Primary Perspectives: Nicholas Stephanopoulos Discusses the Presidential Nomination Process
Assistant Professor Nicholas Stephanopoulos gave the following speech at the Law School's annual Midway Dinner on February 4, 2016.
Good evening, everybody, and many thanks to Dean Miles for his generous introduction. It’s always a pleasure to attend gatherings of the Law School’s talented students and faculty. But even compared to the rest of these gatherings, the Midway Dinner is special. It’s special because it’s not just a celebration of you—your ability, ambition, and enthusiasm. It’s also an occasion with a purpose, an event with a point.
The point, as Dean Miles explained, is that law does not have a monopoly on social insight. Law does have great explanatory power, as I hope you’ve learned from your year and a half here. Law does change how you think about the world. And it does illuminate connections you didn’t see before, and forces you didn’t know were at work. But law is not the only field of study that does this. So do the humanities, by teaching you about the finest products of human intellect and creativity. So do the social sciences, by revealing the relationships among the many interlocking pieces of our civilization. And so do the natural sciences, by exploring the wonders of the world around, and within, us. It is to mark the contributions of all these disciplines, and not just of law, that we’re assembled this evening.
But this is all a bit too lofty. What does it really mean to say that the combination of law and another subject can produce more insights than either field alone? To answer this question, I thought I’d follow the advice of every writing coach and show, not tell, you. More specifically, I thought I’d take the area of law I know best, election law, and the non-legal discipline I’m most familiar with, political science, and apply them both to the topic that everyone is talking about this week. I’m referring, of course, to the presidential nomination process, which kicked off with Ted Cruz and Hillary Clinton’s victories in the Iowa caucuses on Monday. The New Hampshire primaries are next, and then it’s off to the races, literally, as voters around the country get their say in choosing the nominees.
Like most academics, I believe all good things come in threes. So rather than talk about the nomination process as a whole, I’ll divide it into three sub-issues: money, or how much is raised and spent by whom; voters, or who gets to participate in all the caucuses and primaries; and winners, or which candidates actually gain their parties’ nominations. I’ll also lay out three perspectives for each sub-issue: one for the informed layperson, a second for the election lawyer, and a third for the political scientist. In this way, I hope I’ll convince you that while law does improve our understanding, we learn even more when another field is added to the mix. That, again, is the thesis of the Midway Dinner.
So let’s start with money in politics. Any reader of the news, and any of you before entering law school, would know that presidential candidates are essentially professional fundraisers. They hold endless events for donors, they assemble elaborate hierarchies of bundlers, and they won’t stop e-mailing you if you have the misfortune of ending up on one of their lists. Any informed observer would also realize that there are other actors on the campaign finance stage: PACs, SuperPACs, rich individuals, dark money groups, and so on. These actors may not harass you for money as often. But they do seem to raise and spend it with little transparency and no limits.
The value of election law is that it explains why we have this odd system. Exactly forty years ago, in its infinite wisdom, the Supreme Court decided that donations to candidates can be restricted, but that independent spending can’t be. The Court’s reasoning was that contributions both convey less information than expenditures and are more likely to breed corruption. As a result, to borrow an analogy from Pam Karlan, presidential candidates are like a starving man at an all-you-can-eat buffet with only a tiny spoon for a utensil. They can eat (or spend) as much as they want, but they can serve themselves (or fundraise) only in dribs and drabs. Sticking with the analogy, SuperPACs carry a huge ladle rather than a tiny spoon. They can eat and serve themselves unlimited portions.
Now this analysis is fine as far as it goes. But it doesn’t go far enough. In particular, it doesn’t tell us what the consequences of money in politics are. To find out, we need to turn away from election law and to political science. When we make this pivot, we learn that presidential candidates in general elections barely benefit when they have a financial advantage. Their vote shares rise by only about one percent when they air many more commercials, or open many more field offices, than their opponents. But we also learn that the policy positions of presidential candidates are closer to the views of their donors than to the views of their non-donating supporters or the general public. When there’s disagreement between donors and non-donors, it’s donors who get their way.
These findings suggest that while voters can’t be bought, presidential candidates can be. The findings also illustrate the power of political science. On its own, election law has nothing to say about how voters and candidates are influenced by campaign funds. This blind spot can only be filled by the distinctive methods of another, non-legal discipline.
Next, let’s move on to the second of the topics I mentioned earlier: after all the money has been raised and spent, who actually gets to participate in caucuses and primaries. A layperson might think the answer is obvious. Democrats can vote in Democratic races, and Republicans can vote in Republican ones. An election lawyer would point out that this isn’t quite right. The Iowa caucuses are closed events, meaning that only voters registered with a party are allowed to take part. But the New Hampshire primaries are semi-closed, meaning that both registered party members and independents can cast ballots.
More importantly, an election lawyer would be able to explain why Iowa and New Hampshire have their respective systems. It’s not because one state government prefers closed elections, while the other government favors semi-closed ones. Instead, it’s because the Democratic and Republican parties of Iowa want closed races, while the Democratic and Republican parties of New Hampshire want semi-closed ones. If a state tried to compel a party to accept a primary type that the party didn’t want, this compulsion would violate the party’s First Amendment freedom of association. For exactly this reason, the New Hampshire statute includes an opt-out clause, which both parties have exercised, enabling them to switch from closed to semi-closed primaries.
As before, this legal analysis is helpful but doesn’t tell the whole story. Specifically, it doesn’t show whether it matters whether a primary is closed, semi-closed, open to all voters, or even more exotically structured. Fortunately, this is a subject that political scientists have studied for years. What they have found is surprising to most election lawyers: namely, that very similar nominees are chosen no matter which primary type is used. More closed systems don’t produce more extreme nominees, and more open systems don’t produce more moderate ones. This is because the primary electorate stays about the same regardless of primary type, and because many primary voters can’t distinguish between extreme and moderate candidates.
These results make the usual legal debate look a bit silly. The reformers who argue that open primaries are a cure for polarization, the parties that resist admitting outsiders into their elections, the judges who write long opinions in these cases—all of them are essentially fighting over a hill of beans. And again, we only know this thanks to the work of another, non-legal field.
Finally, let’s turn to the third topic, and the one that attracts by far the most attention: which candidates will actually win their parties’ nominations. A layperson would probably consult the polls and the media’s coverage of the campaign. Who’s up, who’s down, who made a gaffe, who bitingly insulted a rival (answer: probably Trump), and so on. An election lawyer would claim agnosticism. As long as the correct procedures were followed, the lawyer would be uninterested in the identity of the nominee. In fact, this might even be a point of pride. Law is supposed to be distinct from politics—even as it inevitably shapes, and is shaped by, the electoral domain.
A political scientist, though, would have a lot more to say about this subject. In terms of empirics, the Nate Silvers of the world have created models that predict how each candidate will perform in each race. These models improve on polls by including many additional variables that are linked to candidate support: incumbency status, economic conditions, state demographics, endorsements, fundraising totals, favorability ratings, and so on. The sheer number of these variables shows how many forces may be responsible for election outcomes.
I say “may be” because political science also has a hot new theory of presidential nominations that tries to boil down all these factors into a single overarching explanation. This is that a so-called “invisible primary” takes place before and alongside the actual primaries. During this process, influential party members across the country—elected officials, interest group leaders, big donors, pundits, and so on—deliberate informally as to who the best nominee for the party would be. When these insiders come to a rough consensus, they indicate their choice to voters through endorsements, the flow of campaign funds, and favorable media coverage. Voters then respond to these cues and support the candidate selected by the insiders. In the end, it looks like voters have picked the nominee, but really the party has decided.
Now it’s true that political science provides a perspective on winning the nomination that’s missing from both election law and a layperson’s knowledge. If you haven’t noticed yet, that’s the theme of this talk: that election law may account for why we have certain electoral practices, but political science is needed to determine these practices’ real-world effects. We gain a deeper understanding by considering both fields in unison than by taking either one in isolation.
However, it may have occurred to you, in the wake of the results in Iowa, that neither political scientists’ fancy models nor their elegant theory is looking very good today. The models all thought that Donald Trump would beat Ted Cruz, and that Hillary Clinton would win comfortably over Bernie Sanders. Similarly, Republican insiders don’t seem to have decided yet whom they want as their nominee, but they have overwhelmingly concluded that they don’t want Trump or Cruz. And yet they were the top two finishers in Iowa. On the Democratic side, Hillary has literally a hundred times more endorsements than Bernie, but ended up tied with him in Iowa. The Democratic voters evidently didn’t follow the cues of the Democratic elites.
It’s possible, of course, that both the models and the theory will redeem themselves over the coming months. But I want to close on a note of humility based on their failure so far. At the Midway Dinner, we celebrate the insights of non-legal disciplines, and we urge you to complement your legal education with training in the humanities, the social sciences, and the natural sciences. But it’s important to remember the limitations of both law and all these other fields—to keep in mind the many things we still don’t know and can’t explain. So by all means, let’s toast tonight to the entire university’s contributions to learning. But let’s also raise a glass to all the work that remains to be done. Thank you.