Do the parties or the people own the electoral process?

• Author: Hasen, Richard L.
• Position: California's blanket primary system

The editors of the University of Pennsylvania Law Review kindly asked me to comment, in light of the Supreme Court's recent decision in California Democratic Party v. Jones,(1) on the question: "Should courts protect political parties in the two-party system?" In Jones, the Supreme Court struck down as unconstitutional Proposition 198, a California voter initiative establishing a "blanket primary" that allowed voters, regardless of their party affiliation, to vote for any party's candidate in a primary election. For example, under a blanket primary a voter registered as a Democrat or Independent could vote for a Republican gubernatorial candidate to run in the general election. The Court held that the blanket primary violated the parties' First Amendment rights "by forcing political parties to associate with those who do not share their beliefs."(2)

Assuming that the term "political parties" in the Law Review's question refers to political party organizations,(3) my answer is that courts generally should not protect the two major political parties, the Democrats and Republicans, except from interference in each party's internal governance and from one party's attempt to gain partisan advantage over the other. On the other hand, courts should protect minor political parties. In the specific context of Jones, I argue that the major parties should not have been allowed to block a voter initiative establishing a blanket primary but that the minor parties probably should be constitutionally exempt from participating in it.

I begin Part I with a summary of my argument from an earlier article that the major political parties usually do not deserve or need protection from the courts, although they indeed receive such protection.(4) My prior argument contended that the state should not be allowed to defend a law infringing upon the First Amendment rights of minor parties or independent candidates by claiming that such a law protects "the two-party system."

My prior argument does not resolve Jones, however, because in Jones the two major parties advanced their own claims to First Amendment protection from the state. The Supreme Court in Jones recognized the major parties' First Amendment right to autonomy, giving the parties the last word on the form of political primaries used to pick party nominees to run in the general election.(5) I argue that Jones was decided incorrectly. Although parties have a First Amendment right to control their internal affairs, primaries are not internal party affairs. Rather, primaries are a means for voters to structure the electoral process by winnowing down candidates to a list of finalists to run in the general election. Voters through the initiative process or the state legislature should be allowed to dictate the form of that winnowing process, and they may reasonably choose the form of a blanket primary, a form which likely produces more moderate candidates to run in the general election.

After exploring the relationship between voters and party organizations in the current electoral system, I debunk a number of arguments that a blanket primary infringes on the First Amendment rights of major party organizations. My argument does not mean that states inevitably will adopt blanket primaries or other anti-party measures; major parties remain potent, perhaps the most potent, political forces in each state and their views often will carry the day in political battles, such as battles over the form of a primary.

In contrast to Part I, Part II explains that courts should generally protect minor parties from state regulation. Minor party organizations lack the structural and legal advantages enjoyed by the major political parties and need judicial protection as "discrete and insular minorities" to preserve their distinctive message and mission. The state also has less of a reason to regulate minor political parties. Finally, minor parties serve an important electoral function in raising issues not otherwise considered by major party candidates.(6)

Ultimately, the question whether courts should protect major parties' autonomy in elections reduces to a question of who controls the electoral process, major party organizations or the people. My vote is with the people, and I therefore fully concur with the claim that my position is a populist or progressive one.(7)

1. THE CASE AGAINST COURT PROTECTION OF MAJOR PARTIES AND THE "TWO-PARTY SYSTEM"

   1. The Conventional Wisdom on the Benefits of the Two-Party System and the Supreme Court's Embrace of That Wisdom(8)

      In 1942, political scientist E.E. Schattschneider remarked that "modern democracy is unthinkable save in terms of the parties."(9) Since that time, American political scientists dubbed the "responsible party government scholars" have concurred that strong political parties are indispensable to democratic government.(10) They see political parties, and the American two-party system in particular, as promoting three important interests.

      First, they argue that the two-party system promotes political stability.(11) Under this theory, the two-party system creates extremely large coalitions embodied by the parties. The parties as coalitions are able to accommodate a large number of diverse groups and viewpoints without being overly influenced by any one of them. Strong parties also make government more accountable by allowing parties to take the credit for positive government output and blame for negative output. Lastly, political stability results from both parties gravitating toward the center to attract the median voter.

      Second, they argue that the two-party system minimizes the power of factions.(12) If strong parties form encompassing coalitions that take into account the views of many interest groups, weak political parties allow elected officials to be swayed by interest groups pursuing narrow agendas. Factionalism not only undermines political stability, but it also leads to government gridlock and causes voters to lose confidence in the democratic system.

      Finally, responsible party government scholars declare that the party system provides an important voting cue for voters.(13) As Larry Sabato explains, "party affiliation provides a useful cue for voters, particularly the least informed and interested, who can use party as a shortcut or substitute for interpreting issues and events they may little comprehend."(14) Voters do not need to know anything about candidates besides their partisan affiliation in order to make a roughcut guess about each candidate's politics. Studies consistently have shown that Democratic politicians are more liberal and Republican politicians more conservative on a host of issues.(15)

      As I explain in Part I.B below, the responsible party government scholarship described above has been roundly criticized for its failure to provide either empirical support for the first two claims or general normative justification for favoring the two-party system. The theory is especially vulnerable to criticism because it fails to take into account dramatic changes in the nature of political campaigns since the 1960s.

      Nonetheless, the Supreme Court has proven itself quite enamored of the responsible party government position. Although earlier cases recognized that "[t]here is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them,"(16) the Court has moved steadily toward favoring a two-party duopoly. In the political patronage cases(17) and in a case involving political gerrymandering,(18) dissenting and concurring Supreme Court justices endorsed the concept that the state could promote the two-party system.

      Supreme Court support for the two-party system reached majority status in 1997 when the Court decided Timmons v. Twin Cities Area New Party.(19) Timmons concerned the question whether the state of Minnesota could prevent a minor party from endorsing the Democratic Party's nominee for the state legislature.(20) That practice, called "fusion," is a tactic minor parties use to increase their popularity and leverage their political power in the few jurisdictions, like New York, that permit it.

      The Supreme Court upheld the constitutionality of Minnesota's antifusion law. Among other arguments,(21) the Court accepted the state's argument that "political stability is best served through a healthy two-party system."(22) The Court remarked that the state may enact election regulations that "temper the destabilizing effects of party splintering and excessive factionalism."(23) Six Justices signed this opinion, and a seventh was willing to entertain the argument in a case where he believed the issue was presented properly.(24)

   2. Why the Major Parties Neither Deserve nor Need Special Constitutional Protection

      Current responsible party government scholars and the Supreme Court that has adopted their viewpoint are stuck in something of a time warp back to the 1950s, when Schattschneider's ideas became mainstream orthodoxy. Alternatively, they are perhaps stuck in a time and space warp to early twentieth-century England. After all, the responsible party government scholars' model is that of the British party system, "supposedly disciplined and cohesive, and unhampered by constitutional barriers in their governing function."(25)

      Whether or not the scholars' model historically came close to representing reality in the United States or Great Britain, the model has ignored fundamental and permanent changes to the nature of campaigning since the 1960s that have drastically altered the relationship among parties, candidates, and the voters. To understand these changes, it is useful to begin with political scientist V.O. Key's conception of the major parties as constituting three distinct elements: the party organization, the party-in-government, and the party-in-the-electorate.(26)

      The nature of party organizations, such as the Democratic National...