The Hydraulics and Politics of Party Regulation

Author:Michael S. Kang
Position:Assistant Professor, Emory University School of Law

Swept up in the growing "constitutionalization" of the law of democracy, political parties today are centerpieces of American law and politics. However, even sophisticated courts and legal commentators adhere to a formalistic view of political parties as discrete, legally defined entities. The Article topples this conventional view of political parties. Drawing from recent research in political... (see full summary)


Michael S. Kang: Assistant Professor, Emory University School of Law. Many thanks for helpful comments from Bobby Ahdieh, Bill Buzbee, Barry Burden, Julie Cho, Adam Cox, Paul Frymer, Beth Garrett, Heather Gerken, Dan Ho, Eli Kay-Oliphant, Doug Lichtman, Greg Magarian, Bill Marshall, John Nagle, Rick Pildes, Eric Talley, Dennis Thompson, and Fred Tung. Thanks also to Shirley Brener for her outstanding research assistance.

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I Introduction

Never before have political parties received such sustained attention from courts, commentators, and legislators. In recent years, the U.S. Supreme Court has decided important cases dictating the proper role of political parties in all facets of American politics.1 This development has forced the legal commentary, in response, to consider the proper legal characterization of political parties in the wake of the various decisions covering the spectrum of political activity.2 The growing "constitutionalization"3 of the law of democracy promises to keep the status of political parties squarely before the courts in the years to come.

This Article challenges a fundamental assumption underlying judicial decisions addressing political parties. Courts casually and uncritically view parties as legal creatures that possess a legal identity, persona, and interests in the same manner as an individual or a corporation. Courts, as a result, address political parties as discrete entities comprising the legally identifiable actors within the official party apparatus, such as officeholders, party committees, and official party organizations.

Drawing upon political science, I argue that this fundamental assumption by courts and legal commentators is wrong. The Article argues that, for purposes of understanding how political parties interact with the law, parties are best understood in political terms, in "supralegal" terms transcending their legal structure and identity. The term "party" is a colloquial shorthand to describe the bundle of informal relationships that a much broader political coalition can be said to encompass. The political party is best understood as 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 general agenda.

I thus propose a new conception of the political party, moving away from the formalistic notion of parties as legally defined entities, to a more robust, more realistic supralegal model of parties. All types of private actors, Page 134 who may or may not possess legally cognizable connections to the official party apparatus, are important members of the party coalition, including unions, interest groups, think tanks, and other politically active groups. These political leaders organize and operate through the official party structure only when it serves their overlapping interests.

This new supralegal framework for understanding political parties reveals that party regulation often conceives of parties in terms that are either too narrow or too broad. First, an unduly narrow focus on the political party as consisting of its legally identifiable actors obscures the "hydraulics"4 of party regulation. Party regulation, designed to influence the practice of politics more broadly, restricts only a fraction of the resources, opportunities, and activity at the disposal of the party. When law prevents leaders from pursuing their interests through the legal apparatus of the political party, they often are able to exploit their party's supralegal character and divert their strategic activity into less public, less regulated channels. Like water, the party seeks a hydraulic return to its own level of influence, seeking gaps and openings in the regulatory edifice, whether they exist in the public or private domain. Party regulation may influence the way that supralegal parties operate, shifting them from first-best to second-best strategies, but it does so at a social cost of driving important party activity into less public and less transparent venues. It also does so inefficiently, through behavioral mandates directed specifically at political parties with ample means for avoidance.

Second, there is a significant risk of conceptualizing political parties too broadly. Political parties are diverse aggregations of political actors that variously work together and oppose one another across and inside party lines. They are defined by a basic and defining intraparty tension: individual leaders come together for common goals but at the same time compete vigorously with one another for relative influence within the party coalition. When party regulation succeeds in achieving reform ends, as it does at times, it is too often the result of the "politics of party regulation," essentially political disputes among party rivals.5 Party regulation, when enacted, influences the means through which the party works, and by doing so shifts the balance of power within and among party leaderships. In other words, party regulation, and subsequent litigation over it, regularly stems from efforts by party actors to defeat their political rivals. Party reforms are more likely to achieve these narrow political objectives than larger reform goals. Page 135

This supralegal conception of political parties provides a new lens for viewing and making sense of judicial decisions dealing with challenges to party regulation. It counsels courts to be presumptively skeptical about promised reform benefits as they navigate the hydraulics and politics of party regulation. But more importantly, a proper understanding of parties characterizes party cases as exercises in political management of the myriad relationships that parties comprise. A supralegal lens guides courts to understand party cases not in terms of the usual framework of legal issues presented by a particular regulation and the party's associational rights in a particular case, but in terms of the larger ongoing narrative of political conflict in which different sets of party actors successively use party regulation and ensuing court challenges to vanquish rivals by means of a legal trump. With this understanding, judicial skepticism about party regulation can be re-conceptualized as channeling party conflict toward political, rather than legal, resolutions. Judicial skepticism prevents party rivals from preempting one another through regulatory mandates and court decisions and forces them to resolve their rivalry through political means. Contrary to the legal commentary, I argue that a set of Court decisions striking down regulation of party primary elections were correctly decided, though incorrectly reasoned. I show that such judicial skepticism about party regulation in these cases produces a counterintuitive but healthy effect of encouraging political resolution of political conflict.

In Part II, I set forth the conventional legal understandings of political parties and party regulation. In Part III, I challenge those understandings as fundamentally troubled. I first explain the risk of conceptualizing the party too narrowly. Courts and commentators fail to recognize the hydraulics of party regulation. The hydraulics of party regulation posit that party leaders, when they are unified, can frustrate party reform. I then explain the opposite risk of conceptualizing the party too broadly. Viewing the party as a unified coalition overlooks the politics of party regulation-vital intraparty conflict that often motivates party regulation and party-related litigation. The politics of party regulation reveal reform as part of ongoing political rivalry among party leaders.

In Part IV, I argue that a supralegal understanding of parties justifies judicial skepticism about party regulation. I explain that courts in party regulation cases are managing the political dynamics of conflict and cooperation among interested political actors, rather than acting upon a unitary political party. Judicial skepticism about party regulation is more likely to encourage political resolution of partisan disputes, and it is more effective in achieving this goal than judicial abstention. To close, I reframe the Court's handling of the party primary cases as an example of successful political management and demonstrate how judicial skepticism about party regulation in those cases helps channel intraparty conflict in healthier directions. Page 136

II Political Reform And The Appeal Of Party Regulation

It is no mystery why political reform so often resorts to the regulation of political parties. Parties are a pervasive feature of American politics, involved in virtually every aspect of government.6 They recruit candidates, operate campaigns, and mobilize voters. They develop political strategy, bring together like-minded politicians, and coordinate policymaking across different branches and levels of government. All fifty sitting governors are either Republicans or Democrats, and nearly...

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