Constitution Check: Who has the job of picking the candidates for the presidency?

Lyle Denniston looks at criticism over the selection process for the Fox News and CNN GOP debates and their selective inclusion of debate participants.

THE STATEMENTS AT ISSUE:

“The idea that they have left out the runner-up for the 2012 nomination, the former four-term governor of Texas, the governor of Louisiana, the first female Fortune 500 CEO, and the three-term senator from South Carolina due to polling seven months before a single vote is cast is preposterous. While Fox News is taking a lot of heat, the Republican National Committee deserves as much blame for sanctioning this process. They should not be picking winners and losers. That’s the job of the voters.”

– Statement by Matt Beynon, communications manager for the presidential campaign of former U.S. Senator Rick Santorum, on August 4 after the Fox cable TV network revealed the list of ten candidates it chose to take part in the first televised debate among Republican candidates for the White House. Candidate Santorum did not make the cut.

“The cable channels shouldn’t decide who gets to be president….It will be easy this year to identify the biggest losers in the GOP debates. They will be the candidates who aren’t on the stage…..Did we finally get rid of the meaningless Iowa straw poll only to substitute wild early debate maneuvering? And don’t think that many presidential contenders will forgo the numbers-inflating bluster. The stakes are simply too high: If a candidate can’t even make it to the debate stage, why would rational donors and volunteers continue giving money and time to what is apparently a lost cause?”

– Excerpt from commentary by Larry J. Sabato, a University of Virginia professor of politics, on Politico.com on July 16 amid efforts by GOP presidential candidates to boost their chances of being included in the first debate, being held tonight in Cleveland.

WE CHECKED THE CONSTITUTION, AND…

Since the 1830s, and probably even before that, the constitutional task of selecting those who will run for the U.S. presidency has been farmed out to someone other than the people acting directly – that is, to two major political parties.   Although George Washington sternly warned against that in his farewell address in 1796, the “spirit of faction” has long dominated national, state and local politics in America.

Under the Constitution, of course, the final selection of the president is not made directly by the people. After the candidates have been chosen (by a process long run by the political parties), the votes that people cast are translated into the decisive votes cast in the Electoral College. That final step is an indirect one, because the Founders thought it ought to be taken by the most civic-minded of political figures that they expected to serve as Electors.

It may have been inevitable, since the Constitution does not say how the candidates who get to compete are to be chosen and since direct nomination by the people probably would not work anyway, that an alternative selection system would arise. The politicians quickly took control of that alternative, so that the people would thereafter participate largely through the electoral processes run mainly by one or the other of two major parties (although the parties had to abide by state and federal laws that set up the machinery of voting).

This year, at least on the Republican side of the presidential process, the task appears to have been delegated even further beyond popular control: it has been handed to two cable TV networks, Fox and CNN. As Americans watch the first of the televised GOP debates tonight, and the next one in September, they will be witnessing an event designed by and for the media.   Media executives wrote the rules, without fully disclosing how the actual selection process was to work.

Some political and media critics have been complaining all along that this mode was subject to manipulation (both by the networks and by the candidates themselves), and lacked transparency.   At the core of their complaint, although it was not necessarily put in these terms, is that the choice of a nation’s leaders is a sovereign act of the people that the Constitution supposedly gave to them.   If that task is to fall to someone else, it at least should have the dignity, solemnity and accountability befitting a democratic republic.

It is true, of course, that the media has been given a large role in presidential debates for a good many election cycles, with media personalities chosen to conduct the Q&A and to try to keep the candidates within the rules set by the party sponsors or by a presidential debate commission.   And it also is true that some of those media interrogators have put more of themselves into the mix than perhaps was appropriate.

Was it inevitable, then, that the next step in the evolution of the system was to simply let the media take over? It has been suggested that the real reason the media got the job this time was that the Republican National Committee had concluded that it wanted to make the debates more manageable and more limited than the messy process that they felt had unfolded the last time around, and wanted someone else to take the heat of paring down the candidate list.

Even assuming that that is so, the next question is: what accounts for the media’s willingness to move from being the outside observer or watchdog of the election process, into becoming itself the actual manager? It is one thing to act as “moderator” of a debate, because that looks something like a normal press conference. But is it different when the media not only composes the event, but chooses who can take part in it?

To put this in constitutional terms, there is nothing in the First Amendment and its guarantee of freedom of the press that allows the media to be the maker of the news that it will cover.   The reason for that freedom – and this is elementary – is that the role of the press in a self-governing country is to provide the people with the information that they need to make the hard choices that they must make, in elections and in monitoring how their government works day to day.

As the Republican presidential debates this year have approached, a lot of media ink has been spilled and broadcast time used up in criticizing the fairness of the systems designed by Fox and CNN. It might also be in order to ask whether the systems are constitutionally defective, too.