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How to Solve America’s Constitutional Crisis: End the Permanent Campaign

Non-stop electioneering inevitably overshadows our existing government.

Illustration by Lo Cole

The death of Justice Antonin Scalia has triggered an endurance test, the political version of a dance marathon, where we discover just how long the Republican-controlled Senate can leave a Supreme Court vacancy open. It took all of an hour for Majority Leader Mitch McConnell to vow to not replace Scalia for the remainder of President Barack Obama’s term. This throws the current and possibly future Supreme Court sessions into ineffectual chaos, leaving in place markedly different interpretations of the law in different appellate court districts. 

But the Scalia appointment is only the latest measure in which congressional Republicans have written the president out of the government. Obama has filled only one vacancy at the appellate court level since the Republicans took over the Senate at the beginning of 2015. Earlier this month, McConnell effectively shut down the legislature for the year, arguing against moving forward on bills even if they have bipartisan support. Republicans on the Budget Committee neglected to hold hearings on the president’s final budget for the first time in the history of the modern budget process.

Not only is there no precedent for keeping a Supreme Court seat open in an election year; there’s no precedent for any of these examples, which basically rob the president of the fourth year of his term. The treatment of Obama is an historical outlier. Obviously, increased polarization and the failures of the constitutional system accounts for some of this, but I think there’s something else at work: the multi-year spectacle that has become our presidential campaigns.

We don’t just have races for the presidency anymore. We have made-for-TV serial programming, with months of debates, primary-night extravaganzas, even special shows created just for primary season. The inclusion of a reality TV star into the proceedings reinforces this, but even without Donald Trump the public image of the primary process resembles a two-year season of Survivor. And people are responding similarly: Ratings for debates have been higher than ever before.

Since the wide adoption of the primary process, we’ve always had Iowa and New Hampshire voting in the depths of winter, around the same time as this year’s edition. But the attention paid prior to voting has gone around the bend. Bill Clinton announced his candidacy for the 1992 race on October 3, 1991, just four months before Iowa. Even in 2000, John McCain didn’t announce until late September 1999. The campaign was not a two-year pageant until quite recently. 

The 2008 primary, with the close Obama-Clinton race and its historical significance, was a watershed year for primary excitement, and in an effort to recapture that magic, attention has only grown. A rolling political story, with all its human drama and conflict, naturally overshadows the existing government. As long as it helps cable news and online media, increasing eyeballs and potentially raising the prices they can charge for advertising, they’ll keep the primaries in the spotlight.

So when Republicans try to stretch the definition of “lame duck president” to a year before the end of the term, it can feel somehow appropriate to those of us mired in an endless primary run. This has the effect of lopping off 25 percent of the four-year mandate we give to presidents, so we can instead turn our attention to who else might get a four-year mandate that we will subsequently truncate. 

Incidentally, America stands alone with its inordinately long election season. Canada had a rather long election season last year—it went for 11 weeks. Campaign advertisements in Argentina cannot air until 60 days before election day. Australia and Germany’s elections last six weeks. France’s last no longer than four. Campaigns in Japan last all of twelve days.

This isn’t just a personal preference on the part of the French and Argentinians and Japanese. These countries legislate the political calendar. Generally speaking, campaigns don’t start in parliamentary systems until the prime minister dissolves parliament. But even presidential systems can statutorily reduce the length of the election season, as Mexico did last decade (from 186 days to 90). Around the world, countries create short windows for campaign expenditures, ban advertising and polling, and restrict television access to free equal time.

In our Citizens United, money-equals-speech environment, most would consider it so difficult to shorten the election season that they wouldn’t even bother proposing a solution. But it wasn’t always this way. As recently as 30 years ago, no less a titan of conservatism than Barry Goldwater, then in his last term as senator from Arizona, proposed a prohibition on presidential candidates’ raising or spending money until June 1 of the election year. (You would want some kind of balance. Ultra-short campaigns can artificially limit the marketplace of ideas to familiar options—and perhaps limit the genuine contenders to familiar faces.) 

Such a proposal might run into a brick wall in the Supreme Court. But there used to be a recognition that the elongated slog of the permanent campaign debilitated successful governance, and emptied the four-year presidential term of its meaning. And shorter campaign seasons would have residual effects, like reducing the level of money in politics, simply because candidates would not have to spend all their time fundraising to afford 18 months of ads and campaign operations.

We aren’t doomed to endure the permanent campaign forever. And the predicted constitutional crisis is already here if the last quarter of a president’s term can be nullified because the nation is too preoccupied with picking their replacement. The Scalia appointment farce only brings into relief this erosion of executive power.