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May 06, 2024 ABA Task Force for American Democracy

Political Reforms to Combat Extremism

Richard H. Pildes

This Working Paper identifies and discusses a variety of institutionally focused ideas to reduce extremism in American politics. In looking at the sources of extremism, there are both top-down sources (meaning the actions and rhetoric of those hold public office, in particular) as well as bottom-up sources (meaning extremism that emerges in the larger political culture). An institutionally focused effort to combat top-down extremism would need to focus on how the structural features of American politics (such as how we conduct our elections) enables or encourages extremist behavior and rhetoric. For many decades, empirical research has confirmed that the political cues that come from politicians strongly influence the beliefs of citizens. Hence, figuring out how to lessen extremist rhetoric at the top can play a large role in lessening it elsewhere in society.

The bottom-up source of extremism typically originates through individuals using newer communication technologies, such as social media and cable and satellite networks, and moves outward (and upward) from there. Given the First Amendment, mitigating bottom-up extremism in our politics and political culture, is difficult to do through our legal system. Instead, these sources extremism need to be addressed through means such as education and working to change what is viewed as acceptable behavior in our public discourse over the issues facing our country, both of which can be hard to accomplish. Accordingly, this Working Paper focuses on what can be done to combat extremism at the top of politics – the easiest place in which to have an impact. Regardless of how extremism is addressed, reducing it is critically important, because extremist forces make it difficult for government to function effectively and deliver for citizens on the issues they care most about, while also creating a tribalistic style of politics that risks descending into threats of violence if not actual violence.

Problem Statement

What can be done to dis-incentivize irresponsible and extremist rhetoric and positions amongst elected officials and candidates for elective office?


Understanding the rise of political extremism in the United States—and measures to combat it—raises questions about the causal relationships between political culture, political elites, the information economy, and the institutional design of politics. To be clear, partisan polarization is not necessarily the same as extremism. The political parties might be polarized in the sense that they are clearly ideologically distinct from each other and ideologically coherent internally. But that need not entail extremism, which has more to do with the substantive positions elected officials might take (such as denying the legitimacy of free and fair elections), or the treatment of political opponents as enemies rather than as legitimate opposition.

That political elites, such as members of Congress, have become highly polarized ideologically is unquestionable. The process of polarization began in the 1980s and has increased relentlessly ever since. Since the Tea Party caucus entered Congress after the 2010 elections, there has been little overlap in congressional voting patterns between Democrats and Republicans. As a result, the political process has become more and more dysfunctional. This is obvious during times of divided government, a situation we have faced 75% of the time since 1968. But even during unified government, the filibuster rule in the Senate continues to make the legislative process difficult. Major congressional action even during unified government now sometimes takes place via spending measures, rather than regulation, because the former can be enacted through the reconciliation process, which bypasses the filibuster. Moreover, it is not just elected officials who have become so polarized. The citizens most active in politics, such as those who donate money or work on campaigns, are also highly ideological and polarized.

All this suggests that elite driven or top-down polarization and extremism plays a major role in creating the broader, current political culture of tribalistic enmity. To the extent affective polarization is driven from the top down, this makes all the more important the institutional framework within which political competition takes place and within which certain types of candidates rather than others are likely to be more successful. This institutional framework also creates an incentive structure that affects which potential candidates decide to run for office, which approaches to campaigning are most likely to be successful, which candidates get elected, and the governing choices elected officials make with re-election calculations in mind.

Given the top-down effects of political elites on mass political culture, and the responsiveness of candidates and elected officials to electoral incentives, a focus on institutional-design reforms to combat elite extremism therefore offers an important point of leverage in seeking to combat the current tribalistic nature of American political culture. At the same time, even if institutional reform can modify the incentives of political elites, we should remain humble about the extent to which those changes can dramatically change a political culture saturated with cable television, talk radio, and social media.

At the outset, political extremism can be defined in at least two different ways. The first is substantive, based on particular actions or rhetoric (this is sometimes called “normative extremism”). Those who deny the legitimacy of the 2020 election, refer to political opponents as “baby killers” or “religious nuts”, for example, might be characterized as substantive extremists. The second is more relative: those who lie at the ideological poles of the political parties, regardless of the specific substance of the positions they take (this is sometimes called “empirical extremism”). Institutional-design or electoral related reforms necessarily focus on that second conception of extremism. It is difficult to imagine acceptable institutional reforms that would be viewpoint based and capable of targeting the first type of extremism (one such example is the disqualification provision of Section 3 of the Fourteenth Amendment, though it applies only to the limited number of those who formerly took the oath of office and raises the question of what constitutes engaging in insurrection or rebellion).

Even though institutional-reform measures necessarily focus on the second conception of extremism, they will indirectly affect the first type as well. Those who are substantively extreme tend to come from the ideological wings of the parties. But institutional reforms of the type discussed here will necessarily be overly inclusive; they will make it more difficult for ideologically more extreme candidates in either party, even if they are not extreme in the substantive sense.

Possible Solutions to Reduce Top-Down Extremist Rhetoric and Positions

Competitive Election Districts

Over the last decade, a great deal of reform effort concerning redistricting has focused on constraining partisan gerrymandering and ensuring outcomes that are fair in partisan terms. However, when partisan gerrymandering becomes the exclusive focus of reform, it can eclipse the importance of creating competitive districts. Constructing election districts to be competitive, where possible, is another element of institutional design that can help reduce polarization and extremism. Competitive districts have generally been defined as those in which the winning candidate receives 55% of the vote or less (given increasing partisan loyalty among voters, which means fewer voters shift back and forth between the parties, swing districts today might have to include no more than 53% of likely voters for one party to be competitive).

Limiting partisan gerrymandering is important, but a map can produce fair partisan outcomes with every seat being completely safe for one party or the other. The dynamics and incentives for candidates running in competitive districts are dramatically different than those candidates face in safe districts. For competitive seats, candidates know they must win over enough voters in the center, who might swing to either party, while also holding on to their base. If they move too far toward the wings of their party, they risk losing the centrist voters needed to win. These dynamics not only weaken the power of the wings of each party but also create incentives for more centrist candidates to run in the first place. Competitive districts also make legislators more responsive to changes in voter preferences; if public opinion on important policies shifts by five points, legislators in competitive seats who want to keep or gain office will need to respond to that change.

In safe seats, by contrast, incumbents’ main threat comes from being “primaried.” Given the make-up of primary voters, that threat mostly comes from the ideological poles of their party. As the authors of a recent book titled “Rejecting Compromise: Legislators’ Fear of Primary Voters” find: “Legislators believe that primary voters are much more likely to punish them for compromising than general election voters or donors.” Donald Trump made this point in characteristically bald form in his Jan. 6 speech on the Ellipse, when he mainly attacked Republicans who would not vote to object to the counting of electoral votes: “[I]f they don’t fight, we have to primary the hell out of the ones that don’t fight. We primary them.”

When the major competitive threat that safe-seat incumbents face is from the ideological wings of their party, little incentive exists to appeal to the center of the political spectrum. Primary voters in safe-seat districts also have less incentive to compromise and back moderate candidates because the party’s candidate will win the general election regardless of where they fall along the party’s ideological spectrum. In turn, moderates are less likely to run in the first place, because they know they can’t survive the primary electorate.

To be sure, it’s not possible to make all districts competitive. The Voting Rights Act requires, where voting is racially polarized, the creation of districts likely to elect the preferred candidate of the minority community. Those districts are generally safe seats for Democrats. In addition, given the extent to which voters have sorted themselves geographically along partisan lines, creating competitive districts in some areas might not be possible or would require unusually shaped districts. But if the number of competitive seats were simply doubled, with about one-third of Congress, rather than the current 17%, elected from competitive districts, the dynamics on Capitol Hill would change considerably.

Overlaying all of this are the findings of Professors Brandice Canes-Wrone and Kenneth Miller that national political donors are much more polarized than the donors within a member’s district. Specifically, they found that in competitive districts representatives respond more to the preferences of their constituents, while in safe seats representatives are more responsive to the preferences of this highly polarized national donor class. In other words, in safe seats, members can defect more from their constituents’ preferences and embrace the more ideologically extreme positions of their national donors. This is not surprising: if you’re going to win a safe seat with 70% of the vote, you have a lot of slack to satisfy your national donors with positions your constituents don’t support, even if your victory margin winds up dropping next time by several points. But if your district is competitive, you can’t afford to stray much from the preferences of your constituents. All of which implies that competitive districts can decrease the influence of national political donors.

In summary, those who cover Congress most closely, congressional members themselves, and the most recent work in political science all confirm that members from safe seats tend to be more extreme than those elected from competitive districts. One institutional-design way to combat political extremism is therefore to emphasize the creation of competitive districts, alongside concerns for partisan fairness.

Instant Runoff Voting

One way to avoid factional candidates winning office is the use of runoff elections. With runoff elections, the top two candidates in the initial round of voting move on to a second round, which pits them head-to-head. The winner thus must be supported by a majority of voters in this final round of the election process.

After WWII, a majority of countries that directly elect a President shifted to this type of two-round election system, precisely to ensure winning candidates were supported by a majority of the electorate. This was in response to the view that Hitler had achieved power in Germany as a factional, plurality-winning candidate without ever receiving a majority of electoral votes. France is perhaps the most prominent example of such a system. The parties’ candidates compete in a first round, but if no one wins more than 50% of the vote (which has not happened since the runoff system was created in the Fifth Republic), the top two candidates compete in a second round two weeks later.

In the United States, a few states use runoff general elections, with Georgia being the most visible example in recent years. When these runoff requirements were first adopted in southern states, they were clearly designed to make less likely the success of Black candidates. But runoff elections today serve the appropriate goal of making less likely the success of factional candidates by ensuring the winner must have majority support. Seven states require even primary-election winners to receive a majority of votes and thus require runoff elections in the primaries if no candidate reaches that level. But most states do not, and in open-seat primaries, about 36% of primaries are won with only a plurality of the vote. In competitive districts, these candidates perform slightly less well in the general election than majority-primary victors, which is another benefit of competitive elections. But in non-competitive districts, there is little penalty for being a factional winner in the primary, if your party dominates the district. Matt Gaetz and Marjorie Taylor Greene, for example, won their first general elections after winning primaries with less than a majority of the primary vote.

In the United States, however, the turnout in runoff elections tends to drop off significantly from the general election (recent Senate runoffs in Georgia, in which partisan control of the Senate was at stake, are an exception). This is not the case in countries like France, in which turn out in the second round of their presidential election is frequently higher than in the first. With much lower turnout, runoff elections run the risk of unrepresentative electorates becoming the decision-maker. In addition, a second round of elections imposes significant costs on strapped state and local budgets, and requires election administrators, including poll workers, to run a second election.

Instant runoff voting (“IRV”, also called ranked-choice voting or “RCV”) can be understood as an alternative to runoff elections. Its justification is much the same: we should prefer a voting system that rewards candidates who have the broadest electoral appeal, rather than more factional candidates. In theory, a system should select the candidate who would win a head-to-head matchup against each of the other candidates (if there is such a candidate). This is technically known as the Condorcet winner (after the Marquis de Condorcet, a French philosopher and mathematician), who is the candidate who would win a majority of the voters when pitted directly against each other candidate. This is another way of saying winning candidates should reflect the preferences of the median voter.

IRV essentially constitutes a multi-round election on a single ballot. Voters rank candidates in order of preference (as many as they choose to rank), and when poorly performing candidates are eliminated the voter’s vote on that ballot is transferred to the voter’s second-ranked preference. The process continues until a candidate (in a single office election) receives a majority of the votes.

There are several different forms of IRV, however, and the differences between them make a difference in terms of whether they identify the candidate a majority of voters prefer. In the current form of IRV used throughout the United States, the candidate who receives the fewest first-place votes is eliminated; the votes on those ballots are then redistributed to those voters’ second-choice preferences. The process is repeated until a candidate wins a majority of the votes in the final round of tabulation.

But how these different forms of IRV function in practice depends on the distribution of preferences among voters. When voters are aligned in a normal, bell-shaped distribution, with a substantial number of voters in the center and a smaller number at each wing of the distribution, the currently used form of IRV works well to identify and reward the candidate a majority prefers. If the electorate is split 30-40-30, then one of the two candidates at the wings will be eliminated and their voters’ second-choice preferences – presumably predominantly for the centrist candidate – will go to that candidate, who will be elected.

But when voters themselves are highly polarized, so that most voters are located toward either ideological pole and the center electorate is small, the currently used system of IRV will not necessarily reward the candidate with the broadest electoral appeal. In the first round, that candidate (call them the “moderate candidate”) might well receive the fewest first place votes and will be eliminated – even though that “moderate candidate” would defeat either the hard left or hard right candidate in a head-to-head match. For example, if 40% prefer the hard-left candidate, 40% the hard-right candidate, and 20% the “moderate candidate”, the centrist would be eliminated in the first round – even though 60% prefer the “moderate candidate” to either candidate from the ideological poles. Thus, the form of IRV matters a great deal if the goal is to avoid anointing factional candidates and to reward “Condorcet” winners.

Elimination of the Traditional Party Primary

The traditional party primary has become a significant source fueling the rise and success of more ideologically extreme candidates. Studies show that incumbent moderates on the Republican side have increasingly been challenged in primaries. Similarly, studies show that moderates choose not to run in the first place when they perceive primary electorates to be too extreme for them to survive the primary. This has also led incumbent moderates not to seek re-election, as is the case for several Republican Senators who decided not to seek re-election in 2022. In addition, to avoid being primaried in the first place, incumbents tack to the political extremes to pre-empt such challenges. In Rejecting Compromise, Sarah Anderson, Dan Butler, and Laurel Harbridge-Yong found, based on interviews with members of Congress and aides, that what matters to incumbents is the perception that they risk being primaried if they compromise. Incumbents pre-emptively change their positions because they perceive they will be challenged, whatever the statistics show about the factual likelihood that they will be challenged.

The early 20th century reformers who gave us the direct primary viewed it as a way to avoid the corruption of party machines that chose nominees. They believed primary elections would compel citizens to learn more about candidates and become more engaged. But despite these romantic notions, voters are not eager to engage in primary elections. Turnout in primaries is notoriously low, as low in mid-term primaries as 15% of eligible voters in 2014, rarely above 20% in the last decade, with a high of 22% in 2022. Studies of whether primary voters are more ideologically extreme than other supporters of that party are mixed, though it’s widely assumed that they are. That assumption exists because those most actively engaged in political participation tend to be more ideological than those less involved, as a general matter. But empirical evidence does strongly document that primary voters are highly unrepresentative of general election voters; they are older, wealthier, whiter, and have higher levels of political knowledge. To circumvent the effects of low turnout, unrepresentative primary elections should be a major focus of reform efforts.

Certain previous reform efforts designed to make the election of more moderate candidates more likely do not seem to have worked in practice. Little evidence supports the frequently made claim, for example, that open primaries (in which independents can vote) generate more ideologically moderate candidates. The evidence from the two states that currently use Top-Two primary structures, California and Washington, is mixed about whether the system leads to election of more moderate candidates. Some studies of California conclude it does not; others, that it does. The studies of Washington do not suggest their Top-Two primary system has led to election of more moderate candidates. The Top-Two system also can create a general election in which both candidates come from the same political party.

Instead, the most promising form for eliminating the negative effects on extremism of the traditional primary structure is the Top-Four or Top-Five primary. In these systems, all candidates run in a single primary; candidates can identify themselves in partisan terms or as non-partisan. The top four or five in the primary then go on to the general election, in which ranked-choice voting is used to determine the winner. The theory behind this reform is that any candidate with a strong level of statewide support will get through to the general election, and that with RCV the candidate whom a majority of voters support will be elected. This should avoid eliminating candidates prematurely who would have majority support in the general electorate and avoid plurality or factional winners in the general elections. Voters in Alaska adopted Top-Four in 2020, which took effect in the 2022 election cycle (voters in Nevada endorsed Top-Five, but have to endorse it again in a second election before it becomes effective). Thus far, the evidence suggests this new primary structure is working as predicted, though we have only one election cycle of data.

In the most high-profile race, incumbent Senator Lisa Murkowski was re-elected, even though she would likely have been eliminated had the state used its prior, closed party primary. She was one of the two figures, along with Rep. Liz Chaney, whom President Trump targeted most aggressively, and the Trump-supported Republican, Kelly Tshibaka, would likely have won a traditional primary. But under the new system, Murkowski was one of four who made it to the general election, and because she has broad appeal to independents and even some Democrats, she won under the RCV system. She received 70% of the second-place votes of the Democratic candidate, and when that candidate was eliminated in the RCV process, that high level of cross-over party support transferred to Murkowski and enabled her re-election. To be sure, she might have won had she run as an independent candidate, but the Top-Four structure provides an easier path for getting on the ballot.

Less well known is how significantly the new system also affected the twenty-person state senate. Republican Cathy Giessel had been a former state senate president and served for three terms from a center-right district in Anchorage. She had been considered a highly effective legislator but was defeated in 2020 in a traditional Republican primary by a far more conservative, Trump-endorsed candidate who attacked her for compromising too much. Once the Top-Four system was adopted, she announced a comeback with the intent “to campaign as someone who can work across party boundaries” and form broad electoral coalitions. In the new primary under Top-Four, three candidates came out effectively tied, two Republicans and a Democrat. When the Democrat, who had finished third, was eliminated, about 40% of her vote went to Giessel, while only 8% went to her more hard-line conservative opponent. Giessel thus won election with 57% of the final vote.

Similarly, in another Senate seat in a conservative rural area, three conservatives ran in an open seat. Of the two dominant candidates, one was considered considerably more conservative than the other. When none of the three received a majority of the vote and the third candidate’s votes were redistributed, the more moderate conservative – Jesse Bjorkman -- won with 53.6% of the vote.

These results also directly affected policy. Giessel was respected enough that she became Senate Majority Leader. She and Bjorkman also became key members of a moderate, bipartisan Senate coalition of nine Republicans and eight Democrats (17 of the 20 Senate seats, which excluded three very conservative Republicans). This coalition agreed to avoid contentious cultural issues on the right and left, such as abortion and transgender issues, and to focus on the state’s challenging economic issues. The state passed a consensual budget that differed sharply from prior extreme budget reduction proposals. As one study concludes, “legislative outcomes were noticeably less contentious and more moderate in ideological terms.”

As another form of the effort to minimize the role traditionally structured primaries have in filtering out candidates a majority of the electorate might prefer, states might also eliminate sore-loser laws, if they do not adopt a single primary election. Sore-loser laws prohibit a candidate who loses a party primary from running in the general election; currently, 47 states have such laws. One justification for such laws was to avoid the fragmenting of a party’s vote in the general election between two candidates, which could enable election of a plurality-winner candidate from the other party. Now that ranked-choice voting is well known, however, states could couple permitting defeated primary candidates to run in the general election with RCV. That would avoid these spoiler effect concerns and ensure a candidate with the majority of electoral support would win. Eliminating sore-loser laws would thus enable defeated primary candidates in the traditional primary system to establish, nonetheless, that they had the majority of support in the general election.

Fusion Candidacies

One way of testing whether there is significant support for more moderate political parties is by reviving the possibility of political fusion or what’s also known as cross-endorsement.” With fusion, two parties can both endorse the same candidate on the ballot if both parties consent to doing so. Voter can then vote for that candidate under either party label. Thus, if a moderate-left or moderate-right party wants to form, because it believes the Democratic or Republican Party has moved too far away from its preferred position, this moderate party would not have to run its own candidate. Instead, it could cross-endorse the candidate the major party closest to its preferences has nominated. If it’s a Moderate center-left party, for example, voters could vote for the candidate the Democrats have nominated but could do so under either the Democratic party ballot line or the Moderate party ballot line.

The advantage of fusion is that it overcomes the problem third parties face in the American system. With our winner-take-all elections, voters do not want to “waste” votes on parties or candidates who might be capable of receiving 20% of the vote, because voters at the end of the day want to vote for a candidate they believe has a realistic chance of winning. But with fusion, voters can vote for a third party without “wasting” their vote. A voter who wants to vote for the “Moderate Party” can do so without that vote being wasted because it counts at the same time toward the vote total for a major party candidate. But candidates and officeholders pay attention to where their votes come from. And voting is far more meaningful a signal than what voters might say in public-opinion surveys. If a candidate knows he has won with 30% of his support coming from the Moderate Party, he will pay much more attention to the policy preferences that party represents. Permitting fusion candidacies can thus be a way of pulling either party back toward the center, if there is significant voting support for doing so.

Fusion was widely used until the late 19th century, in the era when the political parties printed and distributed ballots. With the advent of the secret ballot, states took over the ballot, which meant state legislatures began to regulate it. Almost immediately the two major parties banned fusion, in order to concentrate all voting within the two parties (this was one area where the major parties shared a common interest). Today, only New York and Connecticut permit fusion.

To revive fusion, legislatures would either have to change these policies or courts would have to strike down bans on fusion as unconstitutional. The argument is that such bans violate the First Amendment associational rights of party members to be able to choose their preferred nominee. The Supreme Court in a 6-3 decision in 1997 held that fusion bans do not violate the federal Constitution, Timmons v. Twin Cities Areas New Party, 520 U.S. 351 (1997), although later cases are arguably in tension with Timmons. Given this, current efforts to revive fusion through the courts center on arguments in the state courts based on the state constitution (such litigation is currently taking place, for example, in the New Jersey courts).

Targeted Campaign Finance Reforms

One of the most important facts about our privately financed election system is that individual donors are much more ideologically extreme than the population as a whole. This is one of the most robust social-science findings in the empirical campaign-finance literature. Donors are more ideologically extreme even than non-donor partisans of the same party. Money from individual donors is also the most ideologically motivated source of funds. Traditional business PACs are access-seeking donors; they tend to give to powerful incumbents of each party. Political party committees seek to maximize their party’s control of political bodies; they give to competitive challengers and incumbents, regardless of their ideological make-up, because partisan control is the motivating goal.

On top of this, individual contributions and spending have become a much larger share of campaign funds in recent decades. This is partly due to the nationalization of elections, the explosion of small donor based funding through the internet, and the rise of unlimited funding for SuperPACs, whose main source is individual donors. Individual contributions from outside a district or state are more ideologically motivated, given the lack of motivation to care about district-specific concerns. In my work, I have shown that more ideologically extreme candidates and members of Congress are most dependent on small donors. I noted earlier that affective polarization is largely driven from the top down, and small donors in particular appear to respond to the outrage and extremism from candidates and incumbents that go viral on the internet and social media.

Small donors are more likely than large donors to make “impulse” contributions in response to politically viral moments; the culture of outrage that generates attention on social media provides the same dynamic that turns on the spigot of small donations. But whether or not small donors are more likely than large donors to fuel the ideological extremes of the parties, the fact remains that our privately financed system of funding, which is so dependent on individual donors, contributes to polarization and extremism.

Given this, properly designed campaign-finance reform, whatever its other virtues, could also have systemic effects in mitigating polarization and extremism. But that depends on the form reform takes. Any system of campaign-finance reform that ties itself to the contribution patterns of individual donors would continue to fuel the ideological extremes. This would be true of the most common current reform proposal among many reform groups, a small-donation matching funds program. In such a program, the federal government would provide a 6:1 match for donations below $200 (or $250, depending on the proposal), up to a certain level. The Democrats’ major voting rights reform bill, the For the People Act, included such a proposal. This proposal is based on the system New York City has used for a number of years, which was recently expanded in New York to the state level. But the dynamics of local government elections are very different from national elections for Congress.

The appeal of a small-donor matching system is that it would enhance political equality and participation by subsidizing the contributions of small donors. But because this system would base public funding on the preferences of individual donors, it would further fuel the polarization and extremism in our politics. Given the threats American democracy currently faces, we should be hesitant about even well-intentioned reforms that would have those consequences.

For those unhappy with the effects of our current system of privately financed elections, the alternatives to small-donor matching programs are more traditional forms of public financing, currently used in about ten states or so. In these systems, candidates must first raise a small, threshold amount from a small number of donors; virtually all credible candidates are able to do so. They then become eligible for grants of public funds. Because these funds come from the general treasury, they are ideologically neutral, unlike public funding that would be based on the preferences of individual donors. In accepting these funds, candidates agree not to raise additional money outside the public-financing system.

To be sure, there are difficulties in designing an effective system of public financing, especially given certain constitutional constraints the Roberts Court has imposed. The system must be able to keep up with the ever-rising costs of campaigns and be funded at high enough levels to make candidates want to accept public funding; given current constitutional doctrine, participation must be voluntary. But well-designed systems of public financing that reduce the weight of individual donors can help mitigate polarization and extremism. Most major democracies do not rely on individual contributions to finance their elections. Instead, they primarily rely on public financing, which is typically run through the political parties. The reforms of the 1970s did bring us public financing of presidential campaigns, but the inability of Congress to keep that system updated with the rising costs of campaigns, and the increasing ability to raise private funds, eventually led candidates to reject the system, which began to become irrelevant when Barack Obama dropped out of public financing in the 2008 general election.

Congress is unlikely to enact any major legislation in the campaign-finance area (or in the political reform area more generally). Thus, movement toward public financing will have to continue to come at the state level. If those reforms come to be seen as successful, they might eventually create demand to adopt them at the national level.

Modifications to the Presidential Nominations Process

One of the most radical changes we made to our democratic process was the shift to the presidential nominations process that took place in the 1970s. That was when the parties moved to the current process of using primary elections (and a few caucuses) to choose the party’s nominee. For 170 years before that change to a purely voter-based system of nomination, elected party figures from around the country played the dominant role in deciding who the party’s nominee would be. These figures performed a type of “peer review,” in which the judgments of those experienced in government at the national, state, and local level played a major role in vetting and selecting the party’s nominees. Even during the era in which the political party conventions were actual decision-makers, there were some primary elections, which allowed candidates to demonstrate their electoral appeal, but delegates chosen through primary elections never constituted a majority of the delegates.

At the time of the shift to primaries, renowned political scientists with expertise in the nominations process expressed concern that eliminating any role for elected party figures in the nomination process “might lead to the appearance of extremist candidates and demagogues, who unrestrained by allegiance to any permanent party organization, would have little to lose by stirring up mass hatreds or making absurd promises.” Many other established democracies continue to give elected party figures at least a filtering, if not decisive, role in selecting the party’s standard bearers. In the U.K., for example, Conservative Party members in Parliament first decide on two candidates as potential party leaders, and party members then vote as between those two candidates. The Labor Party used to require potential candidates to receive the approval of 15% of the Labor members in Parliament before party members could then select among such candidates for the final choice; recent changes have created a more complex system in which elected party figures still play a vetting role (for both the Conservative and Labor parties, as for most parties in other democracies, the “party electorate” is much smaller than in the United States, because party membership requires paying a fee or dues).

Building back in some role for elected party figures can reduce the risk of extremist candidates winning a party’s nomination. Yet building in such a role in a political culture that has gotten used to voters having the exclusive power to choose the nominees is difficult. One way of doing so without undermining the role voters have come to assume would be to change the way delegates are allocated in response to the primary vote in various states. These changes would be designed to make the delegate allocation more proportionate to the actual vote. One of the effects of such changes would be to increase the possibility of a brokered convention. If no candidate receives a majority of the delegates before the convention, the convention would then be brokered; the delegates would then have to decide how to choose among the various candidates.

On the Republican side, primaries become winner-take-all affairs after a certain date in the primary cycle. This enables candidates who might win only a plurality of the vote in a state to capture all that state’s delegates, given the winner bonus that follows from winner-take-all rules. On the Democratic side, delegates are allocated proportionately throughout the process. But candidates who receive less than 15% of the vote receive no delegates, with those delegates then going to the more dominant candidates instead. This allocation rule also gives bonus delegates to the candidates who receive more than 15% of the vote.

Awarding delegates in a more directly proportionate way would eliminate giving extra bumps up to the winning or dominant candidates. It would avoid factional candidates being able to capture all of a state’s delegates through winner-take-all allocation rules. When primaries are significantly contested, these changes would make it less likely a candidate would enter the convention having already won a majority of the delegates. No power would be taken away from voters; indeed, the system would reflect their votes more accurately. But the votes in primary elections would be somewhat less likely to definitively determine the outcome, particularly when multiple, serious candidates compete.

For these changes to make sense, the process of selecting convention delegates would also have to change. Currently, the conventions do not matter; delegates serve mainly in a ceremonial role merely to reflect formally the popular vote in the state. But if the possibility of brokered conventions returns, delegates would have to be prominent enough party figures—elected state party leaders, such as Governors, for example—to have the legitimacy and support to help choose a nominee in the midst of a contested process that had not yielded a clear winner. In the event no candidate came to the convention with a majority of delegates, party leaders would broker interests within the party in an effort to find a widely acceptable nominee. In doing so, these party leaders would likely value candidates who appealed to a range of interests or factions within the party.

These changes would not stop ideologically extreme candidates able to win a majority of delegates through the direct primary process. They would be far from amounting to going back to a full peer-review process. But at a minimum, these changes would make it less likely a factional candidate could automatically capture the nomination. And when conventions were contested, the candidate who emerged would also likely reflect a range of interests within the party.

Other potential ways exist of building back in more of a voice for elected party figures from around the country. In theory, Republicans could allot a certain number of spots to super-delegates, as Democrats currently do, and Democrats could expand the role of their own super-delegates. The Democrats added a role for superdelegates starting with the 1984 convention, after the primary system was perceived to have produced two weak nominees in the first elections under that new system. Superdelegates constitute about 15% of the Democratic convention, but they have never acted contrary to the vote of the primary voters. Under recent rule changes, the Democrats have constrained the role of superdelegates; they cannot vote on the first round of balloting but only if the convention goes to a second round. Thus, changes that would add to the role of superdelegates would run directly against the political culture that has developed since the 1970s, in which voters now feel entitled to have their votes determine the outcome.

This document has been submitted to the Task Force for American Democracy for consideration and has been posted and/or circulated for information purposes only. The views expressed herein represent the opinions of the author(s) and not those of the Task Force or the ABA. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities. This publication is freely available to download, copy and distribute provided there is attribution to the ABA Task Force for American Democracy, and provided this notice is reproduced on all copies.

    Richard H. Pildes

    NYU School of Law

    Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU School of Law and one of the nation’s leading scholars of constitutional law and a specialist in legal issues concerning democracy. He is a former law clerk to Justice Thurgood Marshall and was also a member of President Biden’s Commission on the Supreme Court of the United States. His scholarship addresses nearly all aspects of the democratic process and the structure of American government. He is a co-author of the casebooks, The Law of Democracy and When Elections Go Bad, and an editor of The Future of the Voting Rights Act. In nearly 100 academic articles, he has written extensively on legal and policy issues concerning the structure of democratic elections and institutions, such as the right to vote; partisan and racial gerrymandering; the role of money in politics; the Voting Rights Act; the regulation of political parties; and the structure of alternative voting systems. Over the last decade, his writing has focused on the rise of political polarization; the dysfunction of America’s political processes and how to make American government function more effectively; the transformation of the presidential nominations process; and comparative perspectives on the challenges facing democracies throughout the West. He has successfully argued election law and voting-rights cases before the Supreme Court and lower federal courts, and he has testified many times to Congress on such issues. Professor Pildes is an elected member of the American Academy of Arts and Sciences and the American Law Institute and has been a visiting professor at Harvard, Yale, and the University of Chicago Law Schools.