The Role of Political Parties in Partisan Competition

Draft 10/99 B comments welcome The Role of Political Parties in Partisan Competition Samuel Issacharoff1 At first blush, the title of this article mi...
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Draft 10/99 B comments welcome

The Role of Political Parties in Partisan Competition Samuel Issacharoff1 At first blush, the title of this article might seem transparently obvious. After all, political parties have shown themselves to be the inevitable institutional framework through which republican politics is conducted. Despite the well-chronicled founding antipathy toward the blight of factions and parties, it was to the nascent forms of political parties that the founders themselves turned within only a few short years of the American Republic. Moreover, there is a well-known predictability to the form in which political parties operate at the center of a partisan electoral system. There is a specific organizational structure of political parties that even insurgent and individually-dominated movements, such as the Ross Perot-led Reform Party, gravitate towards. There is also the well-observed pressure toward the emergence of two B and only two B relatively centrist parties in a system territorially based on first past the post winner takes all. For historic outsiders, such as Representative Bernie Sanders of Vermont, this translates into the need to affiliate with one of the major parties at the legislative level, or risk effective marginalization in the halls of government. And for the past century and a half, the two parties of governance have been the Democrats and Republicans, who although occasionally challenged, have never been dislodged from their commanding roles as the institutional actors through which meaningful partisan competition takes place in this country. The apparently self-evident role of political parties in partisan competition contrasts rather strikingly with the ambivalent treatment given to political parties in the law. The major cases addressing the institutional prerogatives of political parties, or at least of the major political parties, alternatively treat them as the political equivalent of common carriers subject to ordinary regulatory oversight, or as rights-bearing entities entitled to protection from state incursion. The first view, as expressed by Justice Powell, derives from the lack of a firm ideological stance by the

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Professor, Columbia Law School.

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major parties; instead, their Apositions vary from time to time, and there has never been a serious effort to establish for the party a monolithic ideological identity by excluding all those with different views.@2 Yet, the Supreme Court has also been willing to recognize that the compelled Ainclusion of persons unaffiliated with a political party may seriously distort its collective decisions B thus impairing the party’s essential functions B and that political parties may accordingly protect themselves ‘from intrusion by those with adverse political principles.’@3 This tension is compounded by legal uncertainty about what the party actually is, regardless of its ability to resist regulation. As is well established in the political science literature, parties are an unstable amalgam of voter preferences, an internal apparatus driven by activists, and a structure through which party affiliates participate in government.4 A significant portion of the caselaw on political parties has involved difficult battles between the party in government, the party in the party, and the party in the electorate over control of important internal party functions, most notably the right of participation in the internal processes of the party. No case, however, brings the battle for control of the party into such stark relief as the current litigation over California Proposition 198, the so-called blanket primary proposition.5 For it is the California experiment in opening the nomination processes of the parties to all voters, and the legal grounds given for upholding this liberalization of party identity, that most clearly imposes a substantive vision of the parties fully as common carriers subject

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Democratic Party v. Wisconsin

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Tashjian v. Republican Party of Connecticut.

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See Frank J. Sorauf & Paul A. Beck, Party Politics in America 7-12 (6th ed. 1988). For a legal application of this approach, see Michael A. Fitts, the Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legislative Process, 136 U. Pa. L. Rev. 1567 (1988). 5 A blanket primary allows a voter to participate in the nomination of any party of his or her choice, regardless of prior institutional affiliation with that party. Blanket primaries differ from both open and closed primaries in that registered voters may participate in the primary of more than one party on the same ballot. In a closed primary, a voter may participate only in the primary of the party in which he or she is registered. In an open primary, a registered voter may request the ballot of any party, whether registered in that party or not, but may vote only for the primary candidates of that party. A blanket primary permits voters to vote for any candidate in any party without being registered in that party. The ballot includes all candidates running in the primary of all parties, thereby allowing the voter to choose which party’s primary to vote in on an office-by office basis (e.g., voting among the Republicans for governor; among the Democrats for senator, etc.).

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to the regulatory desires of the undifferentiated electorate.6 The key effect of the blanket primary provision, as imposed by a popular referendum, is to significantly free the party in the electorate from institutional controls by either the party apparatus or the party in government. It is essentially a rebellion of the electorate against the claims of either the party institutional apparatus or the party in governance to be able to condition the terms under which the party presents itself to voters. To the extent that parties may indeed claim a constitutional right to make collective decisions free from outside interference, the blanket primary would appear to be the most direct affront to that ability. The unsuccessful challenge to Prop 198 was premised on an assertion of first amendment rights of association enjoyed by the parties.7 While that argument may or may not still have prospects on further appeal, this Essay will attempt to address the issue of party institutional autonomy not in terms of the weak rights of association recognized thus far in the caselaw, but rather in terms of the importance of party autonomy in maintaining competitiveness in the political marketplace. The starting point is this analysis is the conception of politics as a contested terrain in which political actors seek to devise a winning coalition strategy for electoral success. As set out initially in the work of Anthony Downs, we may follow the spatial model of how a candidate seeking election B and by extension, a party seeking an advantageous positions among a heterogeneous electorate B would gravitate toward the center so as to position himself or herself in proximity to the preferences of the greatest number of voters. But as recent work in political science demonstrates, most notably that of John Aldrich,8 the Downsian model is impoverished for its failure to account for the various functions of parties that also influence its political posture. First and foremost, from the

6 The common carrier analogy is a variant of the argument that political parties should be seen as the equivalents of public utilities in the electoral arena. See Leon D. Epstein, Political Parties in the American Mold 157 (1986). 7 California Democratic Party v. Jones, 169 F.2d 646 (9th Cir. 1999). I will refer to the Ninth Circuit for purposes of citation to the rulings in the Prop 198 case. The Ninth Circuit, however, issued only a three paragraph opinion and then appended the entire opinion of District Judge Levi, noting that Awe concur in every respect@ with the opinion below. 169 f.2d at 647. 8 John H. Aldrich, Why Parties?: The Origin and Transformation of Political Parties in America (1995).

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founding days of the Republic, elite politicians despaired of the difficulty of inspiring the masses of voters to actually participate in the political process. So long as the assumption was that these voters would defer to the sagacious elites, this passivity was of no concern. But as the factional battles between Federalists and Republicans intensified in the elections of 1796 and 1800, each found a need to mobilize supporters for battles waged in the electoral arena.9 As has been well described, the result was the emergence of the first political parties in America.10 The emergence of these parties was, of course, all the more striking for the extreme hostility of the founding generation to what were seen as permanent factions.11 In turn, the mobilization of supporters to vote required a cadre of party loyalists who would devote of their time and resources to advance the party’s agenda. These partisans were not the centrist median voter, but rather the activists who in turn believed that the centralization advocated by Hamilton would lead to renewed ties to Britain and a subversion of liberty, or alternatively, that the Jeffersonian embrace of the states augured civil war, dissolution of the Republic, and subservience to France. Clearly, these were not the terms of discourse or the source of mobilization of the median voter.12 Rather, they served as the ideological basis for the creation of the first political parties, whose purpose was to contest for the votes of the median voters and to mobilize their partisans in the electoral battlefield. As Aldrich well argues, the successful politician, even back in the founding days of the Republic, needed to secure not only the electoral support of the median voter, but critically depended on the aroused passion of the truly committed partisans B the very concept so anathema to Madison and the founding generation. This insight is apparent through the history of political parties, as the current Republicans and

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As early as 1792, political essayists were lamenting the lack of voter participation, particularly in lower rank local elections. See James R. Sharp, American Politics in the Early Republic: The New Nation in Crisis 67(1993)(quoting AAlgernon Sidney@ complaining that Acontinuation of liberty does not so much depend upon the existence of the right of election, as upon a vigilant and careful exercise of it.@). 10

See, e.g., Sharp, supra, at 8-13.

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On the early hostility to parties, and its manifestation in American the constitutional structure, see Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process 186-89 (1998). 12 On the early gulf between partisan activist and the moderate median voter, see Richard Hofstadter, The Idea of a Party System120 (1969).

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Democrats find when their party activists propel candidates decidedly more to the right and left, respectively, than the potentially victorious electoral base of the parties. The modern political party further entrenches this push away from the center through the elaborate institutional processes of the party in government. Absent the parties, majority coalitions are inherently unstable, for the reasons set forth by Kenneth Arrow.13 The parties help solidify the ability of a legislative majority to enact a program, pass legislation, and reward sectional preferences without undoing the basic points of agreement of the majority. This again forms a basis for access for the activist core of the party who demand programmatic fidelity to their goals as well as direct and indirect patronage as a condition of continuing to mobilize the electoral base of the respective parties. As a result the modern politician in a contested electoral district is under constant pressure from the party core and the electorate to push alternatively toward the poles and toward the center. The first is the process of finding ways to keep the party activists engaged; the second is the path to appeal to the greatest number of of potential voters. The tension is seriously compounded when politicians are further forced to seek campaign funding from their core constituency. In all such cases, politicians interested in reelection must seek a difficult middle ground that keeps the activists engaged enough to turn out the vote and work the electoral machinery, while convincing them that they are sufficiently close to the activists’ views as to make any attempt to bolt from one of the established parties a Awasted@ vote, or a spoiler’s vote that delivers election to the opposition. At the same time, the commitment to the activists cannot be so firmly established as to alienate voters in the general election, thereby repeating the electoral disasters of candidates such as Barry Goldwater in 1964 and George McGovern in 1972. This yields a strong incentive for incumbent politicians to reduce the competitiveness of elections in order to permit a greater independence from both the core constituency and from the broader electoral base. A number of strategies may be seen as variants of this theme. Incumbent

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For an application of Arrow to the organizing role of political parties, see Jonathan R. Macey, The role of the Democratic and Republican Parties as Organizers of Shadow Interest Groups, 89 Mich. L. Rev. 1 (1989).

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politicians may seek to gerrymander their districts so as to provide a less competitive electoral terrain and thereby lessen their dependence on both the activist core and the centrist median voters. They may seek public funding of elections or greater incumbent perquisites (e.g., franking privileges, limitations on spending by rivals) that insulate them from challengers. They may seek to thwart third-party activism or third party cross endorsement that increases their vulnerability to activist challenges from within. They may seek to restrict voter access through oppressive voter registration requirements or candidate access through byzantine qualification rules. Where such overt anticompetitive efforts are constrained, parties remain buffeted by competing political demands from within and without. The upshot is that there is a curious competitiveness to the electoral process, even with only two major parties, so long as incumbents remain accountable to the pressures away from the center coming from within their party and to pressures toward the center coming from without. What then should be the role of legal regulation of the political process? Previously, Richard Pildes and I have applied a variant of this analysis to argue in support of a competition-reinforcing view of legal oversight of the political process. The core of the analysis is that there should be legal intervention when self-serving incumbent behavior threatens the competitiveness of the process. We further argued that the vitality of political parties is essential to the competitiveness of the process, even as parties in government are the primary mischievous elements seeking to make the process less competitive. I now want to take this one step further to try to develop an argument that legal regulation that threatens to undermine the vitality of parties (as with campaign finance regulations that push money further from the parties and their candidates14) should also be seen as fundamentally anticompetitive. I will apply this argument to Prop 198, which is the revenge of the median voter (or the party in the electorate) upon the party in government and the party apparatus. The most difficult part of the argument is not a normative claim that such an assault on the party structure is a bad idea, but that it should be constitutionally suspect. Since my orientation is not

14 This argument appears in Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 Tex. L. Rev. 1705 (1999).

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to try to rest this conception of the role of the party on an elaborate first amendment right of association, but on a functional account of the need to protect the competitive vitality of the political process, this is a difficult case to make. I will proceed in two steps. First, I will present the limited authority for the claimed right of association under the first amendment to show how unlikely it is that this argument could have carried the day against Prop 198. Second, I will sketch out what an alternative political competition argument would look like, in large part to identify the sort of empirical proof that needs to be garnered (and has not been) for a claim that an alteration of the nomination process undermines the role of political parties necessary for a competitive political order. A. The Limits of the First Amendment Right of Association. Not surprisingly, the challenge to the California blanket primary initiative initially took the form of a standard first amendment claim to freedom of association. In the leading case on point, Tashjian v. Republican Party of Connecticut, the Court grounded a qualified right of party autonomy in just that fashion, finding that the Afreedom of association protected by the First and Fourteenth Amendments includes partisan political organization.@15 That caselaw is, from the perspective of party autonomy, heavily qualified by competing doctrine that recognizes a more diffuse state regulatory interest Ain protecting the overall integrity of the historic electoral process.@16 Moreover, as the Court candidly confessed, A[n]o bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms.@17 But a closer examination reveals that, for at least three reasons, it is not simply the tension in the caselaw that compromises the first amendment argument against the imposition of the blanket primary. First, and most simply, the blanket primary experiment does not fit within any of the categories of cases in which a claim of freedom of

15 479 U.S. 208, 214 (1986). See also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997)(holding as well that the internal organization of the parties entitled to constitutional scrutiny). 16 17

Nader v. Sahaffer, 417 F.Supp. 837, ___ (D.Conn.), summ. aff’d, 429 U.S. 989 (1976). Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).

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association has held sway under the first amendment. The caselaw governing party freedom of association claims proves surprisingly fragile upon examination. There is a reasonably well-developed principle of protecting vulnerable political institutions against either disparate treatment or a generalized application of rules that make minor party involvement in politics exceedingly onerous B as with cases striking down oppressive filing fees for running for office.18 On closer inspection, however, these cases are conspicuously chary in recognizing a first amendment affirmative claim of political parties. Instead, they are willing to recognize a claim that certain regulations when applied to minor political parties effectively chill any capacity for these parties to express their political viewpoint. This is the flipside of cases such as Roberts v. United States Jaycees which refused to insulate a large, diffuse and non-vulnerable group from the application of a general state non-discrimination law.19 What is missing in the caselaw to date is any recognition of any right of autonomy that the party may claim against adverse state regulation. The constitutional infirmity in those cases in which state regulation has been struck down proves not to be an infringement of the right of association, but rather a deep-seated distrust of the motives of the state actors seeking to restrict participation. Thus, for example, the Supreme Court characterized its striking down of filing fees in Texas as having been prompted by the fact that the fees charged Awere so patently exclusionary as to violate traditional equal protection concepts.@20 The strongest claim that parties enjoy a privileged first amendment right of association undoubtedly draws upon Eu v. San Francisco County Democratic Central Committee,21 in which the Supreme Court struck down a Califonria ban on party governing bodies endorsing candidates in the party primary. There are significant limitations on the extent to which Eu provides for a direct right of association for the parties. Critically, the

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See, e.g., Bullock v. Carter, 405 U.S. 134 (1972).

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468 U.S. 609, 621 (1984)(Athe local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship. Accordingly, we conclude that the Jaycees chapters lack the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women.@). 20

Lubin v. Panish, 415 U.S. 709 (1974).

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489 U.S. 214 (1989)

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subject of the regulation was not a limitation on the state being able to condition access to the party, but rather on the form of communication that the party could direct to voters. Clearly, the Court in Eu viewed the primary first amendment concern in terms of speech and communication rather than institutional autonomy: California’s ban on primary endorsements . . . prevents party governing bodies from stating whether a candidate adheres to the tenets of the party or whether party officials believe that the candidate is qualified for the position sought. This prohibition directly hampers the ability of the party to spread its message and hamstrings votes seeking to inform themselves about the candidates and the campaign issues.22 The right of association that the Court does then recognize in Eu is directly tied to the overriding concern with speech and political communication, and is at least in large part derived instrumentally from the need for effective speech in the political domain. The closest case support for a direct claim of party autonomy turns out to be Duke v. Massey,23 which involved a challenge by David Duke to the Republican Party of Georgia’s refusing to include him in that state’s presidential preference primary. The Republican Party in defense invoked a principle of party self-definition which would have been grounded in a party-based right of association. The decision to exclude Duke, however, was upheld not on the basis of the constitutional rights of the party, but on the basis of the state’s interest Ain protecting political parties’ right to define their membership . . . .@24 Thus, the right at stake was that of the party seeking to avail itself of the discretion granted to it by state law, not a first amendment challenge to the ability of the state to expand the party’s definition of membership against a claimed freedom of association.

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489 U.S. at ____. 87 F.3d 1226 (11th Cir. 1996). Id. at ___.

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Similarly, in Republican Party of Texas v. Dietz,25 a group of Log Cabin Republicans, the party supporters of gay and lesbian civil rights, sought to display their materials at the party’s state convention. The Party’s executive director rejected the application to participate at the convention and the party, similar to the Republican Party in Duke, claimed an associational right to impose limitations on who could participate in the party’s internal affairs. The Texas Supreme Court, however, circumvented the issue of an affirmative party freedom of association by finding that the exclusion of the Log Cabin Republicans from the display area of the party convention did not constitute state action and, accordingly, did not implicate first amendment concerns. In neither Duke nor Dietz, however, did a party assert an affirmative right to control membership against a conflicting state rule. Indeed, the only cases in which the right to define the party has arisen affirmatively has been either in protecting one party against an exclusionary rule imposed by a legislative majority of the other party,26 or where there are competing regulatory structures between state and national parties.27 There is surprisingly little, if any, discussion in the caselaw of the right of a party to restrictively define its membership in a fashion not prescribed by state law.28 The claimed right of association to restrict participation in the activities of the major parties as against contrary state regulation does not have much force. It may be, as Professor Lowenstein argues, that the major parties are Agrown-ups who, generally speaking, can be expected to take care of themselves.@29 But it is nonetheless surprising how limited the claimed right of associational autonomy is in the caselaw. The second point will perhaps make the absence of the right of association less surprising. The litigation over Prop 198 reveals again that the invocation of the first amendment is not a Atrump,@ as that concept is

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940 s.W.2d 86 (Tex.Sup.Ct. 1997).

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The leading case here is Tashjian v. Republican Party, 479 U.S. 208 (1986), which I discuss below. 27

The most notable is Democratic Party of the United States v. Wisconsin, 450 U.S. 107 (1981).

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Thus, for example, the White Primary cases involve repeated challenges to the Texas Democratic party excluding black voters by means consistent with state law. 29 Daniel H. Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 Tex. L. Rev. 1741, 1790 (1993).

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used to define fundamental spheres of liberty thought to be relatively immune to state incursion.30 The first amendment is increasingly seen as both instrumental in securing the conditions necessary for democratic governance,31 and as a participatory vehicle for greater citizen involvement in public discourse.32 When pressed, these approaches point to a conception of the first amendment as Astructural,@ which is defined by Professors Schauer and Pildes as turning on a view that Arights are means of realizing various common goods, rather than being protections for individualist interests against collective judgments about those common goods.@33 One need not accept the argument that all first amendment rights are contextually specific34 to accept that as a simple matter of caselaw, the right of association is not as robust as the right of individual expression,35 and that even the latter is often deeply conditioned in the electoral context. As the Supreme Court recognized in Roberts v. United States Jaycees, [T]he Court has recognized a right to associate for the purpose of engaging in those activities protected by the

30 For the classic formulation of such Arights against Government@ and by extension, against majoritarian preferences, see Ronald Dworkin, Taking Rights Seriously 193-94 (1977). 31

The classic formulation here comes with Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948). 32 See Robert Post, Equality and Autonomy in First Amendment Jurisprudence, 95 Mich. L. Rev. 1517 (1997). 33 Frederick Schauer & Richard H. Pildes, Electoral Exceptionalism and the First Amendment, 77 Tex. L. Rev. 1803, 1814 (1999)(emphasis in original). 34

See id. at 1822-24; Robert Post, Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1271 (1995)(arguing that AThere is in fact no general free speech principle . . . .@). 35 At best the right of association emerges as an instrumental claim necessary to the effectuation of other, independently protected first amendment values. Cf. Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) ("An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed"). Perhaps the weakest effort at a freedom of association claim was made by Dallas adult motel owners who argued that a city ordinance requiring a minimum rental time of ten hours for hotel rooms violated patrons’ rights of freedom of association B an argument that, not surprisingly, failed to garner much support on the Supreme Court. FW/PBS Inc., v. City of Dallas, 493 U.S. 215 (1990). The Court has left open the possibility that the right of association may attach to some forms of intimate relations that should presumptively be immune from state oversight. But see City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)(holding that right of association not implicated in ordinance limiting use of dance halls by minors, since A[i]t is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of ‘intimate human relationships’ referred to in Roberts.@).

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First Amendment -- speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties. The intrinsic and instrumental features of constitutionally protected association may, of course, coincide. In particular, when the State interferes with individuals' selection of those with whom they wish to join in a common endeavor, freedom of association in both of its forms may be implicated . . . . Still, the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which one or the other aspect of the constitutionally protected liberty is at stake in a given case.36 Even if the distinction between the greater protection of freedom of speech versus of association were collapsed, it remains the case that the history of first amendment law does not yield a categorical right against regulation, but a highly nuanced protection of the structures of democratic participation.37 Every aspect of state involvement in the electoral process, from the nature of the elective office to the ballot itself, Asimultaneously advances and constrains collective choice.@38 Not suprisingly, constitutional doctrine in this areas is correspondingly nuanced. Moreover, in claiming the mantle of the first amendment, the positions of the major parties can hardly be conceived of as inhering in some organic vision of citizenship. The powerful position of the major parties is an artifact of a distinct political arrangement: the use of singlemember, first past the post electoral districts as the basis for all major elective offices. It is this particular electoral mechanism that promotes the existence of two and only two serious parties, and provides a strong

36 468 U.S. 609, 617 (1984). Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)(striking down application of antidiscrimination ordinance to St. Patrick’s Day parade based upon infringement on speech rather than freedom of association). 37 38

See Robert Post, Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1279 (1995).

Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics Line, 77 Tex. L. Rev. 1751, 1771 (1999).

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measure of immunity against displacement by third parties.39 It ill behooves the beneficiaries of such a state-conferred privilege to claim an absolute immunity against the state conditioning the terms under which they may operate within that beneficial environment.40 Third, as a conceptual matter, Prop 198 is a more difficult issue than prior modern cases establishing legal regulation of internal party affairs. In Tashjian, for example, the threat to the ability of the Connecticut Republican party being able to woo independent voters came from the Democratic-controlled state legislature. The challenged state prohibition easily fit within an analytic model that emphasizes strict scrutiny of stateimposed anticompetitive measures. Under this analysis, the political Ains@ were using Connecticut law to impede the ability of the Aouts@ from improving their competitive position.41 Prop 198 and the prior Alaska, Louisiana, and Washington state experiments with blanket primaries avoid this particular problem since no party is trying to leverage its temporary hold on state office to frustrate or impede subsequent challenges from the other major party. Thus, the California initiative could not be fitted into a model that asks whether the Aregulation was intended to and did have a serious obstructive effect on the minority party.@42 Indeed, on first impression, this fact might appear dispositive.43 The blanket primary emerges in California from the initiative process independent of the use of legislative majority power to impose conditions on the temporal Aouts.@ Accordingly, it is not a classic anticompetitive lockup of the political process through the instrumentalities of governmental power.44 The upshot is that the classic first amendment based arguments thus far recognized offer little in the way of protecting political parties against the imposition of the blanket primary. At best the parties can articulate a

39

This is the principle known as Duverger’s law. See Maurice Duverger, Political Parties. For a fuller exposition of this principle, see Issacharoff & Pildes, supra note ____, at ____. 40

I am indebted to Pam Karlan for the original formulation of this argument.

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Tashjian v. Republican Party, 479 U.S. 208, 224 (1986)(legislative regulation Arepresents the views of the one political party transiently enjoying majority power@). 42 Daniel H. Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 Tex. L. Rev. 1741, 1788 (1993). 43

As, indeed, it seemed to me. See Issacharoff & Pildes, 50 Stan. L. Rev. at 668 n.100.

44

See Issacharoff & Pildes, supra.

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weak right of association that has proved unavailing in diverse areas of constitutional election law, such as allowing fusion candidacies45 or in challenging most ballot access restrictions.46 But the parties are unable to claim the sort of victimization at the hands of a rival legislative coalition that carried the day in Tashjian. Indeed, to prevail against this form of regulation, the parties must be able to articulate an untested species of rights against the majoritarian preferences of the electorate, including the partisans of both major parties, as the reviewing courts repeatedly stressed. There is little in the first amendment tradition to date that holds out promise for this argument. B. Parties in a Competitive Electoral Process. Let us compare the California blanket primary experiment to two alternative electoral regulations, one actual and the other hypothetical. The first is the requirement that parties select their candidates for office through the primary process, as is indeed the norm today in the United States.47 That requirement dates back about a century and served to drastically curtail the power of party bosses to hand pick candidates. As best can be reconstructed, this reform in state election law has never been challenged successfully48 and is not currently perceived as a threat to rights of

45 See Timmons. In a fusion candidacy, a third party cross-endorses one of the candidates of a major party. This both gives greater weight to the electoral influence of the third party and serves as a source of non-centrist pressure on the major parties. See Issacharoff & Pildes, supra note ___, at ____. 46

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I use the nominating primary as one pole since it is described by Professor Leon Epstein as Acrucial to establishing our parties as public utilities and in subjecting them to a kind of regulation virtually unknown in other Western democracies. Leon Epstein, Political Parties in the American Mold 168-69 (1986). 48 See, e.g., Lightfoot v. Eu, 964 F.2d 865 (9th Cir. 1992), cert. denied, 507 U.S. 919 (1993)(Aif the goal of California’s Progressive reformers was to deliver power over the political process from the hands of party bosses and special interests into those of the people, no measure short of the direct primary would be adequate. We therefore hold that the State’s interest in enhancing the democratic character of the election proces overrides whatever interest the Party has in designing its own rules for nominating candidates@). I have thus far found no successfully challenging party primary requirements, although research is continuing. The relative lack of challenge may be, in part, an artifact of these reforms having been enacted at a time when the first amendment had much less

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association. At the other extreme, imagine a variant on the blanket primary in which all voters could vote in the primary election of both parties simultaneously, but for all contested offices B a process I will refer to as the fully open primary. Thus, voters could vote in the gubernatorial and senatorial primaries of both parties, and for all other elective offices as well. If the primary requirement is indeed constitutionally benign and the fully open primary system is suspect, there needs to be a more sophisticated claim than simply the assertion of some undifferentiated freedom of association.49 There also needs to be some compelling evidence of why the blanket primary is more like the suspect completely open process than the less intrusive primary requirement. The argument that a blanket primary system, even in its modest Prop 198 form, is anticompetitive must begin with an account for why some measure of organizational autonomy is necessary for a competitive political order. While there is evidence that maintaining party independence has historically served in California as a means to insure vitality in the political process,50in order for this argument to rise to the constitutional plane, the evidence would have to prove that party selfdefinition of membership in the processes leading to nomination of the party’s candidates is indispensable for effective partisan competition. Put another way, there is ample evidence that the means by which voters have

vitality as a restriction on state action. It is striking that some commentators have assumed the unconstitutionality of such state regulation, despite the apparent lack of case support. See David Lubecky, Setting Voter Qualifications for State Primary Elections: Reassertion of the right of State Political parties to Self-Determination, 55 U.cinn. L. Rev. 799, 830 (1987)(asserting that if state nomination requirements are contrary to wishes of political party, Athe fundamental constitutional right of political association mandates that the party’s choice of primary form prevail@); Arther W. Weisburd, Candidate-Making and the Constitution: Constitutional Restraints on and Protections of party Nominating Methods, 57 S.Cal.L. Rev. 213, 281 (1983-84)(Astatutes compelling parties to choose candidates in primary election appear to be unconstitutional. The cases make clear that a political association has a first amendment right to determine for itself how it will conduct its affairs. Statutes requiring primaries clearly deny that right.@) 49 The courts in California Democratic Party applied a variant of this reasoning by asking whether open primaries must also be held unconstitutional if a party objected to allowing non-party members to participate in its candidate selection process. 169 f.2d at 653. 50

See Bernard L. Hyink et al., Politics and Government in California 43-46 (9th ed. 1975)(describing how the elimination of Across-filing@ candidates across both major parties prompted greater interparty competition).

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participated in politics has been through the political parties, and that, as a structural matter, Apolitical parties created modern democracy . . . and modern democracy is unthinkable save in terms of the parties.@51 But does that mean that expanding the right to participate in the nomination process would disable effective participation or render competition impossible? If this argument is to work, there must be some clear demarcation between compelling parties to hold primaries and forcing them to open participation in those primaries to voters not registered with the parties. The key difference between the compelled primary system and my hypothetical fully open primary must be the difference in the ability of the parties to control their membership. While any nomination process utilizing primaries reduces the level of control of the party apparatus, the difference must lie in the question of to whom are the party activists accountable. The argument against the fully open primary must begin with the propensity of a first-past-the-post system to yield two and only two relatively centrist parties. So long as these parties are capable of selfselection and self-definition, they will gravitate toward the center in search of the median voter. But each party will also need to differentiate itself from the other so as to maintain its hold on non-median voters of one pole or the other, from whose ranks the party activists will be drawn.52 It is these party activists that are able to fuel the electoral machinery necessary for election, including the difficult task of mobilizing voter turnout.53 Because these party activists are struggling with the left or right half of the electorate, to use the most familiar style of demarcation, they can force an

51

E.E. Schattschneider, Party Government 1 (1942).

52

This is particularly important since the demise of patronage through civil service reforms and first amendment impediments to the discharge of office-holders from rival parties. See Rutan. As a result, Aparticipating activists . . . [have] incentives [that] appear ideological or programmatic in accord with national party orientations.@ Epstein, supra, at 153. 53

Including the difficult task of actually inducing citizens to vote. As much as there is complaining about the low levels of voter participation, it is useful to ask, as public choice theorists have done, why any voter would actually turn out to the polls. Rare is the election that is won by one vote, so the incentives to free ride and enjoy quiet solitude or the greater collective pleasures of a bar or ballgame should surely overwhelm any incentive to Amake a difference@ that might propel a voter to the polls. The wonder of it all is that people do actually turn out in massive numbers in spite of the unlikelihood that their vote will have any instrumental value.

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internal struggle over broad political issues to push the parties away from the median voter’s center. It is that capacity to alter the party platform and wrest control from the centrist tendencies that fuels partisan activism. It is also that tension within the parties between the partisan activists, the candidates seeking to appeal to the median voter, and the party governmental structure that is a major source of ferment in American politics.54 What would happen under the fully open primary system that I hypothesize? By definition, there would be no differentiation of the electoral composition of the electorate in the primary. Each party would have its nominee elected by the median voter drawn from across the electorate, rather than across the left or right half of the electorate. The predicted result would be two centrist candidates, with overlapping electoral bases. Appeals to the left and right flanks of the electorate would be canceled out in each party’s primary, since the pulls from the poles would be neutralized. The result would be a nomination process that more fully reflected the true preferences of the median voter than any system that restricted participation to the partisans of one party, even if, as under the California blanket primary system, they were partisans for one office in one election only. If the courts reviewing Prop 198 found the state’s claim of a compelling interest in rewarding the preferences of the median voter to be constitutionally sufficient, then the fully open primary would more than satisfy that test. But the corollary would be that the incentive for party activist participation would be correspondingly diminished. Already, A[t]he fact that party membership or activism does not automatically carry with it a determining role in the candidate-selection process helps to explain why post-patronage parties in most states should be less highly developed than

54 This view of the parties is anticipated by Richard Hofstadter, writing before the advent of public choice approaches that have gained currency in political science. Hofstadter argued that the parties’ Ainstitutional structures are in good measure an outgrowth of the efforts necessary to connect the parliamentary party and the mass party. The modern party is, in this respect, the disciplined product of regular party competition in the forum of public opinion.@ Hofstadter, supra, note ___, at 41.

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their European counterparts.@55 But taking away the capacity to appeal to a segment of the electorate in the nomination process would remove the remaining incentive for activists to devote their efforts to the party. The party would no longer have an electoral identity from the center toward one or another of the poles, and the advantageous position of the activists would be restricted.56 There would also be a predictable loss of legislative coordination among the party’s elected officials, since legislative deals would not readily translate into disciplined voting blocks within the party. On this view, the role of the activists in delivering votes within the partial political spectrum of the modern major parties is what gives American politics its grist, keeps the parties from collapsing into the center, and provides the incentives for coordination in governance. This argument raises more questions than it answers. First, even under the fully open primary, does the disruption in the form of political organization mean only that a new equilibrium will emerge in which prenomination processes take on the coordination function currently played in the party nomination process? Second, even if no such alternative processes emerge, would the resulting limitation on party organization truly impoverish politics under either the fully open primary or the California blanket primary? And third, does the constitution require that parties be able to play the role that has characterized American politics since the midnineteenth century? The first two are empirical questions that political scientists have yet to answer conclusively. In the California litigation, for example, the social science evidence tended to prove that a blanket primary system could result in the alteration of some electoral outcomes and the prospect, perhaps realized on some occasions in states with blanket primaries, for strategic crossover voting so as to disable a potential strong candidate.57 This

55

Epstein, supra note ___, at 154.

56 Some evidence for this proposition was presented at trial in California Democratic Party based on the experience in Washington State. The courts summarized this evidence as tending to establish the A[t]he corollary to this loss of discipline is a loss of power to party activists such that the ardor of party volunteers and activists may be dampened in a system that permits nonparty members to exert influence over the party’s selection of a candidate.@ 169 F.2d at 658. 57

See 169 F.2d at 655-58 (summarizing evidence on this score).

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evidence, even if conclusive, is insufficient to ground any constitutional challenge. The constitution cannot possibly be read to lock into place preexisting party outcomes. If that were the case, then the state imposition of the primary system would be unconstitutional as an alteration of outcomes under the then existing internal process of the candidates being nominated by the party apparatus -- as indeed would any state regulation whatever of party candidate selection mechanisms. Rather, a proper empirical foundation would have to be laid for the claim that the fully open primary, and by extension, the blanket primary, so completely disrupted the ability of political parties to function as to defeat their ability to play their role in the political process. Ultimately, the claim must be that absent the institutional form of intraparty competition, voters would not be able to exercise meaningful retrospective judgment about the performance of their representatives.58 In turn , the function of elections in a representative order would be undermined. Were such a claim properly supported empirically, there would be a direct confrontation with the void in the constitution on how democratic governance should work. The fact remains that the constitution as crafted was deliberately a Aconstitution against parties.@59 Other than minimal constraints on the qualifications for federal office and the historical embarrassment of the three-fifths counting of slaves, the federal constitution is conspicuously silent on the actual conduct of democracy. The electoral process was the province of the states, and neither the Bill of Rights nor the Reconstruction Amendments did much to alter that arrangement, save to expand individual access to the ballot. The weight of constitutional history, as the courts in California Democratic Party properly noted, runs decidedly contrary to the claim of an autonomous zone for political parties: There is a Asubstantial state interest in encouraging

58

For a formal model of the role of retrospective judgments in disciplining representative government, see John Ferejohn, Incumbent Performance and Electoral Control, 50 Public Choice 5 (1986). 59

Hofstadter, supra note ___, at 40.

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compromise and political stability, in attempting to ensure that the election winner will represent a majority of the community@ . . . . In attempting to reduce partisan strife, Proposition 198 is similar to other measures adopted by the States to deal with the problem of factionalism, a problem that deeply troubled the framers of the Constitution.60 The only possible textual grounding for the claim of an effective right of participation is the Republican Guaranty clause, which the Supreme Court condemned to desuetude nearly a century ago.61 Textual authority aside, however, the form of constitutional argument has to change from the failed associational claim of political autonomy to the sort of functional argument invited by the Supreme Court in United States Jaycees. Unfortunately, there is little in constitutional text or doctrine that easily prepares the terrain for such a move.62 Conclusion Political parties represent a clear case of constitutional failure. The Madisonian assumption that appropriate mechanisms of political accountability could be assured by formal separation of powers at the governmental level broke down within only a few years of the founding of the Republic.63 By the present period, it is difficult to imagine democratic

60

169 F.3d at 662, quoting Storer v. Brown, 415 U.S. 724, 729 (1974).

61

See Pacific Telephone & Telegraph, CITE. See also, Issacharoff, Karlan, & Pildes, supra note ___, at ____ (describing moribund status of Republican Guaranty clause). 62 Professor Pildes and I summarized this point as follows: AWith respect to democratic politics, then, the American Constitution is a curious amalgam of textual silences, archaic assumptions, and a small number of narrow, franchise-focused amendments that reflect more modern conceptions of politics. Particularly in the arena of democratic institutional design, the American Constitution reveals its age. More modern constitutions devote considerable space to the institutional framework for politics and tend to reflect the structures now associated with democracy, such as political parties.@ Issacharoff & Pildes, supra note __, at 715-16. 63

This approach was by no means limited to Madison. As Richard Hofstadter points out, John Stuart Mill wrote his entire treatise on Considerations on Representative Government without seriously addressing the role of political parties. Hofstadter, supra note __, at 52.

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governance independent of the institutional participation of the parties. But much as the modern political party is the engine of democratic participation and competition, it is also the creature of a regulated political environment. It may be easy to envision parties raising claims for equal protection vis-avis their competitors, or for procedural fairness in allocating access to the ballot B as indeed is fairly well established in the caselaw. But it is difficult to see these institutions claiming first order rights of independence from the state regulatory environment in which they were created and have thrived. Asserting the constitutional right of parties to play the role they have assumed in American politics requires a far more contextual and institutional approach to political rights than either the original constitution or subsequent caselaw has recognized. Whether such an approach is amenable to judicial administration and can be fitted within the unreceptive constitutional text remains to be seen. But it is this claim, not a fictive right of autonomy, that should fuel constitutional concern over the fate of political parties.

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