tegrated by the States into the political processes that lead to the final day of election in November.

I see no constitutional problem involved by relating the time requirements, for example, for holding caucuses or conventions. But the essential constitutional predicate is that the caucuses or conventions or the primaries are made by State action, law, or practice, part of the whole election process culminating in the final general election.

In other words, to get back basically to where I started here, all that we have before the Congress at this stage are proposals to regulate the time of holding these preliminary parts of the Presidential election process, whether you call them caucuses or conventions or just plain primaries. And because they relate only to time, that falls squarely within the language of article II, section 1, which says that Congress shall establish the time of holding the election of Presidential electors. We aren't even concerned here with regulating the manner or the place where you would hold these caucuses or conventions. It is the time. You are considering whether you should set a timespan, be it 90 days or 1 month or whatever. That is certainly within the basic concern of the framers of the Constitution when they conferred power upon Congress to determine the time for electing or pursuing the processes which result in the election of Presidential electors.

In that connection, let me quickly say that under article II, section 1, of the Constitution, the States play no role in establishing that time. It simply says Congress shall have the power to determine that time. Now, States obviously can and do determine it, absent any congressional regulation or statute. But if Congress were to determine that all Presidential

Finally, it follows as night and day, in my judgment, that Congress has the constitutional power to establish the time for pursuing these preliminary processes on any basis it decides in its political wisdom. That is really an exercise of the necessary and proper clause, which gives the Congress vast power to implement the vested powers of Congress by enacting laws that it deems necessary and proper to the execution of those vested powers.

STATEMENT OF EUGENE GRESSMAN, PROFESSOR OF CONSTITUTIONAL LAW, SCHOOL OF LAW, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL

I am honored by the Subcommittee's request for my views on the constitutionality of legislation establishing uniform periods of time in election years in which to hold Presidential primaries and caucuses.

Primarily I shall address only one of the four proposals pending before this Subcommittee, the Udall bill.1 That bill proposes a nationally uniform 90-day period in which to hold such primaries and caucuses, while the other three bills would divide the nation into designated regions and allocate to each region a certain date within the 90-day period on which to hold the Presidential primary. I do not believe that such a regional feature either adds or subtracts from the constitutional considerations at stake in the Udall proposal. Accordingly I concentrate here on the power of Congress to limit the period of time in an election year during which Presidential primaries and caucuses may be held within the various States.

1 H.R. 1380 (99th Cong., 1st Sess.). Representative Udall submitted an identical bill in the last Congress, H.R. 6054 (98th Cong., 2d Sess.), on which hearings were held before the Task Force on Elections of the Committee on House Administration on September 19, 1984.

2 The three regional-type proposals are the Bennett bill (H.R. 251, 99th Cong., 1st Sess.), the Nelson bill (H.R. 3542, 99th Cong., 1st Sess.), and the Levin bill (H.R. 4453, 99th Cong., 2d Sess.).

The essence of the Udall proposal is that a Presidential primary with respect to an election of the President "may only be held" in the year of such election and "during_the_period beginning n the second Tuesday in March and ending on the second Tuesday in June" of such year. The bill then defines the term "Presidential primary" as "a primary, caucus, convention, or other means of selecting a candidate for the Office of the President of the United States, except that such term does not mean a national nominating convention of a political party." Finally, the Attorney General of the United States would be authorized to institute "any civil action for injunctive relief as may be appropriate to assure compliance with this Act."

As Representative Udall explained when he testified as to this proposal before the Task Force on Elections in 1984:3

This bill would simply limit the selection of delegates to national nominating conventions to a 90-day period beginning with the second Tuesday in March and ending the second Tuesday in June. That is all it does. It does not overhaul the Presidential primary system; it does not violate the constitutional prerogatives of the States and parties to determine how to select Presidential nominees.

It would make two small but important changes in the way we choose our Presidential candidates. First, the primary season would be limited to a specific period of time, eliminating the disproportionate influence of a few early primary states. Second, a shorter primary season would reduce the amount of campaign spending and relieve, to some extent, the boredom factor that is experienced by many vote[r]s over a prolonged campaign.

A co-sponsor of the Udall bill, Representative Conte, has further explained that: +4 this legislation does address three negative aspects of the Presidential selection process: The exaggerated role of the early primaries, the length of the campaign, and the cost of the campaign.

In my judgment, the proposed legislation is fully consonant with the principles and the provisions of the Constitution. It represents an exercise of Congressional power to enact laws deemed "necessary and proper” for carrying into execution the vested power of Congress (Article II, Section 1, Clause 4) to "determine the Time of chusing the [Presidential] Electors." It invades no exclusive power of the States; indeed, the States have neither the power nor the capacity to determine what is necessary to implement this timing determination. Nor does the proposed legislation, dealing only with the timing of the primaries and caucuses that lead to the choosing or election of the Electors, implicate any First Amendment rights of speech or association that may adhere to political parties or individual voters.

To begin with, the Constitution deals with the timing of federal elections in but two respects: (1) Article I, Section 4 gives Congress power to regulate the "Times," as well as the "Places and Manner," of holding elections for Senators and Representatives; 5 (2) Article II, Section 1, Clause 4 vests in Congress the power to determine "the Time of chusing the [Presidential] Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States." 6

We are concerned here, of course, only with the latter provision, "the Time of chusing [Presidential] Electors." But it is significant that the Framers, when dealing with the time for electing either the Congress or the Electros, gave the final power over time selection not to the States but to the Congress-the one body capable of assuring any degree of uniformity among the States in the timing of federal elections. And the reference in Article II, Section 4 to the day for casting the votes of the Electors being "the same throughout the United States" is some indication that the Framers recognized the need for national uniformity in setting the time for selecting a President.

But the Article II reference to the time of choosing Presidential Electors does not specifically address the modern phenomenon of primaries and caucuses in the States that precede the selection and formation of the Electoral College. We there

3 Hearing on H.R. 6054 before the Task Force on Elections of the Committee on House Administration (September 19, 1984), p. 6.

+ Hearing, supra note 3, p. 8.

5 Pursuant to that vested authority, Congress has provided: "The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3rd day of January next thereafter." 2 U.S.C. 7. The time for election of Senators is directly related to the time for electing Representatives. 2 U.S.C. 1.

6 Congress has provided, 3 U.S.C. 1, that "The Electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President." As to the day on which Electors vote, see 3 U.S.C. 7.

fore must assume, as the Supreme Court assumed with respect to the primary elections that precede Congressional elections, that the Framers "did not have specifically in mind the selection and elimination of candidates for [the Presidency or the Electors] by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication, which are concedely within it." United States v. Classic, 313 U.S. 299, 316 (1941). But, as the Classic opinion continued,

in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. . . . If we remember that "it is a Constitution we are expounding," we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the constitutional purpose.

Classic then proceeds to read Section 4 of Article I in conjunction with Section 2 of that Article, which states that Members of the House shall be "chosen every second Year by the People of the several States." Read together, these sections reveal one of "the great purposes which were intended to be achieved by the Constitution as a countinuing instrument of government." 313 U.S. at 316. That purpose, said the Court, is to secure "a free choice of representatives by the people. [by authorizing] Congress to regulate the manner of [such] elections." Id., at 317. Thus, where a State, exercising its privilege in the absense of Congressional action, changes the mode of choice from a single step (a general election) to a two-step procedure (a primary and then a general election) and thereby makes "the primary and integral part of the procedure of choice, or where in fact the primary effectively controls the choice." Id., at 318, Congress has power under Section 4 to regulate the "Times, Places and Manner" of holding primary elections in the several States. In sum, the authority of Congress given by Section 4 "includes the authority to regulate primary elections when, as in this case, they are a step in the exercise by the people of their choice of representatives in Congress." Id., at 317. And all this regulatory power ensues despite the absence in Section 4 of any specific reference to primary elections.

The Classic decision also identifies an additional and affirmative source of Cognressional power to regulate primary elections in light of the "great purpose" of Article I, Section 4. Id., at 315. That source is the Necessary and Proper Clause, Article I, Section 8, Clause 18, which endows Congress with power to make "all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Govenment of the United States, or in any Department or Office thereof." See McCulloch v. Maryland, 4 Wheat. 316, 420 (1819). By virtue of this clause, Congess has whatever legislative power it deems "necessary and proper" to carry into execution its vested regulatory power over Congressional elections, as vested by Sections 2 and 4 of Article I. Congressional regulations respecting such primary elections thus reflect what Congress deems "necessary and proper" to effectuate the constitutional promise of "the free choice by the people of representatives in Congress." Classic, at 316.

As Justice Black wrote in Oregon v. Mitchell, 400 U.S. 112, 120 (1970), citing the Classic decision, "the power of Congress to make election regulations in national elections is augmented by the Necessary and Proper Clause." The result is that Sections 2 and 4 of Article I, when read in tandem with the Necessary and Proper Clause, have consistently been viewed by the Supreme Court as constitutional authority for providing, by legislation, “a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved." Smiley v. Holm, 285 U.S. 355, 366 (1932). 8

7 The Seventeenth Amendment provides that the Senate "shall be composed of two Senators from each State, elected by the people thereof

8 Section 4 of Article I allots to the States the power to regulate and prescribe the times, places and manner of holding elections for Senators and Representatives; but Section 4 then Continued

In short, the Supreme Court has interpreted the Article I provisions as vesting in Congress sweeping powers to regulate all aspects of both general and primary Congressional elections in order to preserve "the free choice by the people of representatives in Congress." Classic, at 316. The critical and controlling factor that emerges from the Court's broad treatment of Congress' powers respecting Congressional elections is that the Court employs the same constitutional analysis, the same broad treatment of vested Congressional power, in dealing with Article II, Section 1. For that reason, there is no doubt in my mind that Congress has constitutional power to enact a law, such as proposed in the Udall bill, to establish a nationally uniform period of time in which to hold primaries, caucuses and conventions that have become integral parts of the Article II, Section 1 process of choosing Presidential Electors.

The key Supreme Court decision in this respect is Burroughs v. United States, 290 U.S. 534 (1934), which mirrors the later Classic decision in its constitutional analysis. Burroughs dealt with an application of the Federal Corrupt Practices Act to political committees organized for the purpose of improperly influencing the elections for Presidential Electors in two or more States. In holding that Congress has vested authority under Article II, Section 1 to regulate such practices, Burroughs rejected a narrow reading of Section 1 that would have confined Congressional power to the literal language-i.e., determining "the Time of chusing the Electors, and the Day on which they shall give their Votes." Such a literal and narrow reading of Section 1 was held to be "without warrant." 290 U.S. at 544.

Most importantly, Burroughs read this constitutional language as vesting in Congress the power to preserve the purity of Presidential and Vice Presidential elections, even as to matters impugning the integrity of the election process that might occur before the date established by Congress for "chusing the Electors." As the Burroughs Court explained, id., at 545:

The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. To say that Congress is without power to pass appropriate legislation to safeguard such an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection. Congress, undoubtedly, possesses that power, as it possesses every other power essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.

The Burroughs opinion concluded, id., at 547-548, by stating:

The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.

Thus by reading Article II, Section 1 in conjunction with the Article I Necessary and Proper Clause, the Court was able to interpret that Section 1 language as encompassing vast power in the Congress to preserve the integrity and the purity of the Presidential election processes. As noted by the Court more recently in Buckley v. Valeo, 424 U.S. 1, 90 (1976), Burroughs along with Classic stands for this proposition: "Congress has power to regulate Presidential elections and primaries."

The conclusion respecting the Udall bill is inescapable. In establishing a uniform period of time to hold primaries, caucuses and conventions that have been built into the process leading to the day set aside for "chusing the Electors," Congress would be exercising part of its vested power under Article II, Section 1 to preserve the integrity and purity of the Presidential selection process. It is for Congress alone to determine if a shorter primary period is appropriate or necessary to that end. If it is thought that a few very early State primaries create a disproportionate influence on the process leading to the ultimate election of Presidential Electors, that also is a matter solely for Congress to determine.

provides that "Congress may at any time make or alter such Regulations." It is from the latter provisions that Congress is vested with power to enact "a complete code for congressional elections." As explained by Mr. Madison, state regulations might violate the principles of equality or deprive the people of the right of suffrage, and "it was judged proper that it should be remedied by the general government." 3 J. Elliot's Debates on the Federal Constitution 367 (1876). Indeed, Madison indicated the intent was to have regulations that would be "uniform throughout the continent." Id.

There are, of course, ultimate constitutional limits to any Act dealing with the Presidential election processes, just as there are constitutional limits to any legislation passed by Congress. But those limits are reached only if a proposal, such as the Udall bill, encroaches on some area reserved by the Constitution for action by the States, or if it violates some specific guarantee of individual rights, such as those embraced by the First Amendment. Neither type of constitutional limitation is involved in the Udall proposal.

First, by setting a nationally uniform primary period, this proposal, to use the words of the Burroughs opinion, 290 U.S. at 544-545, "is confined to situations which, if not beyond the power of the state to deal with at all, are beyond its power to deal with adequately. It in no sense invades any exclusive state power." Fifty States cannot deal adequately with the problem of establishing a nationally uniform period for holding Presidential primaries, caucuses and conventions.

Finally, I am aware of no First Amendment rights of speech or associations that may be asserted as a barrier to establishing such a uniform period. Political parties and individual voters certainly have various constitutionally protected rights." Without detailing what those rights are, it is fair to say that none of them guarantee that any political party or voter has a right to be heard at a particular time in a Presidential primary season, or at least during an especially early part of the season that Congress has found to be deleterious to the effective functioning of the Presidential selection process. And if there be any arguable impact on such rights, that impact is certainly minimal and incidental.

To repeat my conclusion, the Udall bill and the other three related bills before this Subcommittee are constitutional. If any of these bills be enacted, it would represent an exercise by Congress of its vested powers under Article II, Section 1 and under the Necessary and Proper Clause to preserve and protect the integrity and efficiency of the Presidential election processes.

Mr. SWIFT. Professor Gressman, thank you very much.

Mr. Durbin, with the Congressional Research Service, please proceed as you choose.

TESTIMONY OF THOMAS M. DURBIN, ELECTION LAW SPECIALIST, AMERICAN CONGRESSIONAL

SERVICE

LAW

DIVISION,

Mr. DURBIN. Thank you, Mr. Chairman.

RESEARCH

Mr. Chairman, Mr. Thomas, majority and minority staff, Professor Gressman: it is an honor to be here, and I would just like to state preliminarily that, in accordance with Congressional Research Service policy, any testimony or statements will be objective and nonpartisan.

I have submitted a written statement that analyzes in detail the Presidential primary reform legislation now in this Congress and that touches upon some of the basic constitutional issues that should be addressed by this committee. I will briefly highlight some of the information that is in that report.

First I would just like to preface that remark with the observation that in the Presidential election area we are in a unique area. A Presidential election is not like a regular congressional election, where you have a primary, a possible runoff, and a general election. We are in an area where the name of the game is the selection of delegates in the primary process and the selection of electors in the then general election process. It is a very unique system.

9 For a discussion of some of the constitutional restraints that States may encounter in seeking to regulate political party nominating methods, see Wiesburd, Candidate-Making and the Constitution: Constitutional Restraints on and Protection of Party Nominating Methods, 57 S.Cal.L.Rev. 213 (1984).