In the early twentieth century there was another movement to reform the presidential nominating process that centered around presidential primaries. Presidential primaries were considered as means for electing delegates to the national nominating conventions so as to eliminate or lessen the influence of party bosses and machines in the selection of delegates. The progressive movement desired to open up the presidential nominating process through the use of presidential primaries and to return to the people the selection of delegates to the national conventions." In 1904, Florida enacted the first presidential primary law which authorized political parties to choose all or some of their national convention delegates. In 1905, the State of Wisconsin adopted a presidential primary law that provided for the mandatory direct election of national convention delegates. The primary mover behind the enactment of the Wisconsin presidential primary statute was Wisconsin's progressive Republican Governor, Robert M. La Follette whose progressive delegation was rejected in a credentials dispute at the Republican National Convention in 1904. In 1906, Pennsylvania enacted a presidential primary statute which provided that candidates for delegate could have printed beside his or her names the name of the presidential candidate he or she would support at the convention. And Oregon in 1910 held a referendum to establish a presidential primary which would bind delegates to support the winning candidates, and by 1912, twelve states had enacted presidential primary laws. 10 This number increased to twenty-six by 1916. However, this number decreased over the next half century so that by 1968, only sixteen states and the District of Columbia had presidential primaries:11 Between 1968 and 1980, the number of states holding presidential primaries increased to thirty-five, not including the presidential primaries held in the District of Columbia and Puerto Rico. In 1984, thirty-three states as well as the District of Columbia and Puerto Rico held presidential primaries. 12

Generally presidential primaries may be classified according to four types: (1) delegate selection only; (2) advisory presidential preference; (3) binding, winner-take-all presidential preference; and (4) proportional representation presidential preference. In the first type, the delegate selection primary, the names of presidential candidates do not appear separately on the ballot, but rather the names of the delegates appear individually or by slate and usually identified by presidential preference. The second type of presidential primary, the advisory presidential preference, generally provides that the vote for presidential candidates is advisory only. This type of primary is used for the purpose of attaining an expression of sentiment and will of party voters as preferring a certain presidential candidate. In the third type, the binding, winner-take-all presidential preference primary, the results of the presidential primary generally bind the delegation to the national convention to the primary winner. And fourth, in the proportional representation presidential primary, the results of the presidential primary are used to allocate national convention delegates to presidential candidates based on the proportion of the vote they receive. 13

The type of presidential primary that a state has may be determined by the state election laws of that state or by the party rules of the particular political party or by a combination of both state laws and party rules. In many states, the major political parties hold different types of presidential primaries in selecting delegates to the national nominating conventions. 14

7 Presidential Elections Since 1789, 2d ed., (Washington: Congressional Quarterly, 1979), p. 125.

8 Id., National Party Convention, supra, p. 10.

9 Id., Presidential Elections Since 1789, Presidential Primaries, supra p. 125. 10 Ibid.

11 William Crotty, supra, p. xiv.

12 The following jurisdictions held presidential primary elections in 1984: Alabama, Arkansas (Democrats only), California, Connecticut, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Mississippi (Republicans only), Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina (Republicans only), South Dakota, Tennessee, Texas, Vermont, West Virginia, and Wisconsin. See, generally, Joseph B. Gorman, 1984 Democratic and Republican National Conventions: Tentative Dates Of Presidential Primaries Or First Step In Caucus Convention Process Leading To The Selection Of National Convention Delegates In The Fifty States And Other Represented Jurisdictions. (Washington: Library of Congress, Congressional Research Service Report, Dec. 8, 1982).

13 Nomination and Election of the President and Vice President: 1980, (U.S. Government Printing Office, Washington, 1980), p. 135.

14 Ibid.

With the growth in the number of presidential primaries came an awareness that the primaries had created certain problems such as, (1) increasing the length of the primary election period, (2) causing expense and physical and mental strain on the candidates, (3) the inability of candidates to campaign in the primaries of some states held on the same date which are not geographically contiguous or approximate, and (4) the difference and variations of state presidential primaries especially as to the manner of selecting and binding delegates. 15 There were several attempts by some states in the mid-seventies to establish regional primaries to aid candidates in the following ways: (1) in reducing their expenses, (2) in lessening physical and mental strain, and (3) in permitting them to concentrate on regional issues. Attempts to regionalize the presidential primaries were made by various states in the West (Idaho, Nevada, and Oregon), the South (Arkansas, Kentucky, and Tennessee), and in New England (Massachusetts, New Hampshire and Vermont) were generally unsuccessful. Other approaches to reform the presidential primary system have been at the federal level. 16

II. CONGRESSIONAL PROPOSALS TO REFORM THE PRESIDENTIAL PRIMARY SYSTEM

Since 1911, hundreds of bills have been introduced in Congress to reform the presidential primary system, and most of these bills saw little legislative activity.17 In recent Congresses, there have been four general types of legislation introduced relating to reform of the presidential primary system: (1) legislation to establish regional primaries, (2) legislation to establish four dates on which primaries would be held, (3) legislation to establish a direct national primary, (4) legislation to establish a commission to study the presidential nominating process, and (5) legislation establishing a window for such primaries between the second Tuesday in March and the second Tuesday in June. [See H.R. 1380, 99th Cong., 1st Sess.] [The regional primary proposals in the 99th Congress are: H.R. 251; H.R. 3542; and H.R. 4453.] A. Regional Presidential Primary Proposals

In recent Congresses, the most popular proposal for presidential primary reform provides for a system of regional primaries. There are three types of proposals for regional presidential primaries. The first type would establish a series of six regional presidential primaries.18 The primaries would begin on the last Tuesday in March and continue on the second and fourth Tuesday in April and May and end on the second Tuesday in June. 19 The primary ballot would indicate whether a delegate is committed or uncommitted to a candidate.20 Presidential candidates would be required to have their names entered on the ballot of at least one of the state primaries in order to receive the matching payments for public financing under section 9037 of the Internal Revenue Code of 1954.21 The six regions include not only the states but also the District of Columbia, the Canal Zone, Guam, Puerto Rico, and the Virgin Islands.22

15 Id. See generally Presidential Elections Since 1789, 2d ed., supra at p. 127.

16 Ibid.

17 Ibid.

18 See, H.R. 43, 98th Cong., 1st Sess. (1983); H.R. 105, 97th Cong., 1st Sess. (1981); cf S. 2741, 94th Cong. 1st Sess. (1975). See also H.R. 251 (Rep. Bennett), 99th Cong., 1st Sess. (1985).

19 H.R. 43, 98th Cong., 1st Sess., §3(b) (1983); H.R. 105, 97th Cong., 1st Sess. §3(b) (1981). See also H.R. 251 (Rep. Bennett), 99th Cong., 1st Sess. (1985).

20 H.R. 43, 98th Cong., 1st Sess., §3(c)(2) (1983); H.R. 105, 97th Cong., 1st Sess. §3(c)(2) (1981). See also H.R. 251 (Rep. Bennett), 99th Cong., 1st Sess. (1985).

21 H.R. 43, 98th Cong., 1st Sess., §4 (1983); H.R. 105, 97th Cong., 1st Sess. §4 (1981). See also H.R. 251 (Rep. Bennett), 99th Cong., 1st Sess. (1985).

22 H.R. 43, 98th Cong., 1st Sess., §5 (1983); H.R. 105, 97th Cong., 1st Sess. §5 (1981). The fifty states, the District of Columbia and the territories are divided into the following six regions: See, H.R. 251, 99th Cong., 1st Sess. (1985).

(A) Region 1 comprises Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont.

(B) Region 2 comprises Delaware, District of Columbia, Maryland, Ohio, Pennsylvania, Virginia, and West Virginia.

(C) Region 3 comprises Alabama, Canal Zone, Florida, Georgia, Kentucky, Puerto Rico, Mississippi, North Carolina, South Carolina, Tennessee, and Virgin Islands.

(D) Region 4 comprises Iowa, Illinois, Indiana, Michigan, Minnesota, Montana, North Dakota, South Dakota, and Wisconsin.

(E) Region 5 comprises Arkansas, Colorado, Kansas, Louisiana, Missouri, Nebraska, New Mexico, Oklahoma, and Texas.

(F) Region 6 comprises Alaska, Arizona, California, Guam, Hawaii, Idaho, Oregon, Nevada, Utah, Washington, and Wyoming.

The second type of regional primary would provide for a series of five primaries. 23 The primary ballot is to include names of presidential candidates who have received public financing funds. 24 One proposal would allow any presidential candidate to be excluded from the ballot of any regional primary who would file with the Federal Election Commission (FEC) an affidavit indicating that he is not or did not intend to become a candidate for nomination or election to the presidency.25 This proposal would also provide that only sixty-five percent of the delegates may be chosen by the regional primary method, while the remaining delegates are chosen by the political party organizations of the state.26

Another proposal which provides for a five regional presidential primary system requires candidates to designate the names of individuals who are to serve as delegates of the candidates. 27 This proposal would award a candidate a number of delegates in proportion to the number of votes cast for him.

There are also provisions for the reimbursement by the FEC to the states for the costs in conducting primary. 28 Another proposal would provide that states may be reimbursed for the costs of converting to the regional presidential primary sysem from their former presidential primary systems. 29 The FEC is authorized in some proposals to prescribe the date on which the chief executive officer shall clarify the results.30 And the FEC is required to consult and cooperate with state officials to assist them in conducting regional primaries.31 The five regional-primary system proposals would also include the District of Columbia, Puerto Rico, the Virgin Islands, and Guam.32

The third type of regional primary proposals provide for four regional presidential primaries which would divide the states, the District of Columbia, and the territories into four regions and would determine by lot the numerical order of each of the primaries.33 Like the other regional presidential primary proposals, the District of Columbia, Puerto Rico, the Virgin Islands, and Guam are included. 34

23 See, S. 1149, 97th Cong., 1st Sess. (1981); H.R. 3583, 97th Cong., 1st Sess. (1981); and H.R. 3905, 97th Cong., 1st Sess. (1981).

24 S. 1149, 97th Cong., 1st Sess., § 3(e)(1)(1981); H.R. 3583, (97th Cong., 1st Sess. § 3(e)(1)(1981; and H.R. 3905, 97th Cong., 1st Sess., § 2(c)(1)(1981).

25 S. 1149, 97th Cong., 1st Sess. § 3(g) (1981); H.R. 3583, 97th Cong., 1st Sess. § 3(g) (1981).

26 S. 1149, 97th Cong., 1st Sess., § 4(a)(1)(2) (1981); H.R. 3583, 97th Cong., 1st Sess. 1 § 4(a)(1)(2) (1981).

27 H.R. 3905, 97th Cong., 1st Sess. § 3 (1981).

28 H.R. 3905, 97th Cong., 1st Sess. § 4 (1981). S. 1149, 97th Cong., 1st Sess., § 6 (1981).

29 H.R. 3583, 97th Cong., 1st Sess. § 6 (1981).

30 H.R. 3905, 97th Cong., 1st Sess. § 6 (1981).

31 S. 1149, 97th Cong., 1st Sess., §7 (1981); H.R. 3583, 97th Cong., 1st Sess., §7 (1981); H.R. 3905, 97th Cong., 1st Sess., § 6 (1981).

32 S. 1149, 97th Cong., 1st Sess., §8 (1981); H.R. 3583, 97th Cong., 1st Sess., §8 (1981); H.R. 3905 97th Cong., 1st Sess., § 8 (9181). The fifty staes, the District of Columbia and the territories are divided into the following five regions:

(A) Region 1 comprises Maine, Massachusetts, New Hampshire, Rhode Island, Vermont, Connecticut, New York, Pennsylvania, New Jersey, and Delaware.

(B) Region 2 comprises Michigan, Illinois, Indiana, Ohio, West Virginia, and Kentucky.

(C) Region 3 comprises the District of Columbia, Maryland, Virginia, North Carlina, South Carolina, Tennessee, Mississippi, Alabama, Georgia, Florida, the Commonwealth of Puerto Rico, the Virgin Islands, and the Canal Zone.

(D) Region 4 comprises North Dakota, South Dakota, Minnesota, Wisconsin, Iowa, Nebraska, Kansas, Missouri, Oklahoma, Arkansas, Texas, and Louisiana.

(E) Region 5 comprises Washington, Oregon, Montana, Idaho, Wyoming, California, Nevada, Utah, Colorado, Arizona, New Mexico, Alaska, Hawaii, and Guam.

33 S. 1336. 97th Cong., 1st Sess., § 3(b) (1981); H.R. 775, 97th Cong., 1st Sess., § 2(b) (1981).

34 In S. 1336, 97th Cong., 1st Sess. § 5(3) (1981), the states, the District of Columbia, and the territories are divided into four regions as follows:

(A) Region 1 comprises Connecticut, Maine Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, Delaware, Maryland, the District of Columbia, Virginia, North Carolina, South Carolina, and the Virgin Islands:

(B) Region 2 comprises Indiana, Ohio, Pennsylvania, West Virginia, Kentucky, Tennessee, Alabama, Georgia, and Florida;

(C) Region 3 comprises Iowa, Illinois, Michigan, Minnesota, North Dakota, South Dakota, Wisconsin, Nebraska, Missouri, Arkansas, Mississippi, Louisiana, Kansas, Oklahoma, and Puerto Rico; and

(D) Region 4 comprises Montana, Alaska, Arizona, California, Hawaii, Idaho, Oregon, Nevada, Utah, Washington, Wyoming, Colarado, New Mexico, Texas, and Guam.

And in H.R. 775, 97th Cong., 1st Sess, § 3 (1981), the states, the District of Columbia, and territories are divided into the following four regions:

Continued

B. Four Dates For Presidential Primaries

One proposal would provide for the regulation of presidential primary elections in the states by requiring that each presidential primary held by a state shall be held within one year preceding the expiration of the regular terms of the President and Vice President and shall take place on one of four dates: (1) the second Tuesday in March, (2) the second Tuesday in April, (3) the second Tuesday in May, or the second Tuesday in June. 35 A political party may be eligible for a separate ballot in such primaries if the candidates for President and Vice President received at least ten percent of the votes at the last presidential election.36 A candidate who does not receive at least ten percent of the vote in a particular primary would not be allocated any of the delegate votes. And delegates who receive ten percent or more of the presidential primary vote shall be allocated delegate votes on the first ballot at the national nominating convention of the political party. The number of delegate votes allocated to qualifying candidates are to be prorated on the basis of the candidate's proportion of the total number of votes cast for all candidates.37

This proposal would require that the national party delegate selection rules must be established and promulgated at least sixty days prior to the start of the delegate selection process but no later than the first of January of the presidential election year.38 Delegates are to be prorated based on the eligible candidates' winning proportionate shares of the votes cast for all candidates in each of the presidential primaries. The delegates, moreover, are to be bona fide supporters of the presidential candidates to whom they are allocated and shall be bound to vote for such presidential candidates for the first ballot of the national nominating convention.39

This proposal would further provide that the Federal Election Commission prepare a tentative list of presidential candidates who (1) meet the constitutional qualifications for that office and (2) have general recognition as a candidate for President. Any person whose name is not on the FEC's tentative list may petition in writing to the FEC no later than the second Friday in January that his or her name be added. Any person may have his or her name removed from the tentative list by filing an affidavit of withdrawal stating that he or she does not intend to be a candidate. The final list of presidential candidates is to be issued no later than the Tuesday following the third Friday in January.40

Alternate filing requirements for the four presidential primaries are provided for candidates who are able to file timely petitions before the primaries which have signatures of qualified voters who are members of the candidate's political party equal in number to one percent of the total votes cast at the last presidential election.11 Moreover, each state holding a presidential primary election may require that each candidate pay a $500 filing fee.42

C. Direct National Primary

[H.J. Res. 45 (Rep. Smith of Iowa), 99th Cong., 1st Sess. (1985)] Some proposals for reform of the present presidential primary system advocate a direct presidential primary election.43 One bill would require that direct presidential primary elections be held throughout the United States on the first Tuesday after the first Monday in May of each presidential election year. For presidential candidates to be placed on the primary ballot, they would have to qualify 44 in the states and territories which

(a) The Northeastern region shall include: Maine, New Hampshire, Vermont Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Delaware, Maryland, the District of Columbia, Puerto Rico, and the Virgin Islands.

(b) The Southern region shall include: Virginia, West Virginia, Tennessee, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Arkansas, Louisiana, Oklahoma, and Texas.

(c) The Midwestern region shall include: North Dakota, South Dakota, Nebraska, Kansas, Minnesota, Iowa, Missouri, Wisconsin, Illinois, Michigan, Indiana, Ohio, and Kentucky.

(d) The Western region shall include: Washington, Oregon, Idaho, Montana, Wyoming, California, Nevada, Utah, Colorado, Arizona, New Mexico, Alaska, Hawaii, and Guam.

35 H.R. 60, 97th Cong., 1st Sess. § 2(b) (1981).

36 Id., § 2(c).

37 Id., §2(f)(1)(2).

38 Id., § 2(g).

39 Ibid.

40 Id., § 4.

41 Id., § 5(a).

42 Id., § 5(d)(1).

43 See, H.R. 41, 97th Cong., 1st Sess. (1981); H.J. Res. 70, 97th Cong., 1st Sess. (1981); and H.J. Res. 48, 98th Cong., 1st Sess. (1983); H.J. Res. 45, 99th Cong., 1st Sess. (1985).

44 H.R. 41, 97th Cong., 1st Sess. §§ 2, 3 (1981).

are divided into five regions 45 by obtaining petitions containing signatures of registered voters of at least one percent for each region and by obtaining petitions containing signatures in each state territory in a number equivalent to the proportion that the state's or territory's voting age population is to the total voting age population of the region. The proposal would also allow a state to require a filing fee of $2,500 when petition forms are furnished and $2,500 when a candidate qualifies for a ballot position.46 Also, political parties are not allowed to hold national nominating conventions for the purposes of nominating candidates for the offices of President and Vice President.47

Another proposal for the direct nomination of candidates for election to the offices of President and Vice President would provide for a constitutional amendment to do so. 48 The proposed amendment would provide that official candidates of political parties for President be nominated at a primary election by direct popular vote. To qualify for a ballot position, a candidate must file with the President of the Senate a petition signed by a number of qualified voters in at least seventeen states equal to one percent of the total votes cast at the last presidential election. The petition must be filed with the President of the Senate not later than the first Tuesday after the first Monday in April.49 The time for the primary is required to be the same throughout the United States. The primary is supposed to take place on the second Saturday after the first Monday in July unless Congress would provide otherwise. 50 A runoff election would be required if no candidate received at least forty percent of the votes cast. 51 The proposal, moreover, provides that between seven and thirty days after the primary, each political party shall nominate and choose a vice presidential candidate. 52

D. Commission on Presidential Nominations

Because of the many and varied presidential primaries among the states and the District of Columbia and Puerto Rico, more and more pressure has been put on Congress to reform the presidential primary process. In order to do so, a legislative proposal has been made to establish a twenty member Commission on Presidential Nominations to investigate and study the present system. 53 A report by the Commission is to be made to the President and the Congress within one year after the appointment of the members of the Commission which would include alternatives to the present system and recommendations regarding the best system. 54

III. CONSTITUTIONAL AUTHORITY OF CONGRESS TO ENACT PRESIDENTIAL PRIMARY LEGISLATION

Even though the United States Constitution seems to leave the process of regulating presidential elections up to the states under article II, section 1, clause 2, which states, "[E]ach State shall appoint, in such manner as the Legislature thereof may direct, [presidential] electors. I broad powers are given to Congress to regulate such elections under other provisions of the Constitution. One constitutional basis is article II, section 1, clause 4 which grants Congress broad authority in enacting legislation regulating presidential elections including presidential primary elections. That provision provides: "The Congress may determine the time of choos

45 In H.R. 41, 97th Cong., 1st Sess., § 3(b), the five regions are listed as follows:

(1) East: Connecticut, Delaware, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island and Vermont.

(2) Midwest: Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio, Wisconsin, and West Virginia. (3) Southeast: Alabama, District of Columbia, Florida, Georgia, Maryland, North Carolina, Puerto Rico, South Carolina, Virginia, the Virgin Islands, and the Canal Zone.

(4) Southwest: Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, and Texas.

(5) West: Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nebraska, New Mexico, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, Wyoming, and Guam.

46 H.R. 41, 97th Cong., 1st Sess. 1 § 5 (1981).

47 Id., § 6.

48 See, H.J. Res. 48, 98th Cong., 1st Sess. (1983); H.J. Res. 70, 97th Cong., 1st Sess. (1981) (identical bills). See also H.J. Res. 45, 99th Cong., 1st Sess. (1985).

49 Id., § 3.

50 Id., § 5.

51 Id., § 6.

52 Id., § 7.

53 S.J. Res. 10, 97th Cong., 1st Sess. (1981).

54 Id., § 4(b).