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The APSA Report hypothesized that increasing the say of party members with respect to both candidates and platforms by adopting a direct primary would improve buy-in to a national platform from the party faithful. at 66–67 (arguing that “general and wholehearted support of the party program” would follow from the reorganization of the party “on democratic lines” and that “cohesion [would] spring naturally from willingness to support aims which the member himself has helped to shape and has come to accept”). See Carl Hessler Jr., Cross-Filing Can Be a Confusing Part of Municipal Elections, Mercury (May 15, 2001), MP/20010515/news01/305159996 [ 196, 210 (2008) (Kennedy, J., concurring) (upholding New York’s nomination process for judicial candidates in response to an argument that the system unconstitutionally burdened First Amendment rights by making “it . And it is through the act of election to a greater extent than through anything else that more widespread popular participation may be achieved in the political process.”). The Political Psychology of Democratic Citizenship 23, 23–51 (Eugene Borgida et al. 631, 633 (2014) (explaining the “issue publics hypothesis” that democratic accountability demands only “a pluralist division of labor” whereby a panoply of “issue publics” with “the necessary information to monitor claims and actions of political leaders” compensates for the lack of “a broad base of information of politics” in any individual voter); Jennifer Jerit et al., Citizens, Knowledge, and the Information Environment, 50 Am. Inequality and American Democracy: What We Know and What We Need to Learn 156, 189 (Lawrence R.At the same time, limiting participation in the primary to party members would provide an opportunity to produce more ideologically distinct candidates and platforms. It was frequently used by incumbents, whose name recognition gave them an advantage even in the primary of the opposing party. Distinct party brands would be meaningless if the underlying product—the legislative record—did not hold up. Jacobs & Theda Skocpol eds., 2005); Suzanne Mettler, The Transformed Welfare State and the Redistribution of Political Voice, The Transformation of American Politics: Activist Government and the Rise of Conservatism 191, 211 (Paul Pierson & Theda Skocpol eds., 2007). The bottom line is that we have no choice but to fundamentally reconceive how we might elicit responsive and responsible governance from our political parties.
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. 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. 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.”).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”).While the 2016 election has heightened these concerns, the fact is that for over a decade those who follow politics closely have been sounding alarm bells about the myriad ways the party system in the United States is failing to live up to its intended democratic function. The fact, however, that there are no simple fixes to the ills of our party system should not diminish the value of incremental change. mode of operation is to persuade voters to accept their preexisting agendas; only infrequently and reluctantly, and often in the face of defeat, do political parties modify their platforms to reflect the preferences of their members. (noting that political parties seek to “cede as little policy to voters as possible”); see also Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America 163 (2012) (concluding that data reveals “parties behave more like policy maximizers than vote maximizers, responding to the preferences of the public (and disproportionately to the most affluent segment of the public) when necessary but pursuing their own policy agendas when they can”). Those voters can either vote to support that status quo or vote to “throw the rascals out.” A party-based political system that satisfies this minimal condition encourages democratic responsibility. 267, 356–57 (2004) (Breyer, J., dissenting) (citations omitted); see also Branti v. The theory’s principal payoff was that it appeared to offer a cheap solution to the persistent problem ignorant voters pose for democratic accountability. Most notably, in 2000, the Supreme Court struck down California’s blanket primary, which was open to nonparty voters. On the one hand, data do show increased responsiveness where there is party competition and decreased responsiveness while one party dominates. Hall of competitive moderate districts found Democratic and Republican legislators represent identical districts differently, demonstrating that officials elected in competitive elections do not necessarily cater to the median voter in their roll-call votes. Moreover, the discrepancy between legislators’ roll-call votes and the preferences of their districts does not lessen over time, and despite what one might expect, those elected officials are not kicked out of office for their policy divergence. at 352, 354–59, 364–68; accord Binder, supra note 85, at 108–11 (demonstrating that incumbents “do not pay an electoral price” for legislative performance); Ansolabehere et al., supra note 21, at 154 (arguing partisanship rather than the presence of an ideologically extreme base accounts for candidates’ failure to closely hew to constituents’ preferences); see also Drutman, supra note 7 (summarizing recent literature). 283, 288, 291–98 (2014) (defending alignment theory, in part, on grounds that the existing literature’s focus on structural concerns—participation and competition—has had no traction with the Court). See, e.g., Abu El-Haj, Beyond Campaign Finance Reform, supra note 2, at 1163–70 (explaining how party primaries today drive a wedge between elected officials and their constituents); Martin Gilens & Benjamin I.Some have been preoccupied with ideological polarization and legislative gridlock, See, e.g., Richard H. 1127, 1128–31 (2016) [hereinafter Abu El-Haj, Beyond Campaign Finance Reform]; Kate Andrias, Separations of Wealth: Inequality and the Erosion of Checks and Balances, 18 U. Responsible party government theory underpins both the Court’s jurisprudence on the First Amendment rights of political parties and the particulars of recent calls to reform our party system. of political parties and the constitutional aspiration of self-governance gives rise to a central preoccupation among scholars of American democracy: Given their primary interest in aggrandizing power, how can political parties and the candidates they field be induced to govern responsively? In the 1950s, a group of prominent political scientists, under the auspices of the American Political Science Association (APSA), theorized a resolution to the paradoxical role parties play in modern democracies—a resolution that has dominated the field of political science since its inception. Ass’n, Toward a More Responsible Two-Party System: A Report of the Committee on Political Parties of the American Political Science Association, 44 Am. It facilitates the transformation of the voters’ will into a government that reflects that will. Faced with the limited capacity of individual citizens to monitor elected officials, responsible party government theory sidestepped the difficult task of producing an informed electorate. Ideologically coherent party identification can be seen as a form of “truth in labeling”: the voter knows what he or she is getting. In doing so, it criticized the State’s effort to “chang[e] the parties’ message” and explained it was the decision to deprive the party of control over its preferred candidate that rendered the scheme constitutionally infirm. Martin Gilens’s seminal investigation of policy responsiveness finds, for instance, that party competition, both in the electoral sphere and in legislatures, somewhat increases convergence toward the preferences of the public. Despite these modest findings Gilens recommends “reforms that enhance political competition” insofar as they “can intensify . But here is the catch: Even if increasing party competition would substantially improve policy responsiveness, as far as the Supreme Court is concerned, that patch is off the table. The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, 12 Persp. 564, 573 (2014) (concluding a study of policy responsiveness from 1981 through 2002 by observing that the United States has become a “democracy by coincidence”). 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.