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.Rehnquist Center at the University of Arizona James E. Last but not least, I wish to thank Alexandra Buckingham, John Cannan, Jennica Janssen, Sydney Melillo, and Kait O’Donnell for their invaluable research assistance. Finally, Part III identifies opportunities within existing First Amendment doctrine to sustain and build partisan networks more capable of producing democratic responsiveness and accountability. The basic theory is nicely summarized by Justice Breyer in his dissent in [P]olitical parties play a necessary role in [transforming the will of the majority into effective government]. 107, 123–26 (1981) (holding Wisconsin may not force the national political party to seat delegates from Wisconsin to the degree that those delegates have been bound by Wisconsin law to vote in favor of the candidate preferred by an open primary electorate). 2003) (holding state interests in increasing voter choice, protecting voter privacy, and promoting cross-party interests were not “compelling” enough to justify a blanket primary). See, e.g., Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. Increasing party competition should therefore resolve the problem. On the other hand, there are data questioning how much competition affects responsiveness given that voters rarely cast their votes based on overall legislative performance as theorized in the traditional model of responsible party government. As in the economic market, political parties would compete to provide the most desirable good, and accountability would follow. Merely consuming the political brands manufactured by party elites has not been enough to produce accountability.
Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L. 804, 809 (2014) [hereinafter Pildes, Romanticizing Democracy]; Richard H. 273, 276–81 (2011) [hereinafter Pildes, The Center Does Not Hold]. This Part first recounts the origins and specifics of the theory of responsible party government, and how this theory is reflected in the case law. Unfortunately, it is attached to a theory of how to harness parties’ self-interest to democratic ends that—whatever its original merits—has not panned out as anticipated. On the one hand, representative government in the modern nation state is unimaginable without a party system to organize voters, candidates, and legislators. Known in the literature as responsible party government, it posited that the key to achieving democratic accountability is to provide the electorate a clear choice between candidates representing distinct political parties on election day. Instead, it sought to create a mechanism by which accountability to the electorate would be achieved indirectly through a strong two-party system in which ideologically distinct political parties competed for votes on election day. Voters then have a clearer choice between directions for the country, which enables them to force a shift in policy. See Gilens, supra note 52, at 192, 194 (concluding that “high levels of political competition in the form of an evenly divided Congress” increases policy responsiveness while “elections appear to be only modestly successful at aligning policy outcomes with the preferences of the public”). at 162–233 (comprehensively analyzing the degree to which elections prompt responsiveness as well as the effect of divided versus unified government on policy responsiveness). highest during the first congressional session after a shift in partisan control of the presidency” but that dominance of one party generally reduces responsiveness to the electorate over time and enables the party to pursue its own agenda. The Court has been singularly unreceptive to structuring First Amendment doctrine in ways that increase party competition. Stephanopoulos, Elections and Alignment, 114 Colum. It is worth emphasizing that none of the main critics of Professors Martin Gilens and Benjamin Page’s study substantially undermine their conclusion that the United States is a “democracy by coincidence.” See, e.g., Peter K.
Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 Calif. See, e.g., Tabatha Abu El-Haj, Beyond Campaign Finance Reform, 57 B. It then sets out the evidence demonstrating that the theory of responsible party government has not panned out as expected. Critical to the success of the system was to empower party leaders to produce brands that would offer ignorant political consumers significant information about candidates at low cost, thereby “‘reducing the transaction costs’ of democracy.”To be sure, ideological labels are crude and one-dimensional, but they provide more accurate signals for the rationally ignorant voter than the old party labels, under which a “Democrat” might be far more conservative than his “Republican” opponent . Responsible party government, in other words, took political parties as they were, while promising to harness the self-interest of these elite organizations toward “small-d” democratic ends. The APSA Report recommended a series of reforms aimed to balance party discipline and voice. 1998) (rejecting a challenge to the Democratic National Committee’s 1996 Delegate Selection Rules, which limited qualified candidates to those deemed bona fide Democrats capable of accepting the nomination by the party leadership); Duke v. 1996) (upholding a statute that permitted state party leadership, in its discretion, to refuse to place candidates felt not to represent the views of the party on the primary ballot). More specifically, Gilens found that “policy responsiveness is . Enns, Relative Policy Support and Coincidental Representation, 13 Persp. 1053, 1058–61 (2015) (conceding “[c]oincidental representation appears to be the norm,” but rejecting the conclusion that this comes “at the expense of those in the middle”).
This Essay argues that the Supreme Court’s political party jurisprudence is predicated on a set of theoretical assumptions that do not hold true in the real world of contemporary American politics. Mgmt., Party Polarization and Campaign Finance 17–18 (2014), Samuel Issacharoff, Outsourcing Politics: The Hostile Takeover of Our Hollowed-Out Political Parties, 54 Hous. See generally Mark Schmitt, Democratic Romanticism and Its Critics, 36 Democracy, Spring 2015, democratic-romanticism-and-its-critics/ [ (reviewing recent arguments in favor of strengthening party leaders in the interest of reducing polarization and increasing responsible governance, including by deregulating party financing). See, e.g., Pildes, Romanticizing Democracy, supra note 1, at 830–31 (arguing that the ideological extremes of the informal party network have led to the cooptation of the party brand, particularly on the right; the election of extremists unable to compromise; and the demise of responsible party governance). 881, 902–08 (2017) [hereinafter Bauer, The Parties’ Struggles]. 4, 2015), [ (noting that a newly filed lawsuit challenging Mc Cain–Feingold “has a real chance to succeed if the Supreme Court decides to weigh in”). The commitment to responsible party government in the Court’s jurisprudence, and also among party reformers, is a colossal mistake. The political parties are stronger and more ideologically distinct than in any prior era. 136, 152–54 (2001) (arguing that it is the utility to incumbents of ideological coherence within the party that accounts for this pattern). In so doing, it illustrates how that same doctrinal vehicle would permit courts to strategically underwrite the strength of those segments of the partisan network that enhance opportunities for social contact between party elites and the broader electorate (including with the aid of money) and thus further the goals of an associational path to responsive governance. depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”). The associational-party perspective, however, requires two modifications to current doctrine. Instead, courts would allocate First Amendment rights in ways that prevent regulation from undermining the socioeconomic and intergenerational breadth or the interpersonal depth of partisan networks. More ideologically distinct than in any prior era, the Democratic and Republican parties today are closer than ever before to the ideal called for by the APSA Committee on Political Parties. Americans who ignore politics to recognize that there are meaningful differences between them” and thus “to recognize the meaning and consequences of candidate differences,” which in turn leads to fewer independent voters). Those who adhere to responsible party government, however, generally do not have a principled objection to governance at the federal level. Pildes, Romanticizing Democracy, supra note 1, at 808 (assuming that in “arenas where there is broad consensual agreement that government See, e.g., Sheryl Gay Stolberg & Nicholas Fandos, As Gridlock Deepens in Congress, Only Gloom Is Bipartisan, N. Trump’s presidency has pushed an already dysfunctional Congress into a near-permanent state of gridlock that threatens to diminish American democracy itself”). Even as the Founders aspired to a republican form of government in which legislators would govern in the public interest, rather than simply vindicate their constituents’ particularized advantages, they fretted over the potential for elected representatives to act out of self-interest or at the behest of special interests. Post, Citizens Divided: Campaign Finance Reform and the Constitution 15 (2014) (explaining the Founding generation’s understanding that “a representative government can fulfill the promise of self-government only if there is a close connection between representatives and their constituents”).
The Court’s jurisprudence is grounded in a theory of democratic accountability—known as “responsible party government”—which views political parties primarily as speakers and presumes that electoral accountability emerges from the choice between ideologically distinct political parties during competitive elections. For a reform aimed at accommodating the rise of Super PACs, see Robert F. Restoring responsible party government, the consensus goes, requires redirecting the flow of money toward the formal party apparatus as the only way to restore moderation and functionality to Congress. A ruling in favor of the Louisiana plaintiffs would have leveled the playing field for political parties in their pursuit of campaign donations, thereby bringing into fruition party reformers’ deregulatory agenda. See Pew Research Ctr., Political Polarization in the American Public 6 (2014), [ (“Republicans and Democrats are more divided along ideological lines—and partisan antipathy is deeper and more extensive—than at any point in the last two decades.”). Whereas the debate in legal-academic and policy circles has been driven by fidelity to responsible party government despite its well-documented failures, this Essay argues that it is time to admit that responsible party government has run its course as a means for achieving democratic accountability and, therefore, the Supreme Court’s political party jurisprudence is in desperate need of a theoretical overhaul. More specifically, this Essay argues for extending the , 504 U. at 434 (“Under this standard, the rigorousness of our inquiry . Thus, under the standard, when First and Fourteenth Amendment rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. First, the framework would be extended to all contexts implicating the right to associate, including those involving the two major political parties. J., dissenting) (explaining that “the national political parties are exemplars of political speech,” “promot[ing] coordinated political messages” and existing often “primarily for the purpose of expressing ideas and generating debate”), overruled in part by Citizens United v. Most importantly, this doctrinal proposal is not entirely a professorial pipe dream. See Pildes, The Center Does Not Hold, supra note 1, at 276–77 (summarizing consensus on the polarization of the parties). 365, 365, 368–69, 369 fig.2, 371, 373 (2017) (demonstrating “the clarity of differences between the two polarized parties makes it easy for . Even scholars who continue to adhere to responsible party government acknowledge that strong political parties have not led to responsible party government. Abramowitz, for example, concedes that “although the conditions for responsible party government have largely been met on the electoral side, with ideologically defined parties offering voters a clear choice between alternative sets of policies,” responsible and effective party governance has not followed. Abramowitz, The Disappearing Center: Engaged Citizens, Polarization, and American Democracy 160 (2010) [hereinafter Abramowitz, The Disappearing Center]. Throughout the ratification debates, for instance, Anti-Federalists raised concerns that the new Constitution would give rise to “a system in which the people would be effectively excluded from the world of public affairs and in which national leaders, only weakly accountable, would have enormous discretion to make law and policy.” See Post, supra note 114, at 13 (noting the Federalists’ position that frequent elections would serve to keep elected officials responsive); see also The Federalist No.
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.”).
The Essay also benefited from discussions at the “Money and the First Amendment” conference held by the Keller Center and the Byron R. See Julie Bykowicz, Cash-Rich Super PACs Keep Flagging Presidential Campaigns Alive, PBS: News Hour (Jan. Part II proceeds to make the case that an alternate path to democratic responsiveness and accountability emerges when one focuses on political parties . Despite the well-documented failure of responsible party government, no one in the legal academy has been quite willing to tell the Supreme Court that the APSA Committee Report got it wrong in the 1950s. Jonathan Rauch summarizes the view succinctly: “Walled safely inside their gerrymandered districts, incumbents are insulated from general-election challenges that might pull them toward the political center, but they are perpetually vulnerable to primary challenges from extremists who pull them toward the fringes.” Rauch, supra note 8; see also Abu El-Haj, Beyond Campaign Finance Reform, supra note 2, at 1151 (“[T]he lack of partisan competition has unmoored political parties and candidates from the interests of their constituents. The Court’s recent refusal to consider two cases involving First Amendment challenges on behalf of political parties squarely framed in terms of responsible party government theory provides a window of opportunity, possibly indicating that some members of the Court are growing wary of the path it has forged. Even in a world of competitive districts in which turnout is high and representative, democratic accountability turns on voters having sufficient information to assess the adequacy of representation. Responsible party government pursued an indirect solution to the pervasiveness of voter ignorance.
White Center at the University of Colorado Law School and the inaugural National Conference of Constitutional Law Scholars at the William H. It reviews the empirical evidence supporting the importance of social ties to political mobilization, organization, and information transmission as well as the implications of recent changes to the associational qualities of partisan networks. Rosenblum, Primus Inter Pares: Political Parties and Civil Society, 75 Chi.-Kent L. 493, 496 (2000) [hereinafter Rosenblum, Primus Inter Pares] (explaining that mainstream political science views “electoral parties as cadres of candidates, professional organizers, and hired consultants, and of citizens as consumers of their products”); see also Fishkin & Gerken, supra note 30, at 201 & n.94 (noting the marketplace metaphor was brought into the legal literature by the work of Samuel Issacharoff and Richard H. Just as consumers’ interests are served by competition among producers to make appealing products, the electorate’s interests are served by competition between parties to produce an appealing political brand—one that voters “purchase” on election day. Instead, the tendency in legal circles has been to focus on the most obvious fix, a theoretical patch, so to speak: increase party competition. Kang, Race and Democratic Contestation, 117 Yale L. 734, 801–02 (2008) (noting that a theory of democratic contestation can provide a “substantive vision for healthy democratic politics”); David Schleicher, “Politics as Markets” Reconsidered: Natural Monopolies, Competitive Democratic Philosophy and Primary Ballot Access in American Elections, 14 Sup. With the rise of safe districts, the party primary has increasingly become the most important election.”). See Abu El-Haj, Beyond Campaign Finance Reform, supra note 2, at 1152 (noting “[v]oters cannot hold elected officials accountable if they do not know [what those officials have done]” and observing that “elected officials who engage in off-center politics depend on the voting public not noticing”); cf. Presenting voters on election day with a choice between clear ideological brands, it hypothesized, would substitute for actual knowledge.
The closed primary was the key to the entire initiative. A blanket primary is one in which voters are presented with a single ballot, listing all the contenders, and are able to switch party primaries from office to office. Podkul & Elaine Kamarck, The Primaries Project: Blanket Primaries Have Yet to Deliver, Brookings Inst. State Primary Election Types, Nat’l Conference of State Legislatures (July 21, 2016), ZTV7-8KWT]. backing to be chosen as a delegate or to become a nominee for office”); Tashjian v. No one, not even the authors of the APSA Report, denies that participation of citizens is necessary for accountability. 266, 266–67 (2006) (revisiting the question whether there is “a permanent information underclass” in U. Democracy 65, 66 (1995) (“The norms and networks of civic engagement also powerfully affect the performance of representative government.”).
It would provide party members a voice, thereby reducing intraparty conflicts. is difficult if they speak for members with entirely different objectives and fundamentally different ideas on public policy” and noting “[t]he formal or informal proposal of candidates by preprimary meetings of responsible party committees or party councils is a healthy development”). Cross-filing provisions permit a candidate to appear on more than one party’s primary ballot. difficult for those who lack party connections or . See APSA Report, supra note 54, at 76 (“It is only at the polls that a party can be held finally accountable for its promises and its deeds. at 30, 76 (arguing low voter turnout “is the result of disappointment as well as inertia” and that “[m]ore significant operation of the party system would create greater interest in voting” but also in party membership). It is no accident that federal policy is highly solicitous of the needs of older Americans; they succeed in asserting their interests because they are more politically active and better organized than most Americans.