Constitution Check: Is today’s primary election system to blame for gridlock?

Lyle Denniston
Rand Paul
Rand Paul

Rand Paul

Lyle Denniston looks at how the battle to win congressional primary elections today may run counter to advice given by James Madison more than 200 year ago.

The statements at issue:

“I guess to be able to run for the Senate as a Republican in most places of the country, you need to have a resume that says I helped filibuster one of the president’s nominees. Maybe that helps. Maybe that keeps a Tea Party guy from running against you.”

 – Senator Harry Reid, Nevada Democrat and majority leader of the Senate, in a speech in that chamber on February 14, after Republican senators barred a vote on the nomination of former Senator Chuck Hagel to be secretary of defense in the Obama Cabinet.

“[Senator Lindsey] Graham [South Carolina Republican] acknowledged the pressure when I asked him about the influence of home-state politics on his recent actions. ‘You know, I’m in a red state. I know I’m always exposed in a Republican primary,’ he said. … Graham, to get through the 2014 primary, needs to say ‘no’ more often now. … This may be the only way a sensible lawmaker can survive it.”

 – Dana Milbank, Washington Post writer, in an op-ed column on February 16, commenting on a press conference held by Senator Graham after the Hagel nomination was temporarily  put on hold.

“The opening salvos were launched in a very public and very nasty civil war between establishment Republicans and Tea Party supporters when it was reported that Karl Rove was backing a new group, the Conservative Victory Project, to counter the Tea Party’s selection of loopy congressional candidates who lose in general elections. The Tea Party was having none of it.”

 – Charles M. Blow, New York Times writer, in an op-ed column on February 9, commenting on the emergence of the Conservative Victory Project

We checked the Constitution, and…

The word “party” and the phrase “primary election” appear nowhere in the Constitution, and America was electing its third president before political parties even began to emerge. It would not be until the early 20th century that primary elections would become common, as a way to take the selection of candidates away from party “bosses” and return it to the voters.

But something has happened to the party primary in recent years that is leading some academics who specialize in elections to go so far as to propose that the primary be abolished altogether. The claim is that, increasingly, only the parties’ most activist elements tend to dominate those elections, and that contributes to partisan polarization. The primary has become an instrument, or so the critics say, to try to “purify” the party to make sure that it does not stray philosophically from the true political dogma and yield to compromise.

Since 2010, the rise of the tea party candidate in primary elections for the Senate and the House is widely acknowledged, by elected lawmakers and political pundits alike, as having a major influence on the potential for compromise in legislative halls. The risk that an incumbent Republican will be ousted at the primary is, as Senator Graham conceded in his recent press conference, a present reality that directly shapes legislative behavior.

And contrary to what has happened to some tea party favorites, the candidate favored by that movement does not always lose in the primary. Indeed, Republican senators serve alongside two GOP colleagues who got their seats primarily with tea party support: Senator Rand Paul of Kentucky and newly elected Senator Ted Cruz of Texas.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Paul has emerged to such prominence that he gave the tea party response to President Obama’s inaugural address, while the Republican regulars had their own responder: Senator Marco Rubio of Florida.

Paul has proven to be an independent force in the Senate in his two years there. He was recently quoted in news accounts as having said that “if you don’t ruffle any feathers, you’re not doing anything right.”

Texas’ newest senator, who overwhelmed his state’s GOP leaders and bested their favored candidate, appears to have taken Senator Paul’s approach as his own in his early weeks as a senator. Cruz, in an email message last week in response to questions from a New York Times reporter about a series of “no” votes he has cast, commented: “I made promises to the people of Texas that I would come to Washington to shake up the status quo. That is what I intend to do, and it is what I have done in every way possible in the responsibilities that have been granted to me.”

The late Senator Robert Byrd of West Virginia, considered to be the premier defender of the Senate’s prestige and rank, used to give an introductory speech to new senators to remind them of how the Founders wanted that chamber to avoid “fickleness and passion.” And Byrd would quote James Madison as having said to his contemporaries as the Constitution was being crafted: “A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils.”

Perhaps it might be worth noting that Madison made those remarks before primary elections had even been thought of as the mode of selecting senators, and more than 125 years before the American people were willing to trust themselves to elect members of the Senate, in the 17th Amendment.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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