David Ray: Convention or Primary?

This weekend, the Republican Party of Virginia will select its statewide nominees via a convention in Richmond, Virginia.  The last time Virginia Republicans nominated a statewide ticket via convention was 2001, when we nominated Mark Earley for Governor, Jay Katzen for Lieutenant Governor, and Jerry Kilgore for Attorney General.  Virginia Republicans nominated a candidate for U.S. Senate by convention last year, but the time before that was in 1994, at the legendary Oliver North convention in Richmond.  Many of the delegates in attendance this weekend have never attended a nominating convention.

Since the Republican State Central Committee voted on March 8, 2008 to nominate its 2009 statewide ticket by convention, many grassroots activists have decided to participate in our convention.  However, others have decried the decision to use a convention to select our nominees, instead of doing what parties do in most other states – nominate via primary.

Many folks, particularly from the more transient parts of Virginia, are perplexed at the decision to nominate via convention instead of via primary.  Some are even angry at the decision.

This pamphlet seeks to lay out the respective cases for each method of nomination, and seeks to persuade the reader that the State Central Committee made the right decision in March 2008.  The case for each method has both a practical and a philosophical component.  This pamphlet will explore these components for each.

Before proceeding, a little history and background are in order.  Prior to the 20th Century, party nominations were routinely decided by some form of convention, for everything from Governor and U.S. Senator to U.S. Representative to Mayor, Sheriff, or local prosecutor.  The Progressive Era of the late 19th Century and early 20th Century ushered in various changes in American politics.  Among these changes was the move to take nominations away from the political parties themselves and put such decisions in the hands of the general voting public.  The method chosen to effect this change was the direct primary – a publicly conducted election in which registered voters actually chose the nominees for public office on behalf of the political party with which they most identified and/or sympathized.  This move was pioneered first in Wisconsin, and by the mid 20th Century, primaries were the most common method of nomination for every partisan public office in nearly every state.

Some states still allow parties to use conventions (e.g., Delaware, New York, Virginia), some require candidates to pass a given convention threshold before being placed on a primary ballot (e.g., Connecticut, Massachusetts, Utah), some show favoritism to the convention process while leaving a primary bypass option (e.g., Colorado, Minnesota), and Iowa actually requires a nominee to be chosen by convention when no candidate receives a sufficient plurality in the primary.  Michigan selects its Gubernatorial and U.S. Senate nominees by primary, but selects its lower statewide office nominees by convention, some weeks after the Gubernatorial primary.  Pennsylvania uses conventions to select nominees only in special elections.  Louisiana had no partisan primaries at all from 1975 to 2007.

Also, some states require primary voters to register their party identification with the state prior to being allowed to vote in a party’s primaries.  Some states (like New Hampshire), while implementing such formal public registration, allow all voters, regardless of party, to vote in any primary they choose.  This practice is called crossover voting.  Other states allow only legally registered party members, as well as independents, to vote in a given party’s primaries, but bar legally registered  members of other parties from voting in that party’s primaries.  Still other states, including several former Confederate states (such as Virginia), have no legal party registration at all.  In the case of non-party registration states, from a legal standpoint, there is no such thing as “crossover voting,” since no one, under the law, belongs to any particular political party, and primary elections are open to every voter.

Arguments for a primary

We’ll begin with the practical arguments for a primary.  Primary advocates assert that primaries, given their inducement for participation by all registered voters, provide the winner with better name I.D.  The thinking is that, in a primary, the candidates will spend money on paid media ads, the news media will devote more time and ink to covering the contest, the party will be spared any expense in conducting the contest (since the state fully funds the actual machinery of the primary election), and a successful primary candidate will have assembled a precinct by precinct operation to win the primary, thus giving him a ready-made organization for the Fall campaign, and a field-tested operation to boot.  With all of these advantages, primary advocates say, any primary victor would have a better chance to win the general election.  Finally, primary advocates assert that the rigors of a primary campaign, combined with successfully assembling a campaign organization, will most frequently lead to the nomination of the most electable candidate.

From the political party’s perspective, there are three general incentives to utilize primaries.  The first two have already been discussed – the purportedly stronger general election candidate, and the husbanding of financial resources for the Fall campaign.  The third item offered to parties by a primary, particularly in states that have no legal party registration, is the list of primary voters.  The primary voter list ostensibly offers parties and their nominees a rich source of volunteers, donors, and eventually voters for the nominees in the general election.

The philosophical defense of primaries is that they are, at their core, more democratic, more reflective of the will of the electorate (or the partisan electorate, where participation is circumscribed by state law).  The rationale here is that nominations should reflect the popular will instead of the will of a select few, such as party insiders, big wigs, or other “big boys” whose interests may diverge significantly from those of the general public.  As such, primaries are seen as a way of taking the nomination decision out of the old smoke-filled rooms and placing it into the hands of the electorate.

Also, primaries are described by advocates as more inherently fair, since they are held at each voter’s local precinct voting location.  They are viewed as more accessible, since they run most of a work day, during which state laws require employers to give employees time off, if necessary, to vote.  This latter requirement makes them accessible to shift workers.  Also, because of absentee voting, primaries are considered more accessible to the handicapped, the aged, those bound to a home or a hospital bed, all federal employees, and military personnel serving overseas.  Finally, since nearly all states hold primaries on a day other than Friday, Saturday, or Sunday, they are more accessible to Christians and Jews who might abstain from participation on a Sabbath.  (It should be noted that Tennessee primaries are held on a Thursday, and Louisiana holds all its elections, except federal general elections, on a Saturday.)  These latter two arguments are the most emotionally compelling, since there is really no political capital to be gained advocating a nomination method that appears to discriminate against devout/observant religious adherents or soldiers fighting for our liberties overseas.

So, with a compelling one-two-three punch case like the one laid out above, who could possibly support nominating a candidate by any method other than a primary?

Arguments for a convention

Before we make the case, let’s define the term.  What is a political convention?  It is nothing more than the assembling and convening of a group of like-minded free citizens to make decisions on its own behalf, such as electing officers, nominating candidates, and/or adopting resolutions or a party platform.

Again, we’ll begin with the practical argument.  Conventions are much more organizationally intensive than primaries.  In a primary, candidates often focus exclusively on precincts where they are strongest.  In a weighted convention (as we use in Virginia, and as most states which use conventions do), candidates can ill afford to write off any territory, since support lost in one precinct or county or city cannot be made up elsewhere.  In a weighted convention, even the largest jurisdiction is limited in its overall percentage of the total votes needed to nominate, so a candidate needs to maximize his strength everywhere.  Such maximization of strength makes it more likely the winner will be ready to repeat this exercise in the general election.  While in the Fall a nominee may still revert to the practice of focusing primarily on his stronger areas, he will be better situated to maximize his turnout in his weaker areas as well.

Also, a list of convention delegates is overwhelmingly more valuable to the party and its nominees than a primary voter list for all of the following reasons.  Primary lists are quite a bit larger than a convention delegate list.  In 1993 and 1994, around 14,000 delegates participated in Republican statewide conventions.  In 1996, nearly 500,000 Virginians voted in the Republican U.S. Senate primary.  No campaign could begin to sift through 500,000 names to find the most likely volunteers or donors.  No local party committee could remotely hope to cull from such an overwhelmingly large pool the folks most likely to become new committee members.  In addition, especially in states like Virginia with no legal partisan voter registration, the primary list is riddled with crossovers, independents, and other voters who are only marginally engaged in the election.  It is a foolish waste of any party’s or any nominee’s time to wade through such a list in its entirety, yet no method exists for narrowing this base to something more workable.

However, those willing to spend a Saturday (or an entire evening, when mass meetings or conventions occur on a weeknight) attending a convention are exponentially more likely to become future volunteers, donors, and/or local committee members.  This pool provides even greater growth and strength to political parties and their future nominees.  Strong county and city committees are indispensable to the long-term health of a party and its nominees.  And party committees are strongest in states that use conventions (e.g., Colorado, Connecticut, Massachusetts, Minnesota, Virginia), and weakest where conventions are never used (e.g., California, Illinois, Maryland, Texas, Wisconsin).  Sooner or later, regardless of the method of nomination employed, either a nominee is weaker than the party would like and/or it’s a bad year for that party.  In such instances, there is absolutely no substitute for a strong, vibrant, well-organized, and well-heeled local party committee.  Local party committees offer even the most poorly-funded nominee a ready-made volunteer campaign staff – something a primary list could never provide as quickly or as effectively.  A strong local party committee can be ready for the Fall campaign by the morning after the convention.  A primary list will always take weeks (if not months) to obtain, sift through, and draw volunteers from.

Candidates spend quite a bit less money in conventions than in primaries winning the nomination.  This allows less well-funded candidates to be competitive (thus mitigating a well-funded candidates’ huge money advantage).  This is true, given the more grassroots intensiveness of a convention campaign.  Money simply does not tip the scales in favor of the richest candidate(s) in a convention as it does in a primary.  Additionally, regardless of how well or poorly funded the winner is, more of his resources can be saved for the general election, when stockpiled funds are more valuable.  Better to have more cash flow in October than to use the money for the nomination in the Spring.  No contested nomination victory is free, but it’s pointless to bankrupt the nominee (via expensive media buys and mass mailings) just as he begins to gear up for the Fall campaign.  And, while seeking the nomination, the money a candidate does spend goes more towards grassroots organizing – a more valuable Fall campaign tool – than to media outlets (most of whom favor Democrats) or consultants.  No consultant fee ever won over a swing voter, but a broad-based grassroots campaign certainly can.

Granted, every nomination contest has the potential to be ugly and dirty.  But, for all the hard feelings exposed in a tough convention campaign, these are magnified all the more when the fight is held in full public view via a scorched earth mudsling fest on television.  Sure, candidates or their surrogates try to rough up their nomination opponents.  What else is new?  But it’s best to avoid airing dirty laundry outside the family as much as possible.  Yes, the other party’s nominee can still drag your candidate through the mud in the Fall, but there’s no compelling reason to make his job easier.

For the political parties, conventions also provide a fundraising opportunity.  Ads can be sold in a convention program, and various convention sponsorships can not only cover the cost of holding the convention, they can help give the party necessary funding to support the eventual nominees in the general election.  In short, conventions make money.

Also, in Virginia, a convention offers a political party the ability to select its nominee at an earlier date than the primary, which is usually held the second Tuesday in June (except in redistricting years, during which legislative and county magisterial district nominations are usually held in either August or September).  While the primary filing deadline is the second Friday in April, a convention deadline can be set months earlier.  In 2007, the 29^th State Senate District Republican Committee set a filing deadline in January.  Bob FitzSimmonds, the only candidate to file, knew he was the nominee in January and was thus able to begin preparing his Fall campaign 10 months out.

Finally, a convention offers a political party a way to ensure it does not have an absolutely unelectable nominee.  If only one candidate runs in a convention, unopposed, the party retains the option of selecting no nominee whatsoever.  Imagine if David Duke or Gail Parker were the only candidate to file in a primary.  Under Virginia law, the party would be compelled to accept this person as its nominee.  But in a convention, the delegates could always choose “no nominee.”  Opting to reject the only candidate in a convention still allows the party to select a more acceptable nominee later.

So much for the practical reasons why a convention is better than a primary.  Many may still prefer primaries to conventions, after weighing the comparative assets and demerits of each, from a practical standpoint.  But the philosophical critique of primaries and the corresponding philosophical defense of conventions should eliminate all support for primaries.

First of all, conventions cost the taxpayer nothing.  As the party of fiscal responsibility and reduced government spending, Republicans should embrace this saving of taxpayer funds.

Also, conventions allow political parties to exert more control over their own internal processes, especially regulating who participates in their nomination processes.  While nothing short of having voters register party membership directly with the party itself will ever ensure there are no crossover participants, few Democrats are as likely to formally take part in a Republican convention (or vice versa) as they might be to cast an easy vote in a Republican primary.  Ideally, each party ultimately should keep track of its own members and limit nomination decision-making only to its actual members.  Lest this task seem too overwhelming, consider this: if the AFL-CIO, a national organization representing millions, can keep track of all its members for purposes of its own elections (electing union leadership, voting to approve labor contracts), then so can the Republican National Committee and the Democratic National Committee.

kiss of the vampire aka immortally yours movie Conventions allow parties to set their own criteria for who is and isn’t eligible to receive its nominations.  Parties can set their own deadlines, filing fees, and any other requirements.  Also, convention delegates have a realistic chance to meet all the candidates for office (something many primary voters never have).  This dynamic allows delegates – those actually making the selection – the opportunity to take their measure of each candidate.  While no method ensures that the a priori best candidate is chosen, people who have had sometimes multiple opportunities to meet a candidate are far better suited to deem which candidates would make the better general election nominee and the best public servant.

The single greatest reason primaries are terrible is their unjustified intrusion of state power into the internal affairs of a private association of free citizens voluntarily joined together in furtherance of a common agenda.  The state has only ONE valid interest with respect to elections – ensuring that the general election be conducted honestly, and that the winner be eligible constitutionally to hold the office to which he has been elected.  That is the beginning and the end of the state’s valid interests.

Imagine, if you will, the state government notifying the Club for Growth, the SEIU, the National Rifle Association, EMILY’s List, or the Virginia Society for Human Life that it would be regulating the endorsement process of each of these groups.  Such regulation would include the qualifications for endorsement (such as years of membership in the group, the number of other supporters required to sign a qualifying petition, and even the amount of the filing fee to qualify), the window during which the groups might consider their endorsement options, the date on which the endorsements must be completed, the locations where the groups must conduct the selection process, and the hours of the day during which the formal selection process must occur.  If government were to intrude this violently with the free choices of private organizations, we would expect lawsuits.  And we would certainly be treated to passionate tirades against such government tyranny.  Few Americans would feel there was any valid reason to trample upon the free association rights of a private organization.

For years, assorted public policy organizations have been assessing candidates for public office, and every cycle, these groups announce their endorsements.  Each group has chosen the criteria needed to earn its endorsement, as well as the timing of such a choice.  Some groups endorse earlier in the cycle than others.  Some endorse in primaries.  Some do not.  And the endorsement decisions are not subject to any appeal.  If, for example,  Frank Wolf believes his record on the right to keep and bear arms has earned him the endorsement of Gun Owners of America, but GOA chooses to endorse Vern McKinley instead, that’s just the way it goes.  Even if Frank Wolf believes a majority of GOA dues-paid members prefer him to Mr. McKinley, he cannot appeal GOA’s decision.  Once the endorsement is made, it’s over.  Frank Wolf is entitled only to try convincing the general public that his nearly 30 years of public service merit the reward of another 2-year term in the U.S. House of Representatives.  And the time to submit himself to the electorate to pass on his case is on November 2, 2010 – not the arbitrary date of June 8, 2010 chosen by the state.

In the same way, no state has any justifiable or compelling interest in usurping a political party’s free association rights (a First Amendment right) by dictating qualifications for nomination of candidates, setting a filing fee, imposing an arbitrary petition signature requirement (including the ludicrous mandate than no fewer than 400 signatures come from each Congressional district, in the case of statewide candidates).  If a political party wants to select a wholly unelectable candidate, or even an ineligible candidate, that is not any concern of the state.

The Progressive Era waned after the election of Sen. Warren G. Harding (R-Ohio) to the Presidency in 1920 – 89 years ago.  But primaries remain with us to this day – and they’re defended by more than pie-in-the-sky reformers who dream of a political world in which no private interest interferes with the serious business of public policy.  Primaries are also the overwhelmingly favorite method of nomination by incumbents.  Incumbents, because of their past electoral success, always start out with better name I.D. than their nomination challengers.  Because of their incumbency, they have better access to funding from outside sources than challengers.  As noted above, these incumbency advantages are magnified in a primary, and they are correspondingly diminished in a convention.  No wonder incumbents prefer primaries – they’re part of an incumbency protection scheme that the government (which they control) has furnished them.

Incumbents often see themselves as presumptively entitled to renomination.  Regrettably, many party regulars share this view.  However, incumbents are nothing more than other job applicants for the position they already hold.  While incumbents are entitled to cite their experience in office as an asset, and party members are certainly free to consider incumbency when making a nomination decision, no incumbent has a right to renomination.  Every incumbent needs to earn renomination every time his seat comes up for election.  And no state law should skew the political landscape in favor of incumbents.

But, state laws are written for incumbents by incumbents.  In Virginia, this incumbency protection racket has reached an even more insidious low.  The Virginia Code, § 24.2-509 B, provides as follows:

“A party shall nominate its candidate for election for a General Assembly district where there in only one incumbent of that party for the district by the method designated by that incumbent … [emphasis added].  …A party, whose candidate at the immediately preceding election for a particular office other than the General Assembly (i) was nominated by a primary or filed for a primary but was not opposed and (ii) was elected at the general election, shall nominate a candidate for the next election for that office by a primary unless all incumbents of that party for that office consent to a different method [emphasis added].”

In layman’s terms, General Assembly incumbents can unilaterally dictate the method of their own renomination.  All other incumbents must be nominated by a primary first in order to acquire the right to demand another primary.  (All Republican members of Virginia’s Congressional delegation currently have this right, under the law.)  Setting aside how this law could ever withstand Equal Protection scrutiny under the 14^th Amendment, it is unmistakable that the Virginia Code was specifically designed to benefit one class of candidates (incumbents) over all others.  Thus it is, under Virginia law, that if a political party wants to make sure its incumbents (other than members of the General Assembly) are more accountable to the party that nominated them, then it needs to ensure that no such candidate is ever nominated by primary.  No matter how beloved an incumbent might be among members of his own party, he remains nothing more than another applicant for his job.  The state, therefore, must not confer on any incumbent an institutionally unfair advantage over his opponents.  Nor should any incumbent, by securing a primary in his current re-election campaign, be able to ensure an unfair advantage over his opponents in the next election, or enjoy a unique legal power vis-a-vis his nomination challengers.

Besides the simple fairness of ensuring a more level playing field for all nomination contenders, incumbent and non-incumbent alike, conventions also ensure greater accountability from incumbents to the party that nominated them.  Incumbents work for the people who elected them, after all, not the other way around.  So it’s most appropriate that, if an incumbent wishes to serve another term, he should have to seek renomination from the actual party activists who worked to elect him before.  Conventions subject incumbents to greater party scrutiny.  They also ensure that an incumbent who has strayed too far from the party’s principles has to face directly, in person, more of the party members he has betrayed.  An incumbent who realizes his party’s activists will be deciding whether or not to renominate him may, in turn, be less likely to stray from the party’s platform.

A nomination, after all, is a gift bestowed on a candidate by a party – not an entitlement.  The nomination ultimately belongs to the party conferring it – not the candidate receiving it and not the general public.

This latter point is why, no matter how sympathetic the plight of the shift workers, the homebound, the religious adherents, or the military personnel, there is no compelling reason for any government (federal, state, or local) to dictate and regulate how, when, if, or on whom a party may confer its official endorsement (i.e., its nomination) for public office, because there is no right held by members of the general public to participate in the internal processes of a private organization.  No voting citizen would assert he has the right, under the law or the Constitution, to help the Sierra Club pick its endorsees.  Correspondingly, no voting citizen has any such right to help a political party choose its nominees.

Now, lest someone envision horror stories of political parties excluding blacks, Catholics, Jews, or some other targeted group, the reality is that, if a political party wants to be electorally viable, it needs to include each of these groups, as well as any other citizens who might otherwise sympathize with its agenda.  But this is a political concern – not a legal one.  If a political party began excluding people from participation for bigoted reasons, it would ultimately be eradicated from the political landscape, or relegated to irrelevant status.  Government has no valid state interest in maintaining the viability of any political party.  Government didn’t create political parties, and it has no business seeking to sustain them or seeking to ensure they only nominate credible nominees.

In sum, conventions, which are conducted completely by private entities to transact a private internal matter, are not on trial.  Primaries are.  Setting aside all the respective merits of the practical justifications for a primary, the question needs to be asked: what is the compelling state interest that justifies denying a political party its First Amendment free association right to control its own internal decision-making processes?  The simple answer is, there is none.  Primaries are a gross violation of a fundamental constitutional liberty – free association.  Thus, primaries should be abolished.

Frequently, when party committees debate whether to use a convention or a primary, each side tries to “prove” its method is better, based on electoral history.  The chart below provides a fairly extensive (though not necessarily comprehensive) list of federal and statewide nominees who won a contested nomination race in Virginia since 1977.  In some races, like Jay Katzen’s 2001 Lieutenant Governor race, the other contestants withdrew before the nomination was decided, but the winner did emerge from what was at one time a contested race.  Such winners are included here.  Convention and primary “winners” are those who won the general election.  Convention and primary “losers” are those who did not.  Primaries produced about as many winners as losers, while conventions yielded far more losers than winners.  However, it should be noted that only one convention winner (among 21) was an incumbent – Rep. Tom Davis (R-11) in 1996.  Meanwhile, the list of primary winners contains 6 incumbents (among 22) – Sen. Chuck Robb (D) in 1994, Sen. John Warner (R) in 1996, Rep. Herb Bateman (R-1) in 1996, Rep. Jim Moran (D-8) in 2004 and 2008, and Rep. Frank Wolf (R-10) in 2008.  Finally, among the 41 convention losers, 19 of them lost to a candidate also nominated by convention.  These 19 losers, shown below in bold, are effectively a wash.  Of the remaining 22 convention losers, 20 were running against an incumbent (designated with an asterisk (*)).  No incumbent federal office holder in Virginia has been denied renomination since 1966, when two incumbent Democrats lost primaries – Sen. A. Willis Robertson and Rep. Howard W. Smith (8).  Sen. Robertson is the only incumbent statewide office holder in Virginia to lose renomination since 1901.

 Convention winners (21):