ing [presidential] Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States."

The Supreme Court in Burroughs and Cannon v. United States 55 quite clearly recognized that the power of Congress to regulate presidential elections was quite broad especially when it was necessary to protect the purity and integrity of presidential elections. The court asserted:

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. 56

In the Burroughs' decision, the court relied on its holdings in Ex Parte Yarbrough 57 which sustained the validity of certain corrupt practices statutes. While the indictments in the Yarbrough case related only to the election of a Member of Congress, the Supreme Court made no distinction between congressional elections and presidential elections so that the holdings in the Yarbrough case were broad enough to include both congressional and presidential elections.58 Both the Burroughs and Yarbrough decisions make it quite clear that at least as far as preventing corruption in federal elections, Congress has broad power to regulate both congressional and presidential elections.

61

Congressional authority over presidential elections was also considered in the complex decision of Oregon v. Mitchell 59 in which there were five separate opinions. None of these opinions received a majority support by the Supreme Court Justices. The Oregon v. Mitchell decision concerned itself inter alia with the federal statutes that provided for uniform absentee registration and voting in presidential and vice presidential elections. In one of the opinions, Justice Black_asserted that Congress has the power to enact such legislation since not only does Congress have the ultimate supervisory power over congressional elections but also Congress has the prerogative to oversee the conduct of presidential and vice presidential elections and to set the qualifications for voters for electors for those offices. 6o Congress also has broad powers to regulate national elections under the necessary and proper clause of the Constitution which authorizes Congress to make all laws which shall be necessary and proper to carry out the other enumerated powers of Congress. Justices Douglas, Stewart, Blackmun, and Chief Justice Burger in concurring holdings in Oregon v. Mitchell found that the fourteenth amendment's privileges and immunities clause 63 as well as its enforcement clause would empower Congress to enact legislation regulating federal elections which would include both congressional and presidential elections. 64 Justice Douglas emphasized; (1) that no parochial interest are necessarily involved in presidential elections (2) that durational residency requirements have the impermissible purposes or effects of denying citizens the right to vote, and (3) that such residency requirements deny citizens their privileges and immunities. 65

62

Thus, the privileges and immunities clause of the fourteenth amendment and the section five enforcement provision of that amendment would seem to authorize Congress to regulate elections as they pertain to the election of the electors of the President and Vice President when the rights or privileges of voters are jeopardized. Arguably, Congress would have the power to protect the privileges and immunities of the electorate as guranteed by the fourteenth amendment by enacting legislation reforming the present presidential primary system so as to reduce the harmful ef

55 290 U.S. 534 (1934).

56 Id., 545.

57 110 U.S. 651 (1884).

58 290 U.S. at 545-546.

59 400 U.S. 112 (1970).

60 400 U.S. at 124.

61 U.S. Const., art. I, § 8 cl. 18.

62 400 U.S. at 120. See, United States v. Classic, 313 U.S. 299, 315 (1941) in which the court upheld congressional power to regulate party primaries.

63 U.S. Const. amend XIV, § 1. The privileges and immunities clause provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...." Cf. U.S. Const. art. IV, § 2.

64 400 U.S. at 291-193.

65 400 U.S. at 148.

fects of an unorganized nonuniforms system of presidential primaries. Moreover, it is argulable that, if Congress found that certain presidential primaries were denying poor or minority candidates equal protection of the laws by forcing them from the ballot because of stringent qualification requirements or by forcing them to campaign in diverse places on the same day with the objective of minimizing those candidates or excluding them from the electorial process, Congress may have sufficient power to enact remedial legislation under section five of the fourteenth amendment.66

In the 1976 supreme court decision on Buckley v. Valeo 67 which considered the constitutionality of various provisions of the Federal Election Campaign Act of 1971, as amended in 1974, the supreme court acknowledged the power of Congress to regulate not only congressional elections but also presidential elections, has been well established.68 In examining the constitutionality of the public financing provisions for presidential elections, the Buckley court asserted that Congress has the power under the general welfare clause of article I, section 8, clause 2 of the Constitution, particularly in view of the enlargement of this power by the necessary and proper clause, to enact a public financing scheme for presidential elections as a means to reform the electoral process.69 It would seem that a similar argument could be advanced that the general welfare clause and its enlargement of power by the necessary and proper clause of the Constitution would be sufficient to empower Congress to reform the presidential electoral process by the enactment of laws that would regulate presidential primaries. 70

IV. CONSTITUTIONAL LIMITATIONS ON THE POWER OF CONGRESS TO REGULATE THE PRESIDENTIAL NOMINATING PROCESS

Despite the fact that Congress has the power under the Constitution to enact legislation regulating to presidential elections, the regulation of presidential elections has generally been left to the states. Article II, section 1, clause 2 of the Constitution directs the states appoint the presidential elections; 71 while article II, section 1, clause 4 directs that Congress shall have the duties of (1) setting the time for choosing presidential elections and (2) providing for day on which they are to vote for President and Vice President.72

Historically, the presidential election process has been a state process with dominant state attributes. The Electorial College is an example of this state dominance whereby voters cast their votes for a slate of electors which are based on the number of a state's Congressmen and Congresswomen who then meet, after their slate won, in the state capital of each state to cast their votes for the presidential and vice presidential nominees of their party.73 In the Federalist paper, it was noted that it was the intention of the Framers of the Constitution to make the presidential selection process more of a function of the states than that of the National Government.74

Congress, no doubt, under article II, section 1, clause 4 of the Constitution has the power to regulate at least the timing of presidential primary elections and to enact legislation that would divide the county into regions for holding such elections at different times. However, one basic limitation on legislative power to regulate the presidential election process is the first amendment right of association which is guaranteed to political parties and their members. The freedom to associate with

68 400 U.S. at 134-144.

67 424 U.S. 1 (1976).

68 The Buckley court noted that the constitutional power of Congress to regulate federal elections is well established and was not questioned by any of the parties in the case. Id., 13. See also, Smiley v. Holm, 285 U.S. 355 (1932); Ex Parte Yarbrough, 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 (1941); and Burroughs and Cannon v. United States. 290 U.S. 534 (1934). 69 Id., 90.

70 Id., 90-91.

71 U.S. Const. art. II, § 1, cl. 2 states: "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress.

72 U.S. Const. art. II, § 1, cl. 4 provides: "The Congress may determine the time choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States."

73 U.S. Const. art. II, § 1; amendment XII; and amendment XX. See also, Who Should Elect The President? (Washington: League of Women Voters of the United States, 1969) pp. 7-12.

74 The Federalist, No. 68 (A. Hamilton); see, Kusper v. Pontikes, 414 U.S. 51, 57 and n. 11 (1973).

others for the common advancement of political beliefs and ideas is a form of activity that is protected by the first and fourteenth amendments of the Constitution.75 In a 1981 Supreme Court decision in Democratic Party of the United States v. Wisconsin ex rel. La Follette, a national political party's refusal to seat state delegates who were elected in an open primary in a procedure that was violative of the national party's rules, was held to be permissible. 76 For the 1980 Democratic National Nominating Convention, the Charter of the Democratic Party provided that the delegates to the convention be chosen through procedures in which only members of the party can participate, and the delegate selection rules provided that only those who wished to affiliate publicly with the Democratic Party may participate in the selection of delegates to the national convention.77 The election laws of the State of Wisconsin provided for an open primary which allowed voters to vote in a party presidential primary without regard to party affiliation and without requiring a public declaration of party preference. According to the election laws, the delegates from Wisconsin to a national convention must vote at the convention in accord with the result of the open presidential primary election.78 The Democratic National Party indicated that the delegates who were bound to vote according to the results of the open primary, would not be seated at the national convention. A suit was brought in the Supreme Court of the State of Wisconsin which held that the open primary system of selecting delegates to the national conventions was constitutional and binding upon the Democratic National Party and that the state's delegates could not be disqualified from being seated at the national nominating convention. 79

On appeal to the United States Supreme Court, the decision by the Wisconsin Supreme Court was reversed. The Supreme Court held that Wisconsin could not constitutionally require that its delegates be seated at a national party's national nominating convention.80 The Court concluded that a national party and its members have a constitutionally protected right of political association under the first amendment for the purpose of advancing shared beliefs which are protected by the fourteenth amendment from any infringement by a state.81 The freedom to associate with others for the common advancement of political beliefs and ideas by membership in a political party is a form of activity that is protected by the first and fourteenth amendments of the Constitution.82 And any interference with the freedom of a political party is simultaneously an interference with the freedom of its adherents.83 And states do not have a constitutionally mandated role in regulating and governing the task of the national conventions to nominate presidential and vice presidential candidates.84 And, in determining the qualifications and eligiblility of delegates to the national conventions of political parties, no primacy is to be accorded to a state's election laws over a national party's rules.85 Consequently, a state cannot constitutionally compel a national party to seat a delegation to its national nominating convention that is chosen in a way that violates the rules of the national party.86 And state interests in preserving the overall integrity of the electoral process in providing secrecy of the ballot, in increasing voter participation, and in preventing harassment of voters do not justify a state's intrusion into the associated freedom of members of national political parties.87

Since states can neither constitutionally regulate the way in which national parties conduct their national nominating conventions nor compel national parties to seat certain delegations contrary to such parties' rules, it is questionable whether or to what extent Congress can enact legislation outside a constitutional amendment, regulating certain aspects of the national nominating conventions such as the seat

75 Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 121-122 (1981). See also, Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).

76 Id., 126.

77 Id., 109-112.

78 Wis. Stat., tit. II, chs. 5-12, § 5.37(4), 5.60(8), 8.12(3) (1977).

79 State ex rel. La Follette v. Democratic Party of United States of America, 93 Wis. 2d 473, 525-526, 287 N.W. 2d 519, 543 (1980).

80 450 U.S. at 126.

81 Id., 121. Cf. Cousins v. Wigoda, 419 U.S. 477 (1975) which held that a state may not compel a national party to seat a delegation which is chosen in a way that violates the rules of the party since the party and its adherents enjoy a constitutionally protected right of association. 82 450 U.S. at 121-122. See also, Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).

83 450 U.S. at 122.

84 419 U.S. at 489.

85 Id., 491.

86 450 U.S. at 126.

87 450 U.S. at 121, 125, n. 29, 126.

ing of delegates. Since federal election laws generally have not been applicable to the national conventions except for some campaign finance provisions,88 the Supreme Court has not had occasion to determine whether Congress has the constitutional power to enact legislation that would dictate to the national parties as to how they are to run their national conventions.89

Arguably political parties are protected against statutory regulations of their own internal affairs whether by state or federal law under the first amendment right of freedom of association which would include the rights of individuals to engage in the association for the advancement of beliefs and ideas.90 This right of freedom of association of political parties is not absolute and is subject to reasonable governmental regulation and limitation, the reasonableness of which is based on certain first amendment balancing tests such as, (1) "compelling interests," (2) "too broadly drawn," (3) "overbreadth," and (4) "less drastic means. ."91 Legislation which would regulate the internal affairs of political parties would have to be analyzed for any infringement on the freedom of association by examining (1) whether the legislative interests in such regulation are legitimate in that they are the types of interests that the government may be involved in and (2) whether the legislative interests are compelling or substantial when balanced against the first amendment associational rights of the national political parties.92

Congressional legislation, like the proposals in the 97th, 98th and 99th Congresses outside of those that propose amendments to the Constitution, that would attempt to regulate any internal affairs or procedures of the national political parties such as, (1) the manner of selecting delegates, to national conventions, (2) the rules for seating such delegates, and (3) the rules for binding delegates as to the candidates for whom they may vote, would raise first amendment issues. Such legislation would have to be analyzed as to (1) whether the federal government interests in regulating the internal affairs and procedures of national parties are legitimate in that these are interests that Congress may constitutionally pursue and (2) whether they are compelling and substantial governmental interests when balanced against any infringement of the associational freedoms of national political parties by legislation that would regulate their internal affairs.

For example, congressional legislation that would require delegates to a national convention to be bound for a certain number of ballots or until a candidate receives less than a certain percentage of the delegate vote or until the delegates are released by a candidate, may interfer with the rules of the national political parties and may violate their first amendment associational rights. Also congressional legislation which would effectively eliminate the need of the national political parties for holding national nominating conventions may infringe also on such associational rights. And congressional legislation that would apportion delegates to the national nominating conventions based on the results of presidential primaries may conflict with the rules and regulations of the national parties and consequently pose first amendment association problems.

Congress has the power under the Constitution to regulate certain aspects of the presidential nominating process such as the time and date of elections. 93 However, Congress' power in this area may be limited if legislation were to encroach upon the internal affairs of national political parties in violation of their first amendment associational rights.94

88 See, for example, 2 U.S.C. § 437 relating to reports on convention financing. 89 419 U.S. at 483, n. 4. The Supreme Court asserted in Cousins v. Wigoda that: “. we intimate no-views upon the merits of, such questions as: (1) whether the decisions of a National Political Party in the area of delegate selection constitute state or governmental action . . . (2) whether national parties are subject to the principles of the reapportionment decisions, or other constitutional restraints, in their methods of delegate selection and allocation and (3) whether to what extent national political parties and their nominating conventions are regulable by, or only by, Congress. Ibid.

90 See, generally, Note, Freedom of Association And The Selecting of Delegates to National Political Convention, 56 Cornell L. Rev. 148, 152-160 (1970). See also, Williams v. Rhodes, 393 U.S. 23, 38 (1968).

91 See, The Constitution of the United States of America, Analysis And Interpretation, Sen. Doc. No. 92-82 (Washington: U.S. Govt. Printing Office, 1973) pp. 966-984; and see 1980 supplement, pp. S106-S109.

92 Id., 56 Cornell L. Rev. 158 (1970).

93 U.S. Const., art. II, § 1, cl. 3, supra.

94 Cf., Williams v. Rhodes, supra, 393 U.S. 30-34, 38, 41 (1968).

V. CONSTITUTIONALITY OF THE PRESIDENTIAL PRIMARY REFORM LEGISLATION BEFORE THE 99TH CONGRESS: H.R. 251; H.R. 1380; H.R. 3542; AND H.R. 4453

It would seem that Congress, under its constitutional authority to regulate presidential elections, would have the power to enact a law establishing a regional presidential primary system. Congress it seems has the power to determine the dates of primaries, the precise number of presidential primaries, the number of regions for such primaries, and the manner in which a regional primary is chronologically first. Accordingly, these provisions in the regional presidential primary legislation in the 99th Congress would appear to be constitutional. [See, e.g. H.R. 251, § 3(a), § 5; H.R. 3542, § 3(b), § 6; and H.R. 4453, § 2(b)(c).]

However, the constitutional authority of Congress to regulate state political party caucuses which select national convention delegates is less clear due to the First Amendment rights of political parties, such as freedom of speech, expression, and association.95 Under the La Follette decision in 1980, the Supreme Court held that any interference with the freedom of a political party is simultaneously an interference with the freedom of its adherents and that states do not have a constitutionally mandated role in regulating and governing the task of the national conventions to nominate presidential and vice presidential candidates.96 Accordingly, legislation that would regulate state political party caucuses should be closely examined as to the First Amendment constitutional issues that are similar to those that were addressed in the 1980 La Follette decision. [See, e.g., H.R. 3542, § 3 relating to regional primary elections and caucuses; H.R. 1380, §§ 1 and 2 relating to primaries, caucuses, or conventions; H.R. 3542, § 3 relating to regional primary elections and caucuses; and H.R. 4453, § 2(a)(b) relating to inter-regional primary elections and caucuses.] The provision that would simply establish a "window" requring that presidential primaries occur between two dates such as between the second Tuesday in March and the second Tuesday in June during a presidential election year, would seem to be within the constitutional authority of Congress under its power to regulate presidential elections. However, to extend this legislation to cover the timing of political party caucuses may pose First Amendment freedom of association problems since such legislation may overly interfere with the traditional and historical timings of state political party caucuses and conventions. [See H.R. 1380, §§ 1 and 2 relating to a "window" for presidential primaries, caucuses, or conventions.]

The provisions providing for voter registration and for a notation on the ballot whether delegates are committed or not would seem to be constitutional under Congress' broad authority to regulate national elections under Article II, § 1 and the Necessary and Proper Clause of the Constitution. In Oregon v. Mitchell, Justice Black concluded that Congress under such constitutional provisions was fully empowered to make or alter state regulations in national elections, to supervise such elections, and to provide for voter qualifications.97 [See, e.g., H.R. 251, § 3(c).]

The provision that would condition the eligibility to receive matching payments on an agreement of a presidential candidate to: (1) agree to enter his name in at least one state primary in every region and (2) notify the Federal Election Commission which primary he intends to enter, would seem to be constitutional for the same reasons that the Supreme Court in Buckley v. Valeo upheld the public financing provisions and certain eligibility requirements for such public financing in presidential primary and general elections.98 According to the Buckley Court, the public financing provisions which included certain eligibility requirements such as expenditure limitations were constitutional in that they were means by which Congress could reform the electoral process under the General Welfare Clause of Article I, § 8 and could decide which expenditures will promote the general welfare of the United States.99 [See, e.g., H.R. 251 § 4 which would add another requirement for eligibility to receive primary matching payments for presidential candidates.]

The provisions in the 99th Congress legislation regulating presidential primaries that concern such matters as: enforcement by the Attorney General, the promulgation of regulations by the Federal Election Commission, clarifying definitions, and the effective date would not seem to pose any constitutional problems.

95 A "caucus" is defined as: "A meeting of the legal voters of any political party assembled for the purpose of choosing delegates or for the nomination of candidates for office." Black's Law Dictionary, 5th ed. (1979), p. 199.

96 450 U.S. at 121-122; 419 U.S. at 489.

97 400 U.S. at 122-123.

98 424 U.S. at 90-92. See 26 U.S.C. §§ 9001-9012 (presidential elections campaign fund for the general election) and 26 U.S.C. §§ 9031-9042 (presidential primary matching payment account). 99 424 U.S. at 92-93.