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.
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.
This Essay concludes by identifying opportunities within existing First Amendment doctrine for fostering partisan networks more capable of producing democratic responsiveness and accountability. See Jonathan Rauch, How American Politics Went Insane, Atlantic (July/Aug. The architects of this approach are Samuel Issacharoff and Richard H. Part I’s central contribution, however, is the evidence it provides of the growing consensus that responsible party government has given way to irresponsible party governance. But see Ansolabehere et al., supra note 21, at 154 (arguing that it is the usefulness of a coherent legislative party to self-interested incumbents, rather than the presence of an ideologically extreme base, that accounts for candidates’ failure to closely hew to constituents’ preferences). by hewing close enough to the center of the political distribution of voters” and concluding that “‘stronger parties . See John Wagner & Scott Clement, ‘It’s Just Messed Up’: Most Think Political Divisions as Bad as Vietnam Era, New Poll Shows, Wash. A recent national poll of young voters (defined as 18- to 29-year-olds) found only a minority of young Americans believe that the major parties and the President “care about people like [them].” Harvard Kennedy School Inst. It is, therefore, time to reckon with the need for a theoretical overhaul. For a summary of this extreme skepticism, see Schleicher, supra note 96, at 181–86 (explaining the critique but arguing that it is sufficient that voters have some political views and some capacity to judge their interests and preferences).
Associate Professor of Law, Drexel University Thomas R. I would like to extend a special thanks to Deborah Hellman, David Schultz, and the participants at the faculty workshop at Rutgers Law School. Pildes, Separation of Parties, Not Powers, 119 Harv. 2016), [ (“Trump, however, didn’t cause the chaos. The ease with which each of the numerous Republican hopefuls was able to amass support through Super PACs (frequently financed by individual wealthy donors) undercut the party leadership’s ability to narrow the primary field early enough to prevent Trump’s insurgent candidacy. Pildes, Romanticizing Democracy, supra note 1, at 844 (noting that proposed campaign finance reforms would be moot “[i]f the political parties [are] constitutionally entitled to receive unlimited contributions dedicated for use only for independent party spending on behalf of candidates” because this would direct the flow away from Super PACs and to the parties themselves). In doing so, it sets up the central argument of this Essay: that we have no choice but to consider alternative paths to responsive and accountable governance. See, e.g., Masket, supra note 38, at 24–25, 95–96, 195 (asserting that accountability to the party base, notwithstanding its failures, is preferable to diffuse accountability to the electorate insofar as the base and party operatives are better positioned to monitor the actions of legislators and thus thwart lobbyists from buying elected officials); see also Issacharoff, Outsourcing Politics, supra note 4, at 855, 861 (noting that members of the party in government “foremost look to winning elections . of Politics, Executive Summary: Survey of Young Americans’ Attitudes Toward Politics and Public Service 7 (2017), IOP Poll _Fall _Exec [ (reporting specific numbers as 21% for the Republican Party and 34% for the Democratic Party). 163, 176–87 (2006) (analyzing models of political contestation). Whatever its merits at the time, a variety of developments in American politics since the 1950s, including those in election law, have undercut responsible party government’s usefulness as a framework through which to achieve democratic responsiveness and accountability. Among their myriad limitations as vehicles for producing accountability, one has proven particularly intractable: the quality of political participation. 1, 14–15 (1976) (recognizing that “[i]n a republic where the people are sovereign, the ability of the citizenry See, e.g., Bawn et al., supra note 51, at 577–78 (identifying a large “blind spot” with respect to information about official behavior, which renders ordinary voters incapable of holding politicians accountable through monitoring).
Candidates and elected officials selected by a more coherent party base would be more capable of holding a party line, especially if party leaders maintained informal control over the selection of primary contenders. Strikingly, the Supreme Court’s resolutions in cases involving the First Amendment rights of political parties virtually map onto the 1950 call for responsible party government through a two-party system. Similarly, gun-rights supporters who are members of the National Rifle Association (NRA) are notably more politically active than gun owners who do not belong to the NRA.
The Court’s commitment to responsible party government’s account of the path to democratic accountability explains both why the Court has consistently sided with the leaders of the two major parties when internal party conflicts arise and why it has taken positions in favor of entrenching the two-party system. Some 46% of gun owners in the NRA say they have contacted a public official to express their opinion on gun policy, including 24% who have done so in the past 12 months.
Responsible party government theory underpins the Court’s jurisprudence on the First Amendment rights of political parties. The current party system is unsustainable in the long term, and reforms grounded in responsible party government are not promising. 351, 367 (1997) (noting “[t]he Constitution permits the Minnesota legislature to decide that political stability is best served through a healthy two-party system” and thus permits the enactment of “reasonable election regulations that may, in practice, favor the traditional two-party system”); see also Munro v. In sum, the Supreme Court has long accepted that the First Amendment rights of political parties should be allocated in ways that channel their self-interest to produce democratic accountability. What they got—along with the rest of us—was Elections are failing to tether government officials to the preferences of their constituents. Professor Larry Bartels has summed up the data as follows: “Whatever elections may be doing, they are In fact, while “[t]he scope for independent action by elected leaders” is “especially great in cases where public sentiment is divided, unstable, confused, or simply nonexistent[,] . Bartels further notes that “[i]n most cases, even massive differences in the preferences of middle- and upper-income constituents” have little “effect on senators’ policy choices” especially as compared to “their own partisan ideologies.” Id. 351, 354, 358, 366 (2015) (concluding a study of policy responsiveness in competitive moderate districts with the assessment that “[a]cross American legislatures, elected representatives do not converge to the median voter in their constituency”); Joe Soss & Lawrence R. 95, 116 (2009) (“In recent decades, government officials have exhibited weak and declining levels of responsiveness to median public preferences.”). Binder, Stalemate: Causes and Consequences of Legislative Gridlock 25–26, 67–69 (2003) (demonstrating ways that party homogeneity undermines policy responsiveness by breeding polarization and gridlock); Pildes, Romanticizing Democracy, supra note 1, at 808 (noting the government’s inability to act even with respect to issues that are pressing and with respect to which there is broad consensus). In this regard, the Court’s recent decisions are an invitation to consider a fresh path to responsive and accountable democratic governance.
The Court has long determined that, with respect to political parties, First Amendment rights ought to be allocated in ways that promote democratic values and good governance. Known in the literature as “responsible party government,” the theory, which, as it happens, also accounts for the specifics of the recent calls for party reform, presumes that electoral accountability emerges from the choice between ideologically distinct political parties during competitive elections. It is important to acknowledge up front that, unlike traditional responsible party government theory, an associational-party perspective starts from the premise that “American political parties are not solely elite institutions selling their brand to a passive public” Id. Kang, The Hydraulics and Politics of Party Regulation, 91 Iowa L. It is equally important to acknowledge upfront that the associational-party path is predicated on the assumption that entrenched problems demand multifaceted interventions aimed at incremental change. 189, 199 (1986) (upholding a state statute that conditioned a candidate’s appearance on the ballot in a general election on the candidate having received at least 1% of the votes in a primary election). APSA Report, supra note 54, at 1–2 (“The fundamental requirement of accountability is a two-party system in which the opposition party acts as the critic of the party in power, developing, defining and presenting the policy alternatives . Here, by contrast, where the associational interests are being asserted by a minor party rather than by one of the dominant parties, the Court has reversed course and rejected those associational interests as insubstantial compared to the interests asserted by the State. the paucity of elite responsiveness to public opinion extends even to issues on which public opinion seems to be unusually firm and stable.” Id. A variety of developments in American politics and law since the 1950s have undercut responsible party government’s usefulness as a framework through which to achieve democratic responsiveness and accountability.