Oversight of regulated political markets.

• Author: Issacharoff, Samuel
• Position: Role of government regulation in the political process

The purpose of this Panel is to address the role of government regulation in the political process. This strikes me as a peculiar construct since it invites the conception that alternatives are to be drawn between regulated and unregulated conduct. Such a contrast further presumes that government regulation is an artificial or unwelcome inroad into what would otherwise be properly functioning private arrangements or revealed market preferences. Indeed, I noted with some interest that other participants in this Symposium repeatedly invoked certain terms with regard to the regulation of one subset of the political marketplace, campaign finance. Panelists spoke of "spontaneous ordering," "private ordering," and "individual liberties"--classic terms used to attack the incursion of unwarranted regulation into the realm of presumed individual autonomy.(1)

I find this invocation of a world of politics without government as curious as it is unimaginable. Political competition as we know it does not exist except in the context of state-created rules and regulations, and any discussion that presumes the contrary is simply misguided. Just as baseball must presuppose a consensus on how many outs each side has and what constitutes first base, democratic politics cannot exist without fairly rigidly prescribed rules of conduct imposed from outside the political process itself. Without clear ground rules that secure, among other things, that the losers of today can have a fair opportunity to displace the winners in the future, the orderly transfer of governmental authority among competing political factions would be impossible. But beyond the structural obstacles to democratic governance in the absence of fairly immutable rules of political engagement, there is a further conceptual difficulty in positing some natural order of unregulated politics. The idea of private ordering of majoritarian processes runs deeply counter to the central public choice insight which has grounded so much recent writing on the political process.(2)

The public choice insight is basically that the idea of a revealed majority will is incoherent and that majority preferences are not stable over time or over a range of questions posed to the relevant pool of decisionmakers. As a consequence, those who set the agenda regarding how questions are posed to voters have tremendous power. The agenda setters can both manipulate the majority will and take advantage of the fact that large majorities rarely organize themselves around intensely desired objectives. The basic public choice move is then to call into question the revealed preferences of majorities and to ask whether purportedly majoritarian preferences are anything more than rent-seeking capture by the most self-interested, energetic groups.

If we pursue this analysis, we find that, as difficult as it may be to discern true majoritarian preferences in a democratic political order, it is impossible to speak of a revealed preference outside of political organizations, political institutions, and, by extension, political regulation. Absent some channeling factor, majorities cannot act. If we were to try to think of the types of governmental action that are most likely to draw favor at this Symposium, be they national defense or the renaming of National Airport as Reagan National Airport, there would be no form by which that clear majoritarian preference could be put into effect except through a preexisting regulatory structure. To put it quite simply, there are no pre-political politics, and unless we are going to go back to the Hobbesian sovereign, we have to understand that there is going to be a regulated environment and that government regulation is a precondition for any kind of effective representative politics. At the most basic level, democracy presupposes strict government regulation of how electoral choices are made.

Unfortunately, recognizing that governmental regulation of the political arena is inevitable only begins the inquiry, for there must still be some normative basis for analyzing the rules and regulations that actually govern our political process. The fact that democratic politics cannot exist independent of a regulatory environment means that the basis for analyzing any workable theory cannot be an unregulated state of nature. What, then, are the bases for evaluating the rules and regulations that risk frustrating majoritarian preferences, as difficult as those majoritarian preferences may be to identify?

Every rule constricts choice in ways both subtle and overt. It is rather evident that a rule requiring a candidate to pay a filing fee or gather a certain number of signatures in order to get on the ballot limits the field of potential candidates--even while it remains perfectly clear that there must be some limits on how many candidates or parties can be listed on a ballot of administrable dimensions.(3) But other rules are no less constricting for operating in the background. For example, the selection of legislative representatives from first-past-the-post territorial districts also limits the choices available to the electorate. There is a well-known and well-documented propensity for such territorially based elections to result in two and only two relatively centrist parties.(4)

So the question is, how do we judge these types of regulations? There are certain parameters that our jurisprudence has given us. For...