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845, 879–80 (2017) [hereinafter Issacharoff, Outsourcing Politics]; Pildes, Romanticizing Democracy, supra note 1, at 836–49. Advocates of deregulation argue that the rise of Super PACs and similar entities capable of accepting unlimited contributions for independent expenditures, as a result of haphazard, court-driven deregulation, has empowered the more ideologically extreme elements of the partisan network—fomenting political polarization, legislative gridlock, and popular discontent. Doyle, New Challenge Filed to Party ‘Soft-Money’ Limits, Bloomberg News (Aug. Thus, its recent decisions not to take up important cases involving the First Amendment rights of political parties provide an opportunity to revisit the commitment to responsible party government and, potentially, to head off any efforts to constitutionalize a party-reform agenda that appears doomed to fail. This Essay concentrates on the Court’s First Amendment jurisprudence, identifying opportunities within existing doctrine to avoid constitutionally requiring wholesale deregulation of party finances. “But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon . As such, the framework is also well positioned to attend to the longstanding goal of the Court’s political party cases—ensuring responsible governance. The latter modification provides a way to redirect the doctrinal focus from shoring up party elites and their ability to define and control a distinct political brand. 2016) (dismissing as moot the appeal of a denial of injunctive relief regarding an election that had already occurred). Whatever the merits of responsible party government as a solution to the problems faced by mid-twentieth-century American parties, it has not panned out as anticipated. Hacker and Paul Pierson note wryly, “What the committee coveted . Hall, Long-Term Consequences of Election Results, 47 Brit. One’s normative assessment of gridlock, obviously, varies depending on whether one is generally opposed to federal legislative action as unnecessary or an infringement on states’ rights. 27, 2018), 2018/01/27/us/politics/(on file with the ) (noting bipartisan concern in Washington “that Mr. Drawing upon the empirical research on the drivers of political participation in both political science and sociology, this Part explains why measures targeted toward cultivating, strengthening, and broadening social ties within partisan networks present an alternative, and underappreciated, path to responsive and accountable governance. The puzzle of how to curb the tendency of elected officials to act out of self-interest or at the behest of special interests has plagued the republic since the Founding.
2114 (2017); see also Bob Bauer, The Political Parties and Their Problems, More Soft Money Hard Law (May 17, 2017), 2017/05/political-parties-problems/ [ (discussing the Ninth Circuit’s decision in the Justices granted a much-needed opening to reconsider the Court’s political party jurisprudence. Unfortunately, in doing so, it has adopted a set of theoretical assumptions that do not hold true in the real world of contemporary politics. Conceiving of parties almost exclusively , they have failed to systematically explore the part associations can play in mobilizing and informing citizens and in facilitating a two-way street of communication between party leaders and ordinary voters, let alone the ways such efforts could contribute to good governance. In this regard, the associational-party perspective offers a marriage between the pragmatic tradition, which accepts political parties for what they are—associations dominated by self-interested political elites—and the romantic tradition, which seeks enhanced democratic accountability through the political participation of ordinary citizens as agents rather than consumers. 2006) (invalidating Ohio’s ballot-access scheme—which effectively mandated minor parties to hold a primary a full year before the election to secure ballot access—as a severe and unconstitutional burden on a minor party’s freedom of association). Echoing the basic thrust of responsible party government theory, Justice Thomas accepted Oklahoma’s interest in “preserv[ing] [political] parties as viable and identifiable interest groups”], the Court concluded that the associational interests of the parties trumped state interests that were much more compelling than those asserted in this case. The Court, however, dismissed these arguments out of hand, noting, “The nonpartisan blanket primary ‘has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee.’” Id. candidate to use the ballot for drawing upon the goodwill that a party has developed, while preventing the party from using the ballot to reject the claimed association or to identify the genuine candidate of its choice.” Id. In sum, responsible party government has run its course as a basis either for allocating First Amendment rights to political parties or for devising party regulations in the interest of good governance.
1, 26–29 (1976) (upholding limits on individual campaign contributions due to the state’s compelling interest in preventing the appearance of quid pro quo corruption). Party theorists have largely been blind to the democratic potential arising out of the fact that parties are political networks comprised of individuals and groups with social ties to one another and the broader electorate. Schattschneider, Party Government 52 (Greenwood Press 1977) (1942)) [hereinafter Kang, Hydraulics]. Invoking the line of cases that protect party leaders’ control of the brand, the Libertarian Party argued it had a constitutionally protected right to diffuse its brand by allowing in voters who were Democrats and Republicans in the interest of selecting a more viable candidate for the general election. Instead, the Court found that the burden placed by the semiclosed primary on the party, which it characterized as minimal, was easily justified by the state’s interest in protecting strong parties. The top two vote-getters for each office advance to the general election, creating the possibility that two candidates from the same party may run against one another in the general election. Also included is the freedom to choose and promote “‘the standard bearer who best represents the party’s ideologies and preferences.’” When an expressive organization is compelled to associate with a person whose views the group does not accept, the organization’s The constitutional foul of the nonpartisan primary remains the same, according to Justice Scalia, for individuals are allowed to “appropriate the parties’ trademarks” at the critical juncture in an election, thus muddying the parties’ messaging.
It is candidates and political parties that lack effective social networks and feedback loops through which the interests of ordinary Americans can be filtered up to party elites. For an earlier iteration of this argument, which reviews the seminal studies of Sidney Verba, Robert Putnam, and Doug Mc Adam, as well as their critics, see Tabatha Abu El-Haj, Friends, Associates, and Associations: Theoretically and Empirically Grounding the Freedom of Association, 56 Ariz. Once we appreciate that the decision to take political action is only partly a matter of belief, enthusiasm, or ideological commitment, it is possible to see why strengthening and broadening social ties within partisan networks presents an alternative and as yet underappreciated path to responsive and responsible governance. ’s rejection of the Libertarian Party of Oklahoma’s challenge to the state’s semiclosed primary, which permitted political parties to invite independent voters but not voters registered as partisans of other parties into their primary, is thus not an anomaly, as some have suggested. Under Washington’s new system, voters, regardless of party affiliation, are permitted to vote for any of the candidates seeking nomination for a given seat. in [the challengers’] argument is that, unlike the California primary, the I–872 primary . Among the First Amendment rights that political parties possess is the right to associate with the persons whom they choose and to refrain from associating with persons whom they reject.
The primary impediment to responsive governance is not weak, mealy-mouthed political parties. Bauer, The Right to “Do Politics” and Not Just to Speak: Thinking About the Constitutional Protections for Political Action, 9 Duke J. A vast body of sociological and political scientific research demonstrates that relationships, far more than ideological commitments, drive political mobilization, organization, and information transmission. 53, 59, 87 n.164 (2014) [hereinafter Abu El-Haj, Friends, Associates, and Associations] (noting that critiques of the importance of personal ties emphasize organization, not speech or ideology, in their accounts of civic and political engagement). ‘does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.’” (quoting Wash. As Justice Scalia argued in dissent, the very purpose of a blanket primary—partisan or nonpartisan—is to moderate the candidates that appear on the general election ballot. at 470 (Scalia, J., dissenting) (“There is no state interest behind this law except the Washington Legislature’s dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates.”).
See, e.g., Drutman, supra note 7 (noting the geographic divide in partisan identities); Reiham Salam & Rob Richie, Opinion, How to Make Congress Bipartisan, N. Times (July 7, 2017), file with the Finally, at least for the moment, reforms aimed to shore up the party leadership’s ability to control its political brand appear politically unpalatable, given the pervasive public mistrust of party insiders.
Further, there is good reason to believe that the lack of party competition in most places is substantially, and increasingly, a result of ideological geographic self-sorting rather than partisan gerrymandering.
Viewed as associations, the capacity of political parties to foster a functioning democracy depends less on party leaders defining and enforcing a coherent platform and more on the depth and breadth of the party’s political networks. to Vandewalker & Weiner, supra note 5, at 3; see also Robert F. Gerken, The Party’s Over: Reinforcing the chains of democratic accountability lies in strengthening elected officials’ social ties to activists and activists’ ties to a broad and representative electorate, through the use of peer-to-peer strategies. cannot easily be squared with a commitment to responsible party government theory.
Without claiming that there are easy solutions to our democratic dysfunctions, this Essay develops the contours of an alternate path to democratic responsiveness and accountability and identifies ways to incorporate it into existing First Amendment doctrine. Pol’y (Special Issue) 67, 69, 75, 78–79 (2013) [hereinafter Bauer, The Right to “Do Politics”] (noting that parties provide an avenue not only for speech and expressive association but also for the independent activities of political action such as coalition building); Joseph Fishkin & Heather K.
From this perspective, the primary impediment to responsive governance is a lack of effective social networks and feedback loops through which the interests of ordinary Americans can be filtered up to party elites. 20, 2015), [ (reviewing and criticizing this view). 2008); see also Stephen Ansolabehere et al., Candidate Positioning in U. Drutman, supra note 7 (noting that in recent cycles only about one out of twenty House elections were competitive—defined as a margin of victory of less than 5%—and that the numbers are only marginally better for the Senate); see also Pildes, The Center Does Not Hold, supra note 1, at 309–10 (discussing the decline of competitive elections). It would, thereby, ensure that First Amendment rights are allocated in ways that are more, rather than less, likely to encourage political parties and their candidates to heed the concerns of their constituents. Thus, there is a good deal of political will, possibly even among the Justices in light of the Court’s recent decisions, for change. In Masket’s view, the primary obstacle to accountability has been the unforeseen consequences of the move to closed primary elections, which lead “legislators [to] look to their party first and to their district second.” Id. Masket argues that “the view of officeholders as single-minded seekers of reelection,” who tack back to the median voter, “has little relevance [today], not because officeholders don’t care about the electoral connection” but because strong nominating parties today “interpose themselves between officeholders and voters and often thoroughly dominate the relationship.” Id. But the Constitution provides no authority for federal courts to prescribe such a course. The structural features of separation of powers and federalism would provide “auxiliary precautions.” While some argue that it is incoherent to speak of responsive governance because the electorate is incapable of having a preference, this Essay takes a pragmatic stance.
The current doctrinal preoccupation with shoring up party elites and their ability to define and control their distinct political brand should be replaced with an attentiveness to a party’s capacity to mobilize broad and representative political participation and to facilitate a two-way street of information transmission through party activists. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B. The election of Donald Trump—a candidate who never achieved more than a plurality of the primary vote and had the lowest approval rating of any incoming President—illustrates the costs of the current regulatory regime. For one, although the Supreme Court has shown fidelity to the need for strong parties, it has been singularly unreceptive to adopting a procompetition theory of the First Amendment that would ensure the requisite conditions for competitive elections. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan. The principal mistake of the Court’s doctrine has been its singular preoccupation with protecting political parties, as speakers, from burdens placed on their brand. Part I of this Essay begins by recounting the origins of responsible party government and explaining the ways it underpins the Court’s entire party jurisprudence. at 19; see also Gilens, supra note 52, at 9–10 (“My findings seem to support the notion that parties in the United States have evolved from broad-based, vote-maximizing organizations attentive to the preferences of large and diverse publics to coalitions of intense, narrow ‘policy demanders.’”); Soss & Jacobs, supra note 84, at 117–18 (summarizing evidence that “[t]he rising power of party activists has created strong incentives for politicians to discount the preferences of broad public opinion” including, for instance, popular opinion on immigration reform). might be the most effective vehicle for enabling the compromises and deals necessary to enable more effective governance’” (quoting Pildes, Romanticizing Democracy, supra note 1, at 809–10)). utm_term=.014c8abb0f73 (on file with the ) (reporting on polls revealing a “starkly pessimistic view of U. politics, widespread distrust of the nation’s political leaders and their ability to compromise, and an erosion of pride in the way democracy works in America”); see also Pew Research Ctr., Declining Confidence in Trump, Lower Job Ratings for Congressional Leaders 2 (2017), 02124917/11-02-17[ (reporting, among other things, that “[s]ince earlier this year, approval ratings for the congressional leaders of both parties have fallen—largely because fewer Republicans and Democrats are expressing positive views of their Instead, the public appears generally dissatisfied with both political parties and a political process in which elected officials repeatedly fail to address the general electorate’s preferences on the rare occasions when Congress is able to get anything done. Legislators, meanwhile, have zero incentive to approve measures aimed to increase partisan competition. In some theoretical sense this is no doubt true, but it is too far from our political culture or the law to be a valuable critique.