should happen when there is a mismatch between a state's voter registration records and records of the state's motor vehicles department or the U.S. Social Security Administration. This issue has been a major source of litigation and contention in the 2008 election, and national guidance from Congress is necessary.

Second, I expect there to be a renewed focus on election administration competence. From long lines to computer glitches to faulty ballot design, many of the problems apparent from this election could have been prevented with better planning and coordination among the patchwork of local and state agencies charged with administering our federal elections. I expect the Senate Rules Committee and others will be looking closely at ways that the federal government can spur state and local governments to improve the voting experience for voters.

What the Changes Mean for Election Day 2012

If I am right, the election process in 2012 will be somewhat better from the point of view of election administration, but still no nirvana. Some of the more contentious issues and problems of both the primary process and voter registration will have been solved, but the parties will find other issues to fight about, for election law remains part of their political strategy. Litigation will continue, as partisan election administrators continue to be in charge in many of our elections.

Wealthy donors could well play a more important role in 2012 than in 2008, and it will be interesting to see how the Obama small-donation model of campaign financing will stack up compared to a strategy based upon well-funded outside groups.

Stay tuned. Like the 2008 election, Election 2012 likely won't be boring.


Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles and writes the Election Law blog.

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