Hardly a day goes by without a headline decrying the hyperpolarization and dysfunction of Congress. 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. Some have been preoccupied with ideological polarization and legislative gridlock,
others with the apparent disconnect between the policies pursued and the preferences of the constituencies represented,
and others still with an important secondary effect—the aggrandizement of executive power.
Whatever the emphasis, there is little question that there is a growing consensus that the American party system is in need of fundamental reform if responsible and responsive governance is to emerge.
In recent years, reformers across the political spectrum have increasingly called for the loosening of federal restrictions on party fundraising.
Advocates of deregulation argue that the rise of Super PACs and similar entities capable of accepting unlimited contributions for independent expenditures, as a result of haphazard, court-driven deregulation, has empowered the more ideologically extreme elements of the partisan network—fomenting political polarization, legislative gridlock, and popular discontent.
Restoring responsible party government, the consensus goes, requires redirecting the flow of money toward the formal party apparatus as the only way to restore moderation and functionality to Congress.
The election of Donald Trump—a candidate who never achieved more than a plurality of the primary vote and had the lowest approval rating of any incoming President—illustrates the costs of the current regulatory regime.
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.
Until recently, not only did it look like party reform in this vein was poised to succeed, but it appeared likely that reformers would manage to constitutionalize their vision.
An obscure constitutional challenge by the Republican Party of Louisiana, carefully positioned procedurally to assure a decision on the merits, looked to be a swift and decisive path to party reform.
The Court that decided Citizens United v. FEC
and McCutcheon v. FEC,
it was assumed, could easily be persuaded to strike down existing federal restrictions on how political party committees raise money for elections.
A ruling in favor of the Louisiana plaintiffs would have leveled the playing field for political parties in their pursuit of campaign donations, thereby bringing into fruition party reformers’ deregulatory agenda.
But the Court refused to take the bait.
In so doing, and also in denying certiorari in a second case seeking clarity on the constitutionality of state-mandated open primaries,
the Justices granted a much-needed opening to reconsider the Court’s political party jurisprudence.
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.
Unfortunately, in doing so, it has adopted a set of theoretical assumptions that do not hold true in the real world of contemporary politics. 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.
Responsible party government theory underpins the Court’s jurisprudence on the First Amendment rights of political parties. It is responsible party government that explains not only why current constitutional doctrine entrenches the two-party system but also why it invariably sides with the leaders of the two major parties when internal disputes arise.
Accordingly, whatever the precise ruling might have been in Republican Party of Louisiana v. FEC, one thing was virtually certain: The Court’s reasoning would have taken place within the confines of this particular account of how to harness the imperfect incentives of political parties to produce democratic accountability. Thus, its recent decisions not to take up important cases involving the First Amendment rights of political parties provide an opportunity to revisit the commitment to responsible party government and, potentially, to head off any efforts to constitutionalize a party-reform agenda that appears doomed to fail.
The commitment to responsible party government in the Court’s jurisprudence, and also among party reformers, is a colossal mistake. Responsible party government has not panned out. The political parties are stronger and more ideologically distinct than in any prior era.
Yet, responsible party government has not emerged. Indeed, as one prominent political scientist has concluded, “[t]he scope for independent action by elected leaders” is especially great today, with the “paucity of elite responsiveness to public opinion extend[ing] even to issues on which public opinion seems to be unusually firm and stable.”
To the extent there is accountability today, it is almost entirely to party donors and ideological groups.
Whereas the debate in legal-academic and policy circles has been driven by fidelity to responsible party government despite its well-documented failures, this Essay argues that it is time to admit that responsible party government has run its course as a means for achieving democratic accountability and, therefore, the Supreme Court’s political party jurisprudence is in desperate need of a theoretical overhaul. Responsible party government is premised on the existence of competitive elections that provide each party with an incentive to mobilize the electorate and, accordingly, address the interests of the median voter.
We, however, live in a world of increasingly uncompetitive elections, and there is no reason to expect that to change anytime soon.
For one, although the Supreme Court has shown fidelity to the need for strong parties, it has been singularly unreceptive to adopting a procompetition theory of the First Amendment that would ensure the requisite conditions for competitive elections.
Thus, absent mechanisms for direct democratic reform, increasing party competition would depend on legislatures acting against their self-interest. Further, there is good reason to believe that the lack of party competition in most places is substantially, and increasingly, a result of ideological geographic self-sorting rather than partisan gerrymandering.
Finally, at least for the moment, reforms aimed to shore up the party leadership’s ability to control its political brand appear politically unpalatable, given the pervasive public mistrust of party insiders.
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.
Without claiming that there are easy solutions to our democratic dysfunctions, this Essay develops the contours of an alternate path to democratic responsiveness and accountability and identifies ways to incorporate it into existing First Amendment doctrine.
The proposed alternative path seeks to address our current crisis of responsiveness by reforming political parties as associations.
Viewed as associations, the capacity of political parties to foster a functioning democracy depends less on party leaders defining and enforcing a coherent platform and more on the depth and breadth of the party’s political networks. The primary impediment to responsive governance is not weak, mealy-mouthed political parties. 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. Those who have called for reforms “targeted . . . to build up the institutional parties as . . . engines of broad participation in politics” are exactly right.
Reinforcing the chains of democratic accountability lies in strengthening elected officials’ social ties to activists and activists’ ties to a broad and representative electorate, through the use of peer-to-peer strategies.
A vast body of sociological and political scientific research demonstrates that relationships, far more than ideological commitments, drive political mobilization, organization, and information transmission.
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.
It is also possible to see why uncontrolled deregulation of party financing is not necessarily the answer.
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. Conceiving of parties almost exclusively as ideological speakers, 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.
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”
and seeks a thicker form of democracy in which the political participation of ordinary citizens is not confined to “the general election, with the table already set and the menu already chosen.”
But it does so without ignoring the fact that “somebody is going to organize politics,” and that somebody is likely to be somebody with money, who may well “demand a price.”
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.
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. The current party system is unsustainable in the long term, and reforms grounded in responsible party government are not promising. It is, therefore, critically important not only to entertain alternative theoretical foundations but also to identify corresponding opportunities to address the dysfunctions of our party system in an incremental fashion.
This Essay concentrates on the Court’s First Amendment jurisprudence, identifying opportunities within existing doctrine to avoid constitutionally requiring wholesale deregulation of party finances. In so doing, it illustrates how that same doctrinal vehicle would permit courts to strategically underwrite the strength of those segments of the partisan network that enhance opportunities for social contact between party elites and the broader electorate (including with the aid of money) and thus further the goals of an associational path to responsive governance.
More specifically, this Essay argues for extending the Anderson–Burdick framework, which the Supreme Court developed in cases involving burdens on the right to participate in elections,
to cases implicating the associational rights of the major political parties. The Anderson–Burdick framework has the distinct virtue of requiring courts to weigh the severity of constitutional burdens before imposing strict scrutiny.
Developed to wrestle with the reality that the legitimacy of our democracy frequently depends on establishing election procedures, the test explicitly foregrounds analysis of the burdens, reserving strict scrutiny for cases in which regulatory burdens are severe.
Because it is already sensitive to determining which burdens are of constitutional dimension, it provides a suitable vehicle for integrating the associational-party path into existing doctrine. As such, the Anderson–Burdick framework is also well positioned to attend to the longstanding goal of the Court’s political party cases—ensuring responsible governance.
The associational-party perspective, however, requires two modifications to current doctrine. First, the Anderson–Burdick framework would be extended to all contexts implicating the right to associate, including those involving the two major political parties. Second, and more importantly, the associational-party perspective demands a new scale with which to weigh and differentiate the burdens on a party’s First Amendment rights. In the typical Anderson–Burdick case, courts balance the character and magnitude of the alleged burden on voting against state interests.
In the party context, in weighing the severity of constitutional burdens, the focus would shift to assessing the regulatory impact on a party’s capacity to mobilize broad and representative political participation and facilitate a two-way street of information transmission through party activists. It would, thereby, ensure that First Amendment rights are allocated in ways that are more, rather than less, likely to encourage political parties and their candidates to heed the concerns of their constituents.
The principal mistake of the Court’s doctrine has been its singular preoccupation with protecting political parties, as speakers, from burdens placed on their brand.
The latter modification provides a way to redirect the doctrinal focus from shoring up party elites and their ability to define and control a distinct political brand. Instead, courts would allocate First Amendment rights in ways that prevent regulation from undermining the socioeconomic and intergenerational breadth or the interpersonal depth of partisan networks.
Most importantly, this doctrinal proposal is not entirely a professorial pipe dream. The Supreme Court’s political party jurisprudence is ripe for reform. First, it is already structured around the idea that First Amendment rights must be allocated to facilitate democratic accountability.
As such, it provides a relatively easy point of entry. Further, the extension of the Anderson–Burdick framework would merely rationalize the doctrine. Second, a growing consensus has emerged that our political party system needs fundamental reform if responsible and responsive governance is to emerge.
Thus, there is a good deal of political will, possibly even among the Justices in light of the Court’s recent decisions, for change.
Part I of this Essay begins by recounting the origins of responsible party government and explaining the ways it underpins the Court’s entire party jurisprudence. 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. 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. Part II proceeds to make the case that an alternate path to democratic responsiveness and accountability emerges when one focuses on political parties as associations. It reviews the empirical evidence supporting the importance of social ties to political mobilization, organization, and information transmission as well as the implications of recent changes to the associational qualities of partisan networks. Finally, Part III identifies opportunities within existing First Amendment doctrine to sustain and build partisan networks more capable of producing democratic responsiveness and accountability. Integrating an associational-party perspective into existing First Amendment doctrine is obviously only a first step. The fact, however, that there are no simple fixes to the ills of our party system should not diminish the value of incremental change.
I. From Responsible Party Government to Irresponsible Party Governance
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. 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. It then sets out the evidence demonstrating that the theory of responsible party government has not panned out as expected.
A. Responsible Party Government and the First Amendment Rights of Political Parties
Notwithstanding the Founding Fathers’ opposition to political parties as quintessential factions, the Supreme Court has consistently afforded political parties robust First Amendment rights given their critical part in “the transformation of the voters’ will into a government that reflects that will.”
In fact, the Court has consciously allocated First Amendment rights in ways believed to encourage broader democratic goals, including participation and accountability.
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.
Parties are a puzzle for democracies. On the one hand, representative government in the modern nation state is unimaginable without a party system to organize voters, candidates, and legislators.
As Jonathan Rauch colorfully puts this point: “If the Constitution [is] the system’s DNA, the parties . . . [are] its RNA, translating the Founders’ bare-bones framework” into a working government.
On the other hand, “parties are no great friends of popular sovereignty.”
In the business of reelection, their preferred 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.
Their traditional manifestation is the “machine” and its somewhat unseemly “powerbrokers.”
This tension between the realpolitik 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?
Enter responsible party government theory. 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. 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.
Underlying the theory was a market metaphor: Political parties should be conceptualized as the producers of a product (candidates and platforms) that voters consume.
Just as consumers’ interests are served by competition among producers to make appealing products, the electorate’s interests are served by competition between parties to produce an appealing political brand—one that voters “purchase” on election day. The basic theory is nicely summarized by Justice Breyer in his dissent in Vieth v. Jubelirer:
[P]olitical parties play a necessary role in [transforming the will of the majority into effective government]. At a minimum, they help voters assign responsibility for current circumstances, thereby enabling those voters, through their votes for individual candidates, to express satisfaction or dissatisfaction with the political status quo. 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. It facilitates the transformation of the voters’ will into a government that reflects that will.
The theory’s principal payoff was that it appeared to offer a cheap solution to the persistent problem ignorant voters pose for democratic accountability. 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. 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. 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.”
Professor Michael McConnell summarizes the basic hypothesis well:
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 . . . . Ideologically coherent party identification can be seen as a form of “truth in labeling”: the voter knows what he or she is getting. Voters then have a clearer choice between directions for the country, which enables them to force a shift in policy.
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.
To be sure, legal reforms were necessary. The APSA Report recommended a series of reforms aimed to balance party discipline and voice.
Reforms to the nomination process, in particular, took a central place. The closed primary was the key to the entire initiative. It would provide party members a voice, thereby reducing intraparty conflicts.
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 the same time, limiting participation in the primary to party members would provide an opportunity to produce more ideologically distinct candidates and platforms. 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.
The APSA Report’s analysis of the various alternative nominating processes makes clear its thinking:
The direct primary probably can be adapted to the needs of parties unified in terms of national policy. The closed primary deserves preference because it is more readily compatible with the development of a responsible party system. The open primary tends to destroy the concept of membership as the basis of party organization. Cross filing is bound to obscure program differences between the parties, and to eliminate any sense of real membership on the part of the rank and file. The Washington blanket primary corrupts the meaning of party even further by permitting voters at the same primary to roam at will among the parties.
Other reforms aimed to ensure party leaders could achieve a legislative record to match their brands.
Distinct party brands would be meaningless if the underlying product—the legislative record—did not hold up.
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. 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.
For one, the Court consistently rules in favor of the party leadership’s control of the brand in conflicts between leaders and members. In decision after decision, the Court has permitted the party leadership to utilize the First Amendment as a shield by which it may secure exclusive control of the candidates it will field.
In cases involving intraparty feuds over a party’s message, the Court has sided with the national party leadership over state party leadership.
In conflicts between state party leadership and party members, the Court has sided with the state party leadership.
The Court has, relatedly, created a clear constitutional preference for closed primaries. Most notably, in 2000, the Supreme Court struck down California’s blanket primary, which was open to nonparty voters.
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.
Notably, the Court, in defining the constitutional harm, latched on to precisely what the APSA report had identified as the problem: “The . . . blanket primary corrupts the meaning of party . . . by permitting voters at the same primary to roam at will among the parties.”
As both the Court and the APSA report explained, this enables “a voter to consider himself both a Democrat and a Republican at one and the same moment” and undermines “the development of a program-conscious attitude among party members.”
The Court has yet to strike down a state-mandated open primary, but the writing is on the wall.
Finally, the Supreme Court’s commitment to robust First Amendment rights frequently fades when the political party asserting those rights is a minor party.
Electoral accountability, according to the APSA Committee Report, depends on voters having a clear choice between two, and only two, ideologically coherent parties on election day.
Third parties muddy campaigns by providing voters with a less distinct third option and undermine accountability by allowing candidates to win elections in the absence of majority support.
Clingman v. Beaver’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.
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.
This argument fell on deaf ears. 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. 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”
and “avoid[ing] primary election outcomes which would tend to confuse or mislead the general voting population to the extent [it] relies on party labels as representative of certain ideologies.”
As Justice Stevens astutely observed, the majority’s commitment to the two-party system—a result of responsible party government theory—explains the Court’s decision:
The flimsy character of the state interests in this case confirms my view that today’s decision rests primarily on a desire to protect the two-party system. In [California Democratic Party v. Jones], the Court concluded that the associational interests of the parties trumped state interests that were much more compelling than those asserted in this case. 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.
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. The problem, as will be shown in the next section, is that the theoretical assumptions upon which the Supreme Court has predicated its party jurisprudence do not hold true in the real world of contemporary politics.
B. Irresponsible Party Governance and the Need to Revisit the Theoretical Foundation of the Court’s Party Jurisprudence
Whatever the merits of responsible party government as a solution to the problems faced by mid-twentieth-century American parties, it has not panned out as anticipated. More ideologically distinct than in any prior era, the Democratic and Republican parties today are closer than ever before to the ideal called for by the APSA Committee on Political Parties.
Yet, responsible party government has not emerged. As Professors Jacob S. Hacker and Paul Pierson note wryly, “What the committee coveted . . . was responsible party government. What they got—along with the rest of us—was irresponsible party government.”
Elections are failing to tether government officials to the preferences of their constituents. The verdict, on this point, is unequivocal. Professor Larry Bartels has summed up the data as follows: “Whatever elections may be doing, they are not forcing elected officials to cater to the policy preferences of the ‘median voter.’”
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[,] . . . the paucity of elite responsiveness to public opinion extends even to issues on which public opinion seems to be unusually firm and stable.”
He is not alone in his assessment.
Equally as important, the political parties that have emerged are remarkably ineffective at governing.
Responsible party governance was predicated on the notions that the elected party would be capable of adopting the programs to which it had committed and, thus, could be judged on its legislative record come election day.
The recent norm, however, has been gridlock in Congress and aggrandized presidential power to compensate for Congress’s inability to act.
Nor has the return of unified government produced decisive governance.
Even scholars who continue to adhere to responsible party government acknowledge that strong political parties have not led to responsible party government. Professor Alan I. Abramowitz, for example, concedes that “although the conditions for responsible party government have largely been met on the electoral side, with ideologically defined parties offering voters a clear choice between alternative sets of policies,” responsible and effective party governance has not followed.
Professor Seth Masket, meanwhile, grants that while the two major political parties are more ideologically distinct, including at the state level, than ever before, the accountability that has emerged has largely been to primary voters, donors, and other policy demanders capable of mounting credible primary challenges.
In Masket’s view, the primary obstacle to accountability has been the unforeseen consequences of the move to closed primary elections, which lead “legislators [to] look to their party first and to their district second.”
Yet, political scientists and legal academics continue to adhere to responsible party government almost as an article of faith.
Meanwhile, there is little evidence that the general public’s experience of the United States’ newly polarized democracy is positive.
Instead, the public appears generally dissatisfied with both political parties and a political process in which elected officials repeatedly fail to address the general electorate’s preferences on the rare occasions when Congress is able to get anything done.
Party disillusionment is particularly stark among young voters.
Despite the well-documented failure of responsible party government, no one in the legal academy has been quite willing to tell the Supreme Court that the APSA Committee Report got it wrong in the 1950s. Instead, the tendency in legal circles has been to focus on the most obvious fix, a theoretical patch, so to speak: increase party competition.
On this account, the strategic choice to cater to the ideologically extreme party base depends on knowing one is a shoo-in during the general election because the district is safe for one’s party.
Increasing party competition should therefore resolve the problem.
Whether this would in fact work is somewhat disputed. On the one hand, data do show increased responsiveness where there is party competition and decreased responsiveness while one party dominates.
On the other hand, there are data questioning how much competition affects responsiveness given that voters rarely cast their votes based on overall legislative performance as theorized in the traditional model of responsible party government.
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 Court has been singularly unreceptive to structuring First Amendment doctrine in ways that increase party competition.
At times, it has even been openly hostile to the suggestion that there might be a constitutional interest in fostering electoral competition. In New York State Board of Elections v. Lopez Torres, a case in which judicial candidates challenged New York’s cumbersome ballot access rules, the Court declared:
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. . . . The States can, within [constitutional] limits . . . discourage party monopoly . . . . But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.
Legislators, meanwhile, have zero incentive to approve measures aimed to increase partisan competition.
It is, therefore, time to reckon with the need for a theoretical overhaul. 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.
The Court’s recent refusal to consider two cases involving First Amendment challenges on behalf of political parties squarely framed in terms of responsible party government theory provides a window of opportunity, possibly indicating that some members of the Court are growing wary of the path it has forged.
In fact, cracks in the responsible party government consensus may already be evident.
Washington State Grange v. Washington State Republican Party involved a challenge to the primary system Washington voters adopted when its blanket primary was struck down in the wake of California Democratic Party v. Jones.
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. 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.
Unlike in the traditional blanket primary, candidates select their party affiliation.
The challengers argued that the new blanket primary procedure was constitutionally infirm because nominees associated with the political party were not exclusively chosen by members of the party.
In this regard, the fundamental constitutional burden placed on a political party was exactly the same as in Jones: The party had been stripped of control over its brand, as candidates selected by the system were not authentic representatives of the party.
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.’”
Washington’s new primary system was constitutional under Jones because it did not purport to select party representatives; it selected the two most popular candidates for office to be placed on the general election ballot regardless of party affiliation.
The reasoning in Washington State Grange cannot easily be squared with a commitment to responsible party government theory. 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.
Driving the point home, he wrote:
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. 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 message is undermined; the organization is understood to embrace, or at the very least tolerate, the views of the persons linked with them.
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.
Further, the general election ballot may require a party to associate with a candidate that it perceives as being nonrepresentative of its views.
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. 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. In this regard, the Court’s recent decisions are an invitation to consider a fresh path to responsive and accountable democratic governance.
II. Forging a New Path to Responsive and Accountable Governance
It is time, therefore, to turn to the central contribution of this Essay: the development of an alternative theoretical foundation for achieving policy responsiveness through political parties. Drawing upon the empirical research on the drivers of political participation in both political science and sociology, this Part explains why measures targeted toward cultivating, strengthening, and broadening social ties within partisan networks present an alternative, and underappreciated, path to responsive and accountable governance. The argument is developed in four stages. Section II.A lays out key premises, including the operative definition of a political party, while introducing an overview of an associational-party path to responsive governance. Section II.B describes the empirical basis for believing that social ties not only breed political participation but also offset the limits to voters’ interest and knowledge in politics by facilitating information transmission. The heavy lifting comes in section II.C, which draws out the implications of the empirical research for an alternative path to responsive governance. Finally, section II.D squarely addresses various bases for skepticism, arguing that, whatever its limits, a party-reform agenda tailored to strengthening the associational life of political parties—including by redirecting the flow of money—is significantly more promising than one that is singularly focused on strengthening the political power of party leaders.
A. An Associational Path to Responsive Party Government
The puzzle of how to curb the tendency of elected officials to act out of self-interest or at the behest of special interests has plagued the republic since the Founding. Even as the Founders aspired to a republican form of government in which legislators would govern in the public interest, rather than simply vindicate their constituents’ particularized advantages, they fretted over the potential for elected representatives to act out of self-interest or at the behest of special interests.
Throughout the ratification debates, for instance, Anti-Federalists raised concerns that the new Constitution would give rise to “a system in which the people would be effectively excluded from the world of public affairs and in which national leaders, only weakly accountable, would have enormous discretion to make law and policy.”
The Constitution’s primary answer to the threat of unaccountable politicians is periodic elections.
Regular elections, it was thought, would guarantee that representatives remained bound to their constituents. The structural features of separation of powers and federalism would provide “auxiliary precautions.”
The shortcomings of elections as instruments for ensuring responsiveness are well known.
Among their myriad limitations as vehicles for producing accountability, one has proven particularly intractable: the quality of political participation. Even in a world of competitive districts in which turnout is high and representative, democratic accountability turns on voters having sufficient information to assess the adequacy of representation.
Unfortunately, individuals face significant barriers when it comes to monitoring elected officials, and policy ignorance among voters is much more common than is policy knowledge.
Responsible party government pursued an indirect solution to the pervasiveness of voter ignorance. Presenting voters on election day with a choice between clear ideological brands, it hypothesized, would substitute for actual knowledge.
Meanwhile, an interest in winning office would incentivize the production of brands responsive to voter preferences.
As in the economic market, political parties would compete to provide the most desirable good, and accountability would follow.
The shortcut proved to be fool’s gold. Merely consuming the political brands manufactured by party elites has not been enough to produce accountability.
Despite the increasingly clear choice voters face, the weight of the evidence confirms the Anti-Federalists’ worst fears.
At the national level, our leaders are millionaires, “only weakly accountable” to the people, who leverage their enormous policy discretion largely to the advantage of others like themselves.
Donors and ideological partisans have become the target audience for party brands, and concern for the preferences of the general electorate is largely coincidental.
What then would happen if one sought to create a system of political accountability the hard way—by seeking to increase informed political participation? The relationship between electoral participation and democratic accountability is certainly complex. Still, the necessity of a threshold level of representative political participation—including on election day—is indisputable. No one, not even the authors of the APSA Report, denies that participation of citizens is necessary for accountability.
In fact, the APSA Report identified the “failure to bring about adequate popular participation in politics” as one of the two “conspicuous failings” of the two political parties.
The primary dispute, therefore, turns on whether it is possible to create an informed electorate.
Individual voters may not be capable of monitoring elected officials to hold them accountable,
but the same is not necessarily true for organized voters.
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.
New possibilities arise when one resists the urge to overstate the implications of the data supporting voter ignorance.
While voter ignorance is certainly pervasive, it need not preclude a path to political accountability in which informed political participation plays a critical role. That route, however, becomes visible only when one puts social ties and membership organizations back into the picture.
A substantial body of empirical work supports the hypothesis that intermediary associations, including political parties, can spur political participation and facilitate a two-way street of communication between elites and ordinary citizens.
An associational path to responsive and accountable party governance emerges from this empirical evidence demonstrating the critically important role that association and associations play in mobilizing and informing citizens. It capitalizes on the fact that, as Professor Daniel Lowenstein has astutely remarked, “the term ‘party’ can be and is used with greatly disparate referents.”
While responsible party government adopted a relatively formalist conception of the party as its officers, the associational-party path exploits the sociological fact that the contemporary party organization is a network of individuals and groups connected formally and informally in their efforts to influence elections and government policy.
From an associational-party perspective, the relevant definition of a political party is a sociological one in which “[t]he term ‘party’ is a colloquial shorthand to describe . . . a loose collection of political relationships, some legal and some non-legal, among a diverse set of actors and institutions, all of whom perform important work in furtherance of a common [electoral, policy, and ideological] agenda.”
The party network certainly includes the well-known trinity of elected officials (also known as “the party in office or seeking office”); “party activists,” including paid party operatives and volunteers; and voters (“the party in the electorate”).
But it is significantly broader, including not only legislative caucuses
but also nonparty entities and policy demanders such as the AFL-CIO, Club for Growth, and NRA.
As Professor Michael Kang summarizes:
Beyond a party’s nominees or titular officials (such as the party chairman, spokespeople, and employees), the party comprises . . . a teeming, polyarchic aggregation of politically interested constituents. The kaleidoscopic mass of political activists, volunteers, financial contributors, interest groups, PACs, lawyers, consultants, journalists, and intellectuals who perform important work aligned with the party’s collective agenda are not necessarily bound formally to or paid by the official party.
The sociological perspective further recognizes that elected officials and party leaders operate within the confines of the official party organization only when it suits their interests.
The legal entities of campaign finance are largely window dressing, even as the formal rights of such entities can and do reshape the texture of partisan networks.
Once we see the full scope of the party, it is evident that legal efforts to sustain and build out political parties as associations provide an alternate, and far more promising, path to democratic responsiveness and accountability, especially when married with similar efforts to enhance the associational life of contemporary civic associations.
Contemporary party organizations, while not the membership organizations of bygone eras, have yet to shed their essential associational attributes.
The era of nineteenth-century urban machine politics that depended on the confluence of relatively strong personal ties and a formal organization bound by patronage is long gone.
Yet, even in the twenty-first century, political parties remain networks of individuals and groups—activists, donors, officeholders, and dealmakers—tied together and to the electorate by social connections of various strengths.
Beyond their capacity to act as vehicles for aggregating and amplifying preferences and perspectives, the formal parties have an associational life, although there is great variation in the depth and breadth of that life. The national committees of the two major political parties, for example, largely function as vessels through which to collect and distribute donations. Like other tertiary associations based in Washington, D.C., they are professionally managed and donor funded.
Their professional staffs are selected for their strong ties to elected officials and donors.
The primary interaction these committees have with the broader public is through membership donations, with at least some emphasis on small donors—both because it is to their electoral advantage to do so and because federal law constrains their ability to solicit big donations.
Small donations do not necessarily lead to social interaction with party elites. Even so, such entities are able to collect money only because they are situated within a partisan social network capable of mobilizing voters on election day. Other nodes within the formal party operate more like the parties of the nineteenth century. Organizations like the Democratic National Committee (DNC) and Republican National Committee (RNC) remain participatory and federated, and they regularly bridge ties between party elites and activists.
Super donors, meanwhile, operate in insular social and professional networks; their strong ties to one another enhance both their ability to fundraise and their access to party leaders.
The picture is equally complicated at the local level. While some local party organizations are well integrated with membership-based associations, such as labor unions, churches, and firefighter and law enforcement organizations, others are dominated by business interests and socially insulated from district constituencies.
The power of the latter derives from the money that they provide to bankroll candidates rather than from the social networks they are capable of tapping on election day.
Wed to responsible party government and conceiving of parties narrowly and almost exclusively as ideological speakers, party reformers have been blind to the democratic potential arising out of the associational diversity within the partisan network. This blindness has prevented systematic consideration of both the part association can play in mobilizing and informing citizens and the ways that building out the associational life of contemporary political parties—by shoring up those nodes of the partisan network capable of fostering social ties between elected officials and activists and between activists and constituents—could contribute to good governance.
B. The Democratic Returns of a Party’s Associational Life
With a clearer sense of what is being proposed, it is time to review the empirical evidence demonstrating the critically important role that association and associations play in mobilizing and informing citizens. The existence of an associational path to responsive party governance derives from marrying the insight that contemporary political parties retain significant associational qualities with two relatively uncontroversial empirical findings pointing to the significant political returns of those associational qualities. First, social ties, far more than ideological commitment, drive civic and political participation.
Second, information travels best through social networks.
The drivers of political participation are unquestionably multifaceted, with time, money, education, civic skills, and political interest all playing significant roles.
Still, one finding emerges time and again: Individuals who are asked to engage civically and politically are far more likely to do so than those who are not.
A recent inquiry into the drivers of participation in state politics, for example, found that “contact from the political parties and other organizations” was “especially important in motivating participation in state politics.”
In doing so, it noted further that the organizational strength of state and local parties shaped the time and effort of those activated (a point to which this Essay will return later).
In this regard, it should not be surprising that a key attribute of nonvoters is that they have not been asked to vote.
Relationships and social networks, far more than ideology and belief, drive political recruitment and sustain political activism.
Existing social ties frequently explain who is likely to be asked in the first place.
In fact, the seminal study found individuals are most likely to be recruited by individuals whom they know from civic associations.
Equally important, those who are asked are much more likely to accept the invitations to take political action if they are asked by someone they know.
Weak social ties are particularly valuable in this regard because they provide the opportunity to expand a political network.
Beyond the value of the initial contact, research also shows that once formed, relationships both breed and sustain political action. This effect is influenced by the strength of the personal ties involved. Strong personal connections, in particular, frequently explain the choice to engage in time-consuming, sustained, risky, or expensive endeavors.
Thus, even party activists turn out to stay engaged because of the friendships and social contacts associated with the work.
Politicians know well the electoral value of personal ties and social networks. For much of the twentieth century, the Republican National Committee cultivated personal networks of activists to broaden its electoral base.
In the 1950s, for example, it trained women on how to converse with their neighbors in order to facilitate fundraising.
President Barack Obama’s ground game depended on 2.2 million volunteers to canvass among friends and neighbors, equipped with both their own local knowledge and a list of persuadable voters generated by the state-of-the-art analytics developed at headquarters.
Tellingly, the primary task assigned to paid staffers was to train local volunteers to use personal narratives to persuade neighbors and friends to vote for Obama on election day.
In 2012, when faced with polls showing that a substantial percentage of his 2008 supporters were wavering, Obama extended this strategy to the virtual world, using social media, not just neighborhood geography, to identify social ties that could be harnessed.
More specifically, the campaign turned to the Facebook pages of individuals already committed to the reelection campaign to “identify persuadable friends,” focusing specifically on friends with strong ties.
Relationships built during the Obama campaign also sustained it.
The authors of a recent study of Obama’s ground game note that volunteers accepted “the hard ask”—defined as a significant and accountable commitment to work for the campaign—largely as a consequence of “the strength of the relationship the organizer had built with the supporter.”
Paid organizers, moreover, spent significant time developing these relationships, which began with a one-on-one, face-to-face meeting in which the goal was to help organizers assess the particular strengths and abilities of potential volunteers so they could tailor their “hard ask” appropriately.
The authors further observe:
OFA’s ability to motivate volunteers and persuade and turn out voters depended in large part on the strength of interpersonal connections . . . . People may have joined the campaign because of Obama’s opposition to the war in Iraq or his stance on gender equality, but, as many of our interviewees told us, they put long, thankless hours into the field because of their relationships with others.
The Obama campaign was neither the first, nor the last, presidential campaign to harness personal ties to achieve electoral ends. In 2004, one-third of eligible New Hampshire primary voters reported having been invited to a local house meeting to support Howard Dean, often by volunteer supporters.
That same year, President George W. Bush launched a successful final drive to bring voters to the polls through a face-to-face operation, inspired by Amway, in which volunteers were encouraged to target voters with shared associational affiliations—such as chapters of the NRA or Boy Scouts—during the last seventy-two hours of the campaign.
In 2016, Ted Cruz’s campaign manager employed a similar strategy, explaining that his goal was “to personalize each contact . . . to have neighbors call neighbors, pro-lifer to pro-lifer, gun owner to gun owner.”
Beyond the tendency of social ties to facilitate political participation, it is well established that information, including about politics, travels best through social networks.
Tea Party activists at the grassroots level have consciously exploited this fact, having made a concerted effort to ensure that the political information they wish to disseminate to the broader electorate arrives through trusted sources.
Both Facebook’s “like” function and Twitter are predicated on this dynamic.
In sum, there is strong evidence that association itself—that is, personal ties, weak and strong—can play at least two critical roles in the democratic process: First, social ties are capable of drawing citizens into politics, including those that are not terribly interested in politics, merely on the strength of the friendship. Second, they are efficient vectors when it comes to information transmission. These dynamics, moreover, are likely to be quite familiar to many of us: the discovery of the risks that the shortage of large-animal vets poses to our food supply learned from a college-age babysitter, the novel read based on a friend’s recommendation, or the campaign house party attended because the host is a family friend.
C. Party Strength—Envisioning the Shape of a Responsive Party System
The heavy theoretical lifting that remains is an exploration of the implications of this empirical research for strengthening the political parties in the interest of responsive and accountable governance. First, what can we infer from this empirical research about the shape partisan networks would need take to yield democratic returns? Equally important, is it possible to nudge parties in that direction under current sociopolitical conditions? Ultimately, the remaining two sections of this Part aim to explain how a party-reform agenda tailored to broadening and strengthening the associational life of political parties could improve policy responsiveness notwithstanding what we know about the myriad sources of electoral dysfunction today.
1. The Shape of Partisan Networks. — Without denying that the causes of our crisis in representation are numerous, an associational path to responsible party governance takes as its starting point a significantly underappreciated transformation of the political landscape: the increasing social isolation of political elites and its impact on both participation and the flow of political information between ordinary Americans and their leaders.
The contrast between the social networks of political elites today and those in prior eras of American history is both stark and revealing. While democratic politics is frequently a contest among elites,
prior to the advent of mass media, candidates needed “to build extensive interpersonal networks not confined to particular occupational or social circles” to garner reputation and votes.
As such, the path to political power ran through membership in socioeconomically integrated civic associations—the Shriners, the Rotary Club, the American Legion.
These groups required regular attendance at meetings and frequently involved election to higher offices and attendance at federated meetings.
Political elites were thereby prevented from becoming socially insulated from the rest of American society.
By contrast, electoral incentives today pull candidates and parties into a narrow social network of extremely unrepresentative and socially isolated donors and activists.
Given the sheer cost of running a federal campaign in the current era, individuals running for office are required to tap their social networks for significant early capital to gain the confidence of party operatives.
It is, thus, not surprising that a vast majority of members of Congress are millionaires.
Even beyond the donor circle, the tendency of contemporary political parties has been to eschew broad mobilization.
For the average voter, computer-generated requests for donations have replaced the ward boss as the personal face of the party.
This is particularly concerning since those most likely to be targeted by such impersonal requests also happen to have relatively high incomes and levels of educational attainment. Political commentator Michael Lind only slightly overstates the case when he writes:
Politicians chosen by membership-based mass parties have been replaced by politicians selected by donors and sold . . . to voters. At the same time, the decline of neighborhood party machines turning out the vote has resulted in declining participation by lower income and less educated voters. The Americans who do vote are disproportionately affluent.
When millionaires constitute a supermajority of Congress and lawyers are overrepresented in Congress, the interests of lawyers, millionaires, and college-educated white men have more resonance than other interests and experiences.
The absence of individuals with more typical experiences of American life—individuals who have never had a white-collar professional job, women who have left their young, school-age children at home with siblings because they cannot afford daycare, or those who regularly navigate the criminal justice or welfare systems—in Congress (and presumably in the social networks of the partisans upon whom members of Congress rely for policy advice) makes it significantly less likely that Congress will prioritize policies addressing the experience of such citizens.
To make matters worse, entrenched socioeconomic segregation means politicians—even ones who gain from church attendance or NRA membership—are much more socially isolated from individuals from different walks of life than they were in the past.
Put plainly, if members of Congress and their associates were financially dependent on public education for their children, they might not have been quite as taken aback by the broad bipartisan outrage at Betsy DeVos’s nomination.
Equally important, the less government addresses those needs, the more likely those constituents will disengage from electoral politics, and the vicious cycle begins.
While few would wish to return to the eras in which political power ran through sex-segregated and racially exclusionary clubs—veterans’ groups, Masonic Lodges, or the Klan—the socioeconomic exclusivity of contemporary partisan networks has had democratic costs.
Social insularity of party elites along with the unrepresentativeness of both voters and party activists affects the types of policies and actions that are considered, even in the absence of corruption or undue influence.
Individuals’ experiences of the world shape how they process information, what issues they prioritize, and what issues fall off their radars. A behavioral economist might describe this in terms of the availability heuristic; an anthropologist might describe it in terms of culture and social practice. The bottom line, however, is the same: Social context shapes what one prioritizes (e.g., tax cuts or social security), finds reasonable (e.g., accepting extravagant gifts from donors or engaging in an illicit market to make ends meet), and perceives as being problematic (e.g., what constitutes sexual harassment or racism).
No amount of data or polling can compensate for the fact that polls are written by the very elites whose world experiences are increasingly insular.
The associational life of partisan elites inevitably affects responsiveness and accountability. The absence of consideration of this phenomenon by responsible party government theorists can probably be attributed to the fact that through the 1950s, elected officials and party leaders had robust ties to their constituents through membership associations based on socioeconomic status (if not race or gender).
Churches, veterans’ groups, and even the Ku Klux Klan in the South were extremely well integrated into the party network.
The optimal partisan network, it follows, is one with both socioeconomic and intergenerational breadth and interpersonal depth.
Such a political organization would be more capable of mobilizing voters of all ages through a broad cadre of party activists with ties to a representative electorate. It would be better able to disseminate political information during and between elections.
The vital link in developing strong parties is the “party faithful”—defined to include volunteers for campaigns, staff of state and local parties, and activists involved with groups such as Indivisible, the Tea Party, the National Right to Life, or the Sierra Club.
Such activists are much more likely to be the neighbors of ordinary people.
As a result, they are exceptionally well positioned to mobilize and inform others.
Even beyond the basic influence of personal ties on recruitment and information transmission, evidence indicates that ordinary citizens have devised their own ways to get “[political] information on the cheap”: They turn to “politically knowledgeable individuals” within their social networks—preferably, but not exclusively, those “who hold compatible political biases.”
The strategy works because people, it turns out, are relatively good judges of actual expertise, and political junkies have a knack for clearly communicating their political knowledge.
Unsurprisingly, individuals are more likely to be drawn into politics if their social networks include persons with political expertise.
Such a partisan network—one in which volunteers, rather than donors, take the lead—is significantly more likely to facilitate the two-way street of communication and to tie elected officials to the concerns and experiences of their electoral base.
In the first instance, the cadre of party activists, with extensive face-to-face interactions with local constituents, can provide feedback to headquarters about what they are hearing from constituents both in relation to the immediate election and for purposes of future governance.
Such intelligence can compensate for top-down efforts to collect information when it proves inaccurate.
Equally important, a candidate whose electoral strategy depends on a face-to-face ground game has to cultivate relationships with civic associations capable of undertaking such efforts.
Ties forged with the leaders of such groups during the campaign are likely to mean that their calls, not just the calls of big donors, will be put through should the candidate come to hold office.
Such candidates, especially for lower offices, are also more likely to spend time knocking on doors themselves, accompanied by volunteers, and thus to learn directly from their constituents.
Finally, and arguably most importantly, some number of the party faithful—those individuals who are more likely to be some ordinary person’s neighbor than any major party donor—will find themselves drawn further into politics, possibly even running for office.
Thus, a broader and more representative party may itself breed a different range of candidates.
In sum, a party with social breadth and interpersonal depth would go a long way to grounding elected officials in the experiences of their constituents through intermediaries, rather than depending on elections to produce responsiveness.
And the best evidence of this is the fact that the heyday of membership-based routes to political power was also the New Deal period during which federal policy was significantly more attentive to the needs of middle-class Americans.
2. Opportunities and Constraints in the Reshaping of Partisan Networks. — Success, unquestionably, depends on diversifying the party faithful. Compared to super donors, volunteers and activists are more likely to have social ties to ordinary voters,
but they are by no means socioeconomically representative of the electorate. Delegates to the Democratic National Convention, for instance, are not only more progressive than Democratic voters, but they are also significantly more likely to be members of the upper middle class, and increasingly so.
“In 2008, 70 percent of the delegates [to the Democratic National Convention] reported earning $75,000 or more per year, compared to 27 percent of Democratic voters at that time.”
Likewise, a survey of participants in mass demonstrations since January 2017 finds that the protestors have been somewhat whiter and significantly more educated than the average American.
Even the small donors—who are often touted as a critical antidote to big money—are older, whiter, wealthier, more educated, and more male compared to the electorate.
When activist networks remain themselves socioeconomically isolated, expanding the party faithful would simply reinforce the stratification of political participation.
Given that Americans increasingly live in socioeconomically segregated neighborhoods and social circles, diversification will not be without its challenges.
Affirmative strategies to compensate for our social landscape would need to be devised.
Similarly, reformers would have to consider how to sustain activism beyond individual campaigns by bolstering both formal local party organizations and informal ones, like Indivisible or the Tea Party.
On the positive side, however, there is good evidence that initial forays into politics breed further political engagement.
Even if one could expand the party faithful, some might remain skeptical that personalizing and diversifying the partisan network would facilitate the communication of the electorate’s worldview back to elected officials and the leadership of legislative caucuses. In this regard, the recent influence of the Koch network and the Tea Party activists with whom it connected is relevant.
Scholars of the Koch network are unequivocal that, beyond money, “the most pervasive and subtle form of leverage by the Koch network on the Republican Party” derived from “the flow of people back and forth between” Koch-funded organizations and the formal party.
Face-to-face social and political networking—from the institution of an annual seminar that brings together millionaires and billionaires, to the cultivation of a network of party professionals and activists sympathetic to their cause—has been the lynchpin for developing party support for their libertarian philosophy.
It is the absence of a similar social network that has rendered comparable expenditures on the Democratic side less effective.
To be sure, the Koch strategy testifies to the ways that partisan networks can influence national party platforms, but it does not itself demonstrate the communication of the worldview of ordinary Americans to party leaders.
The Kochs’ is a top-down political strategy in which grassroots activists are given few opportunities to shape its messaging.
That said, although there are few studies tracking the policy effects of activism within the Democratic Party since Howard Dean’s primary challenge, it is hard not to see effects of this activism reshaping both the party’s platform and the kinds of candidates it runs. McKenna and Han’s study of the Obama ground game inadvertently documents the trajectory of activists in Howard Dean’s failed primary campaign into both the Obama campaign and the national Democratic Party machine.
It is perhaps not an accident that federal policymaking under President Obama—whose campaign energized a stunning 2.2 million volunteers, many of whom reported experiencing “a resurgence . . . of deep political engagement”—was significantly more responsive to the needs of middle- and lower-class Americans than during preceding administrations, arguably even Bill Clinton’s.
Beyond the passage of the Affordable Care Act, Obama oversaw the reform of student lending and implemented a significant expansion of educational benefits to veterans.
One could also argue that the Democratic Party’s current crisis is the product of responsiveness to the ideological priorities of its high-socioeconomic-status party faithful, to the neglect of a less engaged, broader constituency.
Incidentally, it also must be acknowledged that party activists may have very little interest in facilitating responsiveness to the electorate. Certainly, the unelected operatives, whose power is exercised within the formal party, are likely to be wary of broad mobilization. Their power derives from their control over the nomination process, which in turn depends on low voter turnout in low-information primaries.
Ideological activists, meanwhile, will have their own reasons to resist undertakings that would increase responsiveness to constituents’ interests and preferences.
On the other hand, it would be foolish to ignore the unique opening provided by the 2016 election in which party leaders, on both sides, were blindsided by the dissatisfaction of the electorate.
Equally as important, some commentators have attributed the parties’ surprise to the increased isolation of party elites. New York Times columnist David Brooks, most prominently, has argued that those tracking the 2016 election were incapable of perceiving Donald Trump’s appeal in large part “because [they] were not socially intermingled with his supporters and did not listen carefully enough” to notice that for those who have “suffered lost jobs, lost wages, [and] lost dreams . . . [t]he American system is not working.”
Thus, we are at a moment when incumbents, despite generally having little interest in accountability, have heightened awareness of the costs to operating within a super-elite social network, insulated from the experiences of their core supporters.
In sum, there are significant opportunities to reshape partisan networks at this transitional moment in American democracy, even though any effort to make contemporary party networks more representative while strengthening their associational attributes will not be without its challenges. Renewed political engagement combined with heightened levels of concern for the state of our democratic institutions provide a window of opportunity and, as such, an appropriate nudge from the Supreme Court could go a long way toward putting us on a path to a more responsive and accountable political order.
D. Assessing the Likelihood of Success
The most important question, of course, is whether an associational focus would work. Given the various dysfunctions of American politics today, what reasons are there to believe that regrounding political elites in the broader electorate while extending representative and informed political participation would, in fact, improve democratic policy responsiveness? Even a sympathetic reader might ask how strengthening the associational life of political parties would make a difference given the incentives that push elected officials to cater to primary voters and wealthy donors in a world of uncompetitive elections. Moreover, assuming an associational focus could work, shouldn’t we be worried that peer-to-peer engagement will make polarization even worse? The party faithful are known to be ideologically extreme.
Shouldn’t we, therefore, worry that this approach will exacerbate polarization and further ease the spread of misinformation and damaging populist rhetoric?
These are all valid concerns. The relevant question, however, is: How do the potential obstacles to an associational-party path compare with the known ones under responsible party government? By that measure, the associational-party path is a clear winner. Given the failures of responsible party government, an associational approach presents the only viable way to induce responsible government. Before making that case, however, it is important to address these challenges on their own terms.
First, how might broadening electoral participation improve democratic responsiveness given that it does not appear to undercut the existing incentives, which uncompetitive elections create, to cater to the preferences of wealthy donors and an ideologically extreme base of the party? It is important, first and foremost, to acknowledge that the relationship between party competition and policy responsiveness is decidedly imperfect. Efforts to increase party competition—including efforts to end partisan gerrymandering—are certainly worthwhile.
Nevertheless, the fact remains that the evidence is decidedly mixed as to whether, let alone how much, party competition improves policy responsiveness.
That relationship is even more attenuated when the electorate that actually turns out on election days is increasingly polarized.
It is equally important to come to terms with the fact that uncompetitive elections are, for the moment, an entrenched feature of the American electoral system. Partisan gerrymanders explain only some of the absence of party competition currently evident.
In the main, the lack of party competition is a result of ideological geographic self-sorting rather than partisan gerrymandering.
Even if the Supreme Court puts an end to partisan gerrymandering, only a limited—albeit extremely important—set of swing districts would be affected.
Accordingly, while we must fight fading party competition, it is time to devise strategies to address policy responsiveness in the absence of party competition. The associational-party path’s emphasis on expanding the electorate seeks to do just that. By focusing on drawing in more voters and creating a more representative electorate, it points to opportunities to radically shift electoral expectations.
In particular, it creates the opportunity to use strong associational parties to significantly increase turnout during party primaries, thereby undercutting the current hold that primary voters have on the system.
Turning now to the second concern: Wouldn’t a peer-to-peer engagement strategy that depends on the party faithful inadvertently exacerbate legislative gridlock by increasing polarization? In this regard, it is important to state clearly the ways in which this project is driven by different concerns than party reforms primarily targeted at addressing polarization. This project is driven by the evidence that American democracy is suffering from a crisis of representation. If the broader citizenry is genuinely polarized—a question that remains decidedly open—legislative polarization would be representative democracy at work.
Should the result of activating eligible voters be the rise of even more polarized legislatures, we should take heart that our elected bodies are functioning as representative bodies (if not as governing bodies).
The problem today is that it is not at all clear that the stark ideological difference between the political parties is a product of an increasingly polarized electorate at large.
Pew’s most recent study, for example, finds that “many Americans continue to hold a mix of liberal and conservative views across different issue areas” even as partisan polarization is rising.
It is also not clear that ideological polarization in the electorate corresponds with ideological polarization in the legislature: For instance, in 2016, Pew found “just 16% of Republicans and 20% of Democrats say they ‘almost always’ agree with their party’s policy stances.”
As another example, although Republican voters expressed overall strong support for the 2017 tax cuts, their priorities were quite different from those of party leaders.
That said, it certainly would be concerning if the associational-party path were likely to foment further polarization. On this front, the trepidation appears to be driven by a fear that peer-to-peer strategies dependent on the party faithful (known to be more ideologically extreme) would polarize those with whom they come into contact.
In fact, however, there is reason to have confidence that an associational-party path would mitigate rather than exacerbate polarization. Much of the polarization research focuses on the political effects of partisan media and its dissemination online.
But there is little reason to expect the dynamics of social media to permeate old-fashioned face-to-face retail politics. People act differently in person than online.
For a variety of psychological reasons (especially anonymity), it appears to be much easier to engage in asocial behaviors online than in person—to be more confrontational, to express more extreme views, and to lie or misrepresent oneself.
By contrast, there is a strong incentive when interacting in person to be prosocial—to cooperate and avoid conflict, sometimes to a fault—especially with individuals with whom one has a prior relationship.
Certainly, the social-capital literature suggests that knitting together the polity and encouraging civic engagement is less likely to draw out the dark and dysfunctional elements of our politics.
To the degree that an associational-party path envisions peer-to-peer mobilization online, it is primarily focused on situations where the connection between those individuals also has a face-to-face manifestation—such as the efforts of the Obama campaign. Particularly in that context, it seems just as plausible that the effect might run the other way: Contact with less ideologically extreme neighbors and associates might create a reality check for the most ideologically extreme because personal connection between peers might mitigate the inclination to simply reinforce one’s beliefs.
Ultimately, however, this is an institutional-design project the primary goal of which is to ensure the openness of the channels of democratic politics, including parties, rather than a particular substantive outcome: If polarization is the outcome of broadening the electorate and enhancing its access to information, then so be it. The same is true if it turns out that the nation truly is racist, misogynist, prone to believe falsehoods, and enamored of hypercapitalism.
At the moment, however, institutional features of contemporary democracy are driving those political trends.
The bottom line is that, notwithstanding the reasonableness of these various concerns, an associational-party approach is the only viable reform agenda. Responsible party government is not working.
The political parties have not been sufficiently responsive to the electorate, and voters appear increasingly dissatisfied with the brands that are on offer.
Nor is the most salient current party-reform agenda, which seeks to strengthen the power of party leaders by loosening or abolishing contribution limits to political parties—either as a matter of statutory or (far worse) constitutional law—significantly more promising.
Proponents of strengthening party leaders through deregulation argue that raising or removing contribution limits to the official political party will shore up party elites by leveling the playing field with so-called outside groups, such as Super PACs. This will, in turn, undercut the power of the more ideologically extreme elements of the partisan network, reduce polarization, and end legislative gridlock.
Untamed deregulatory efforts, however, could push the formal political parties further to the ideological extremes just as easily as they could bring forth moderate parties inclined to legislative compromise.
Why should we believe the newly empowered party elites will be the moderates of older days? Moderation depends on party competition. Conferring total control over the party brand to party leadership in the belief that electoral competition will force officials to tack back to the median voter’s preferences certainly will not work absent electoral competition. But it may not work even where competition exists. Party competition, as noted previously, is a decidedly imperfect mechanism for producing policy responsiveness.
Even putting to one side problems associated with party competition and its absence, it is not at all clear that leveling the playing field will redirect the flow back to the formal party and its leaders: Donors make campaign contributions to different entities depending on their interests.
Ideological donors may well continue to donate to ideological groups; moreover, even if they were to decide to fund the political parties, their demands for ideologically pure candidates are unlikely to disappear.
To make matters worse, unbridled deregulation of party funding is likely to strengthen the hands of wealthy donors.
In 2014, following McCutcheon, Congress substantially lifted contribution limits for three main areas of party expenditures: presidential nominating conventions, expenses associated with the construction and renovation of party headquarters, and litigation expenses associated with recounts and other election-related legal proceedings.
It is difficult to see how creating these kinds of party slush funds breeds accountability to the electorate.
As Lee Drutman argues, deregulating to “allow party insiders to control larger pots of money” may well improve party discipline, but it is not at all clear why it would make them more attentive to the interests of constituents rather than the (largely out-of-precinct) donors from whom the money arrives.
By comparison, the associational-party path is theoretically optimal as a guide to structuring First Amendment doctrine and as a measure for regulatory reforms—even as it does not guarantee a cure to all our democratic ills. A party-reform agenda tailored to strengthening the associational life of political parties, including by redirecting the flow of money, is significantly less prone to these problems than one singularly focused on strengthening the political power of party leaders.
The central premise underlying an associational-party path is that curtailing the political influence of donors and other unrepresentative policy demanders requires creating a counterpoint to that influence by empowering and mobilizing millions of ordinary Americans through civic and political organizations.
Any deregulation of party financing must, therefore, be narrowly tailored to the goal of encouraging peer-to-peer party-building and voter-mobilization strategies that significantly rely on face-to-face interactions.
From an associational perspective, in other words, the pertinent question for any deregulatory proposal ought to be where within the party the money is likely to flow. This is because responsive governance is most likely to arise out of a party capable of engaging a representative electorate in a peer-to-peer fashion through personal appeals by party activists and individuals in community-based civic associations. The impact of deregulation will be vastly different if it flows to political parties engaged in orchestrating volunteers and peer-to-peer mobilization rather than buying TV advertisements that seek to influence likely voters or paying for lavish party headquarters.
Even directing more money to state and local parties will not necessarily facilitate the development of “social capital by building connections, trust, and cooperation across diverse individuals and groups.”
The associational-party path is preferable to other proposals for one final reason: Unlike responsible party government, it eschews the assumption that party reform alone can bear the entire weight of solving our democratic dysfunctions. Entrenched problems demand multifaceted interventions aimed at incremental change. Party reform can only ever be a partial solution. To the degree responsible party government suggested otherwise, it was obviously mistaken.
Reforms to address the associational qualities of the traditional party are most likely to succeed as part of a package of reforms aimed to empower ordinary Americans in politics by responding to broader transformations in civil society.
While the traditional party is arguably the least well situated to translate peer-to-peer strategies into a two-way street of communication given the cyclical nature of elections, the payoff of pursuing democratic accountability by promoting both electoral associations and civic associations derives from a central and recurring finding from the empirical research: Political experiences tend to produce additional and deeper civic and political engagement.
Simply put, efforts to broaden electoral participation through peer-to-peer engagement, particularly when face-to-face, are likely to lead individuals into additional forms of political participation and organizational membership, thereby reinforcing efforts to stimulate a more representative and membership-based array of civic associations—the kind most capable of breeding informed political participation.
Put differently, as the sociological definition of the party highlights, the formal party—that is, the traditional focus of party reform—is merely one type of node within the partisan network.
In addition to candidates and formal party entities (governance and election-related entities), there are PACs of various sorts (primarily election-related entities) as well as—and this is what the traditional account fails to notice—certain civic associations (policy demanders that engage in electoral politics when it serves their interests). Efforts to increase responsive and accountable governance must seek improvements in all three arenas.
To conclude, given the failures of responsible party government, the associational-party path, on balance, offers the most viable route to inducing political parties and their elected officials to govern responsibly and responsively. Having outlined the assumptions and contours of an associational-party path, this Essay will next consider the implications for First Amendment doctrine.
III. Reconceiving First Amendment Burdens
While it is obviously possible to reshape the associational texture of partisan networks by shifting the regulatory framework to empower different legal entities within the partisan network, this Essay focuses on constitutional doctrine.
Many regulatory debates are best left to the democratic process, but the regulation of the democratic process is not one of them.
The incentives of elected officials are too compromised to devise regulatory regimes that will induce political accountability.
It is, therefore, incumbent on First Amendment doctrine to allocate rights in ways that encourage democratic accountability and political responsiveness.
Toward this end, this Part identifies opportunities within existing First Amendment doctrine to strategically underwrite the strength of those segments of the partisan network that enhance opportunities for social contact between party elites and the broader electorate. The doctrinal proposal, set forth below, essentially entails two steps. The first would extend the Anderson–Burdick framework to all manner of political party regulations, including those that burden the First Amendment rights of the two major political parties. The second step would recalibrate the burdens analysis to focus on impediments to the party’s ability to mobilize broad and representative political participation—as opposed to those placed on access to the polls or the ballot, as in the typical case.
A. Assessing Regulatory Burdens Within the Anderson–Burdick Framework
There is no question that the First Amendment rights of formal political parties can shape the associational attributes of partisan networks. When a political party is forced to hold an open primary, for example, its partisan network is diversified. When it is prevented from holding open primaries, the power of party activists is heightened. An associational path to responsive party government suggests that First Amendment rights should be allocated in ways that prevent regulation from undermining either the socioeconomic and intergenerational breadth or the interpersonal depth of partisan networks.
The principal mistake of current doctrine is its preoccupation with protecting political parties, as speakers, from burdens placed on their brand.
Compounding this error is the fact that the members of the Citizens United majority appear to assume that any regulatory burden placed on a political party as a speaker demands strict scrutiny.
From an associational-party perspective, not every restriction on a political party’s freedom of speech and association “is of constitutional dimension”—a point the Court has itself acknowledged at times.
The primary concern is burdens placed on the party’s ability to foster deep and wide social ties to a representative electorate. Burdens on the clarity of a party’s message, by comparison, are much less important.
Extending the Anderson–Burdick framework to the two major political parties would provide a relatively simple way to incorporate an associational-party perspective into existing First Amendment doctrine.
Developed in the context of restrictions on access to the ballot, the Anderson–Burdick framework is particularly well suited to the task because it explicitly foregrounds analysis of the burdens, reserving strict scrutiny for cases in which the burdens are severe.
An associational-party perspective provides a new scale with which to weigh the burdens on a party’s First Amendment rights in which the focus would turn to burdens placed on parties as associations and their capacity to foster deep and wide social ties to a representative electorate. A few lower courts have already taken this step, attending, in the context of challenges brought by minor parties, to the nature of the burdens placed on the party’s ability to cultivate and maintain ties to the electorate.
In one case, plaintiffs challenged a state law that required election officials to scrub voter rolls of affiliations with third parties that no longer met the state’s legal definition of a political party.
In applying the Anderson–Burdick test, the court explained that the burden was severe, insofar as it undermined the party’s ability to identify and mobilize potential voters or engage in “party building activities.”
Currently, while the Supreme Court consistently applies the Anderson–Burdick framework when adjudicating both challenges brought by minor parties and intraparty feuds involving the right to participate,
its practice has been inconsistent in cases involving the direct regulation of the two major political parties. When First Amendment challenges have been brought by the leaders of a major political party, the tendency has been to simply apply strict scrutiny.
The only outlier was the recent case of Washington State Grange v. Washington State Republican Party.
The Anderson–Burdick framework has never been mentioned in cases challenging restrictions on the financing of political parties, even by Justices reluctant to submit to Buckley v. Valeo’s distinction between contributions and expenditures.
Moreover, even in those minor-party cases where it has applied the Anderson–Burdick test, the Court has sidelined separate analyses of the impact of various ballot-access rules on those parties’ associational life.
The extension of the Anderson–Burdick framework to assess the First Amendment implications of all facets of political party regulation—by establishing a jurisprudence that is sensitive to regulatory burdens that further undermine the existing associational life of political parties—would enable the Court to adjudicate the First Amendment burdens placed on political parties in ways that will encourage broader democratic goals. It would also have the added benefit of affording political parties robust First Amendment protection without constitutionalizing an unbounded right to accept unlimited contributions.
B. Illustrating the New Approach in the Context of the Soft-Money Ban
To illustrate the implications of this doctrinal and analytic shift, consider the controversy over the constitutionality of the 2002 amendments to the Federal Election Campaign Act (FECA), which closed the so-called soft-money loophole. In the 1990s, the national party committees regularly exploited the fact that federal law, at the time, exempted the financing of state and local elections as well as generic party-building activities from its regulatory purview.
Through this loophole, national party leaders solicited unlimited contributions (soft money), ostensibly earmarked for state or local elections, from big donors with promises of access to federal candidates and elected officials.
Those funds were then funneled to activities that, while formally related to state and local elections, directly benefited the federal candidates who appeared on the same ballot—for example, sham issue advertisements (the bulk of the spending), voter-registration drives, and get-out-the-vote efforts.
Not surprisingly, the use of the so-called soft-money loophole to circumvent FECA’s contribution limits eventually raised concerns about the sort of solicitude donors were receiving from federal candidates and political parties. In response, Congress enacted the Bipartisan Campaign Reform Act of 2002 (BCRA), which embraced a multipronged strategy for closing the soft-money loophole.
First, BCRA establishes caps on contributions from individuals to a federal political party committee.
Second, it prohibits both federal political party committees from soliciting funds above their base contribution limits and state, district, or local parties from using funds solicited outside BCRA’s new contribution limits for any “Federal election activity.”
Finally, it adopts an extremely broad statutory definition of “Federal election activities.”
Whatever its merits as an effort to contain the influence of big donors, BCRA, unquestionably, has made it much more difficult for political parties to engage in joint party building and a variety of face-to-face mobilization efforts.
Taken together, its provisions set up a regulatory regime in which all activities that fall within the statutory definition of “Federal election activity” must be funded with hard money (that is, those funds raised within federal base limits). After BCRA, not only issue ads (including sham ones)
but also all voter identification, get-out-the-vote, and generic campaign activity conducted in connection with an election in which a candidate for federal office appears on the ballot, as well as voter-registration drives undertaken within 120 days of a federal election, must be paid for with hard money insofar as these practices constitute “Federal election activity.”
Party officials who spend “more than 25 percent of [their] compensated time” on “activities in connection with a Federal election,” similarly, must be paid with hard money.
Congress, to be fair, tried to offset these burdens by establishing a limited opportunity for intraparty coordination through Levin funds.
Levin funds permit national party committees and state and local party committees to spend jointly on voter-registration activity, voter identification, and get-out-the-vote drives, so long as, inter alia, no mention is made of a federal candidate.
Unfortunately, Levin funds are subject to complex and convoluted rules that make them virtually unusable.
As a consequence, they have not provided much relief.
Despite these burdens, BCRA’s soft-money ban was upheld in McConnell v. FEC.
The McConnell Court chose to analyze the framework as a contribution limit, thereby triggering an ill-defined level of intermediate scrutiny under Buckley v. Valeo.
The dissenters, however, were not persuaded.
Justice Kennedy, in particular, advocated for the application of strict scrutiny on the grounds that the soft-money ban was neither a contribution nor an expenditure limit, but both at once and, as such, “fundamentally alter[ed], and thereby burden[ed], protected speech and association throughout our society.”
Given the absence of a compelling state interest, he maintained the provisions were unconstitutional.
While the contribution–expenditure distinction is a conceptual quagmire, Justice Kennedy’s alternative—strict scrutiny for any party regulation arguably involving speech—is no better. The former framework assumes that contribution limits are virtually never constitutionally problematic in the name of a pragmatic compromise. The latter amounts to the rote application of strict scrutiny, thereby granting political parties an effectively unlimited First Amendment right to accept campaign contributions.
Neither approach attempts to consider the underlying First Amendment interests before assessing whether the campaign finance burden is of constitutional dimension.
Both completely neglect the ends to which First Amendment rights ought to be granted.
The Anderson–Burdick framework, by contrast, is already sensitive to determining which burdens placed on political parties are of constitutional dimension.
The test explicitly foregrounds analysis of these burdens, reserving strict scrutiny for cases in which they are severe, in recognition of the fact that the legitimacy of elections frequently depends on their regulation. Extending the framework—from the current doctrine, in which it applies to cases involving burdens on the right to participate and those involving minor parties, to cases involving the two major political parties—provides a unique opportunity to develop a theoretically sound doctrine capable of allocating First Amendment rights to political parties in ways that facilitate the goals of democratic accountability and responsiveness.
To further the associational path to party responsiveness, however, it is necessary to establish a new measure for how to weigh those burdens.
The critical questions would become: first, whether the regulation decreases a party’s ability to mobilize political participation and facilitate information transmission through peer-to-peer appeals by party activists; and second, whether it otherwise undermines the party’s organizational stability and coalition-building capacity. The former burdens are worrisome not only because personalized solicitations are particularly effective means for facilitating electoral participation but also because genuine points of contact with the electorate are more likely to ground elected officials in the experiences of their constituents.
The latter burdens are worrisome to the degree that the need to rebuild organizational capacity each cycle detracts from the ability to sustain political engagement over the long term. The extension would have the added payoff of bringing coherence to the doctrine.
In the context of BCRA’s soft-money ban, shifting to the Anderson–Burdick test demands a separate analysis for each of the three types of party expenditures implicated: (1) voter-identification, -registration, and get-out-the-vote initiatives; (2) state and local party staff; and (3) issue advocacy. Ultimately, the recalibrated Anderson–Burdick test points to a middle-ground position, in which some, but not all, aspects of the soft-money ban would be held unconstitutional. When the question of whether a burden should be deemed severe turns on how it impacts the party’s ability to foster broad social networks with interpersonal depth, it is the first two limitations on expenditures that pose the most severe burdens. This section addresses each provision in turn.
The congressional choice to define “Federal election activity” to include voter-registration, -identification, and -mobilization drives undertaken within 120 days of a federal election, thereby requiring that such activities be undertaken with hard money, burdens core First Amendment interests. Face-to-face appeals are incredibly effective for fostering short- and long-term political participation, as we have seen, but are also extremely costly.
When party resources are limited, it is reasonable to expect parties to choose cheaper forms of mobilization, such as impersonal mass communication. In fact, campaigns frequently devote far fewer resources to such efforts, despite their broader democratic returns.
In 2008, for example, nearly 60% of the presidential campaign budgets on both sides were spent on advertising.
To the degree that it implicates the peer-to-peer efforts at political engagement that are most likely to be undertaken face-to-face, while undermining incentives for candidates to coordinate with state and local parties in that effort, BCRA’s requirement that mobilization be done with hard money warrants strict scrutiny under the revised Anderson–Burdick test. The central problem is that this aspect of BCRA limits the money available for the most promising path to deepening and broadening political participation and responsive party government. The very requirement that such activities may only be undertaken with hard money and Levin funds, where applicable, in the ordinary case will limit the amount of mobilization undertaken.
Certainly, campaigns that have specific strategic reasons to devote resources to their ground game will find ways to fund it using a combination of hard and soft money. The Obama campaigns, for instance, orchestrated a significant ground game in both 2008 and 2012 while operating under BCRA.
With the benefits of Obama’s incumbency . . . I had expected that the 2012 campaign would be largely organized around the state political parties in conjunction with state and local election efforts. Notably, and with few exceptions, that was not the case. There were certainly more points of contact with state officials that helped smooth the voting process on Election Day and more time to litigate contested issues before Election Day. But in terms of organizational structure, the campaign was run through the presidential effort and not through the state parties.
Issacharoff, Outsourcing Politics, supra note 4, at 847–48. Contribution caps to parties also limit the ability of political parties to coordinate with civic organizations in the party network in such endeavors without running afoul of contribution limits. See Bauer, The Right to “Do Politics,” supra note 30, at 77–79.
The effects of BCRA’s constraints on the choices in the average campaign, in which resources are more limited and the payoff of a ground game less clear, however, are likely to be significant.
The McConnell Court, it is true, flatly rejected the suggestion that contribution caps limited the resources available to parties, pointing out the ways in which they merely incentivize parties to reach out to more individuals to achieve their fundraising goals. As the Court put it, “[t]he ‘overall effect’ of dollar limits on contributions is ‘merely to require candidates and political committees to raise funds from a greater number of persons.’”
On this view, contribution limits are not a burden on the associational life of parties; instead, they promote it by incentivizing parties to expand their donor base.
There are several problems with the McConnell Court’s analysis. First, contribution limits may incentivize reaching out to more donors, but they do not incentivize spending on face-to-face mobilization efforts, as opposed to impersonal, media advertising, for example. Second, monetary contributions are a very thin sort of association. This is especially true of donations generated online or through mass mailings insofar as they provide no opportunity to facilitate a two-way street of communication.
Third, and most damningly, it is unquestionably the case that Congress could have adopted far less restrictive alternatives that would have both contained the soft-money problem and maintained, perhaps even incentivized, the growth of the party faithful and richer forms of association. For one, BCRA could have exempted money raised to fund individualized, face-to-face forms of campaigning from its definition of federal election activity. Ironically, an early FEC rule turned on this distinction. Unfortunately, rather than exempting personalized voter-registration and get-out-the-vote activities from hard-money limits, the FEC excluded generic letters and prerecorded telephone calls from the statutory definition and thus the hard money restrictions.
In other words, it redirected the flow of soft money to impersonal forms of voter engagement utterly incapable of facilitating a two-way street of communication.
Another less burdensome approach would have replaced the cumbersome Levin-fund amendment with an exemption allowing state and local political parties to freely coordinate with existing civic associations, including churches and unions, in any face-to-face recruitment efforts.
It is well known that local parties with ties to labor unions or community-based associations tend to have substantial points of intersection with the electorate—knocking on doors, hosting events with elected officials, and boosting turnout.
Either option would have been not only less burdensome but also more promising from an associational-party perspective. Both would have nudged the political parties to spend in ways more likely to mobilize a broader electorate (possibly even a more representative one) through the party faithful (including volunteers and state and local parties), thereby creating a variety of opportunities for opening up the two-way street of communication discussed above. Such targeted deregulation is far more promising than approaches that result in unbridled, unlimited contributions—or that raise contribution limits for funding party conventions, headquarters, and litigation. To the degree that any monetary contribution raises some risk of corruption or its appearance (and, greater still, a risk of preferential treatment), surely it would be better to have the contributed money go toward activities that are most likely to produce a counterweight to those interests, such as an engaged electorate?
To be sure, those who have challenged the constitutionality of the soft-money ban have not focused on these associational burdens. In the most recent challenge, brought by the Republican Party of Louisiana, there was no mention of a desire for expanded funds with which to engage in peer-to-peer mobilization efforts in order to expand its electoral base.
Instead, the demand for unregulated contributions, it argued, would cover costs associated with its website, emails, and mass mailings.
In this regard, its complaint is consistent with the views of state party officials surveyed on the effects of federal campaign finance law, which made little mention of burdens on the sorts of peer-to-peer strategies that increase social capital.
An associational-party perspective similarly offers a new measure for assessing the First Amendment burdens placed on political parties by BCRA’s requirement that the “services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual’s compensated time during that month on activities in connection with a Federal election” be undertaken with hard money.
To the degree this requirement undermines the organizational capacity to build a partisan network with sustained ties to the electorate, it poses a severe constitutional burden. It is well established that a significant weakness of the contemporary American party system is the seasonal quality of local and state party associations—measured in terms of, inter alia, the number of full-time party staff between election seasons.
The infirmity of state and local parties is critical because they serve as the national parties’ primary link to the electorate. As Justice Scalia astutely noted in his dissent from the Court’s decision to strike down party patronage, a traditional instrument of party building and discipline, the need for low-level party workers is not “obsolete”:
[Mass media has] supplemented but not supplanted personal contacts. Certainly they have not made personal contacts unnecessary in campaigns for the lower level offices that are the foundations of party strength, nor have they replaced the myriad of functions performed by party regulars not directly related to campaigning.
Once again, some might object that the requirement that state and local party workers who spend more than 25% of their time campaigning for federal elections be paid out of hard money has positive associational effects by creating an incentive to recruit volunteers. Surely, a volunteer-based political party is likely to have broader connections to the electorate than a professional party. Moreover, a volunteer-based party will have broader democratic repercussions insofar as initial forays into politics, such as volunteering to canvass a neighborhood for a campaign, are known to lead to even more substantial political activity.
Regulations that incentivize the use of volunteers unquestionably have distinct associational benefits for all the previously stated reasons. Encouraging volunteerism is critical: Initial forays into electioneering are likely to breed or sustain activism beyond individual campaigns and thus feed the desired two-way street of communication, which depends on active and sustained membership within the party network.
That said, regulations that incentivize recruiting volunteers while undercutting the nodes within the formal party that are most capable of orchestrating that volunteerism impose significant First Amendment burdens. It is unquestionably difficult to organize volunteers without paid staff; moreover, it does not serve any larger democratic goal to insist that candidates reinvent a participatory network each cycle.
Finally, from an associational-party perspective, BCRA’s requirement that issue ads be undertaken with hard money no longer seems constitutionally suspect. When the path to responsible governance does not lie in the clarity of the message but in the breadth and depth of the network, the inclusion of issue ads within BRCA’s regulatory purview is a much less significant First Amendment burden. The party’s freedom of speech is adequately preserved by its ability to use hard money to speak independently.
By contrast, when the route to good governance is understood to run through the party brand, it is the burdens on the party’s ability to speak that are most troubling. It is BCRA’s provision that issue ads must be purchased with hard money that raises the most alarm insofar as it undermines the party’s capacity to disseminate its brand.
It should now be clear how the doctrinal proposal being offered in this Essay is significantly different from the current state of the party jurisprudence. Simply put, the proposal being made is that the Anderson–Burdick framework be extended to all cases involving challenges to regulatory burdens placed on the major political parties, and that courts should allocate First Amendment rights in ways that prevent regulation from undermining the socioeconomic and intergenerational breadth or the interpersonal depth of all partisan networks. The current doctrinal preoccupation with shoring up party elites and their ability to define and control their distinct political brand, in other words, would be replaced by a focus on how challenged regulations might impact a party’s capacity to mobilize broad and representative political participation or to facilitate a two-way street of information transmission through party activists.
C. From Here to There: Assessing Probabilities of Doctrinal Change
One remaining question is whether any of this is possible. Convincing the Court to bring consistency to its doctrine is an easy sell; persuading it to abandon the theoretical underpinnings of its doctrine, less so. Still, there may be more opportunity than usual to do so. The associational-party path to responsive governance fits more comfortably within the First Amendment tradition than the theoretical alternatives the Supreme Court has rejected in the past.
For one, it speaks in the traditional register of rights. For another, it is premised on a commitment shared by both wings of the current Supreme Court that citizen participation breeds democratic responsiveness and accountability.
The centrality of political participation to our republican form of government is a leitmotif in the Court’s decisions relating to parties and elections. In California Democratic Party v. Jones, Justice Kennedy asserted that “[e]ncouraging citizens to vote is a legitimate, indeed essential, state objective; for the constitutional order must be preserved by a strong, participatory democratic process.”
More recently, Chief Justice Roberts explained:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign.
Nor is the motif a new one. In FEC v. Massachusetts Citizens for Life, Inc., a case involving a challenge to rules related to corporate election spending, the Court’s decision to strike down certain federal restrictions on corporate political spending was driven, in part, by a concern that complying with the challenged regulations might lead some civic groups to “decide that the contemplated political activity was simply not worth it.”
Equally relevant, the Court routinely assumes—perhaps a little too naively—that democratic participation leads to political responsiveness. Justice Kennedy, in particular, is prone to emphasize the need for First Amendment protections at the nexus between political participation and legislative responsiveness.
In fact, this nexus appears to have motivated his decision to write separately in Nevada Commission for Ethics v. Carrigan, a case involving a challenge to a statute that mandated legislative recusals on matters in which a reasonable person would think the legislator had a material interest through a personal connection.
Justice Kennedy’s reservations about the premise underlying Nevada’s statute are revealing:
As a general matter, citizens voice their support and lend their aid because they wish to confer the powers of public office on those whose positions correspond with their own. That dynamic, moreover, links the principles of participation and representation at the heart of our democratic government. Just as candidates announce positions in exchange for citizens’ votes, so too citizens offer endorsements, advertise their views, and assist political campaigns based upon bonds of common purpose. These are the mechanisms that sustain representative democracy.
For all these reasons, the associational-party path to responsive governance fits comfortably within the First Amendment tradition. The value of common ground should not be underestimated when it comes to proposals for doctrinal change, especially when some members of the Court may already be wary of the path it has forged.
To conclude, the proposed extension of the Anderson–Burdick framework to cases involving the First Amendment rights of the major political parties has several virtues. First, it provides an eminently plausible way of working within the contours of existing First Amendment doctrine to underwrite those segments of the partisan network that already enhance opportunities for social contact between party elites and the broader electorate and their associated virtues. Second, it offers to bring coherence to the doctrine, and it resonates with existing commitments of a doctrine that the Court itself has devised to serve broader democratic goals of responsiveness and accountability. In that regard, it provides a relatively easy point of entry for doctrinal reform. Finally, the extension demonstrates what a commitment to incremental change looks like as well as how the theory could inform campaign finance reform should that topic return to the political agenda.
The Supreme Court has long granted political parties constitutional protection from government intrusion in recognition of their central role in promoting democratic accountability. Unfortunately, it has done so on the basis of a set of theoretical assumptions about how to induce responsive and responsible governance that do not hold true in contemporary American politics. Worse still, this attachment to responsible party government has crowded out other plausible paths to self-governance.
This Essay has argued that the Court’s recent denials of certiorari in important party cases have granted a much-needed reprieve—an opportunity to pause to consider an alternative path to responsive and responsible governance. In doing so, it has explained the basis for believing that an alternative path exists once we focus on political parties as civic associations rather than speakers. More specifically, it has argued that reinforcing the chains of democratic accountability lies in the promotion of integrated, cross-class partisan networks.
Achieving responsive and accountable governance by strengthening the breadth and depth of partisan networks will be difficult. The changes in the structure of American society since the 1950s are here to stay. The route to political power no longer runs through veterans’ groups, the Masonic Lodges, or the Klan, and few want the key to political power to return to sex-segregated and racially exclusionary men’s clubs. Socioeconomic segregation in American life is also fairly entrenched.
Nevertheless, given the known failures of responsible party government, an associational approach presents the only viable way to induce responsive and accountable governance today. It is theoretically optimal, both as a guide to structuring First Amendment doctrine and as a measure for future regulatory reforms—even as it does not guarantee a cure to all our democratic ills. And it is, therefore, essential to begin to identify those opportunities to reshape existing partisan networks given the world in which we live.
Embracing the associational-party framework is a necessary component of any multidimensional approach to addressing the democratic dysfunctions that pervade U.S. politics. Democracy is an aspiration that requires ongoing work. The goal at any given moment is to attain more, rather than fewer, of these democratic goods. Party reform will inevitably be only a partial solution. The parties’ incentives to accurately inform ordinary citizens are limited, and their interests in being held accountable are even weaker. If political parties were the only piece in the self-governance puzzle, the project would likely be doomed to fail. Thankfully, there are other institutions—most importantly, civic associations and the press. Each has mixed incentives, but each can also compensate for the limits of the others, and therein lies a basis for hope. To the degree the sorts of party reforms advocated for here are married to efforts to revitalize civic associations for ordinary Americans, there is significant room for optimism.