The federalist safeguards of politics.

Author:Johnstone, Anthony
Position:III. The Distinctiveness of State Republicanisms A. Legal Distinctions 3. Parties through Conclusion, with footnotes, p. 450-485
  1. Parties

    Party regulation provides both an opportunity for variation among states and additional opportunities for innovations by individual parties within states. Nominating conventions are permitted for major and minor parties in twenty-two states. (174)

    These conventions, which act like small-scale primaries, can serve as a testing ground for new voting methods, such as voting by mail, internet voting, and instant runoff voting. (175) Eleven states hold open primaries, eleven states hold closed primaries, four states (including Nebraska's nonpartisan legislature) hold top-two primaries, and the remaining states hold some combination of primaries. (176) Most states use a plurality rule, but eleven states hold runoff elections for various offices. (177) Primaries exert their strongest disciplining effect in the forty-seven states that have some sort of sore loser laws; these laws spread relatively recently through the states between 1976 and 1994. (178) Meanwhile, state voter registration laws and a variety of polling place affiliation processes can strengthen or weaken parties' control of membership and the extent to which the parties can effectively close their own primaries. (179) As of 2014, thirty states provided for party affiliation in voter registration. Affiliations range from 51% and 65% Republican (Kansas and Wyoming, respectively) to 54% and 55% Democrat (Kentucky and Maryland, respectively). (180) Unaffiliated voters vary more widely, ranging from 8% in Kentucky to 92% in Arkansas. In the 1990s, twenty states offered straight-ticket voting, but only ten do now. (181)

    Given the Supreme Court's recognition of political parties' expressive association rights, state primary law often serves as only a default option subject to modification by individual parties. In ten states (Alaska, California, Hawaii, Idaho, Nebraska, North Dakota, Oklahoma, South Dakota, Utah, and Washington), one party chooses to operate its primary differently from how the other party operates its primary. (182) Notably, in all these states but one the Republican Party opts for closed primaries while the Democratic Party opts for a more open option; only in blue Hawaii does the Democratic Party close its primary while the Republicans keep theirs open. (183) These choices by party organizations, as well as legislation by the party in office, both track and shape the party dynamics within each state, with sometimes surprising divergences between the two. In one recent example, Idaho's Republican Party sued its standard-bearer Secretary of State Ben Ysursa. In the case, the Party succeeded in persuading a federal court to implement, under the First Amendment, a party closed-primary rule that its legislative supermajorities would not enact. (184) A Republican legislator in neighboring Montana also sued to close that state's primaries, with the support of the state party organization but not all of the Republican state legislators. (185) However, in Hawaii, a Democratic version of the Idaho strategy has so far been unsuccessful in voiding that state's constitutional requirement for an open primary. (186)

  2. Campaign Finance

    Perhaps the widest variation among state election law regimes appears in campaign finance law. Although most prominent discussions about campaign finance concern federal Super PACs and 501(c)(4) organizations, most campaign financing is conducted under state law for state elections. During the last major gubernatorial cycle in 2014, in which thirty-four of the fifty states held elections for governor, state candidates and committees (including ballot issue committees) raised $3.2 billion--a conservative estimate that excludes some independent expenditures and electioneering. (187) Despite these exclusions, and the fact that one-third of the States did not hold top-tier elections that year, the figure is still close to the nearly $3.6 billion in contributions to the 2012 federal presidential and congressional campaigns. (188) Over the most recent completed four-year cycle of 2011-2014, state campaign contributions amounted to nearly $7 billion, (189) outpacing estimated total federal campaign contributions of nearly $6.4 billion that same cycle. (190) State campaign finance and campaign finance law matter.

    States are evenly split in their choices of campaign finance rules. Individual contribution limits for 2015-2016 range from approximately $50,000 in New York to $500 in Alaska (for governor) and $12,532 in Ohio to $170 in Montana (for state legislature, per election). (191) Twelve states allow unlimited individual contributions. (192) Twenty-two states prohibit corporate contributions to candidates, while six allow unlimited corporate contributions. (193) Five states (Iowa, Kentucky, Massachusetts, Minnesota, and West Virginia) permit union contributions while prohibiting corporate contributions, while New Hampshire prohibits union contributions while permitting corporate contributions. (194) Twenty-eight states limit state party contributions to candidates, but those limits range from the same few hundred or few thousand dollars as individual limits to hundreds of thousands of dollars (per election) or more than a million dollars per cycle. (195) In addition to the three fully funded campaign "clean election" states (Arizona, Connecticut, and Maine), ten other states offer other public financing programs for some or all state offices. (196) Beyond these highlights, there are innumerable other distinctions in regulation of coordination rules, electioneering expenditures, attribution, and so on. In an era where many campaigns abandon the traditional political committee form, state corporate law adds a new layer of complexity to both state and federal campaigns. (197)

    All fifty states require candidate contribution disclosure, though reporting periods range from monthly throughout an election year, weekly and daily as the election approaches (Alabama and Arkansas), to once per primary and general election (Indiana, Massachusetts, Minnesota, Mississippi, Wisconsin, and Wyoming), sometimes with a post-election report. (198) A quarter of states do not require regular reports from political action committees. (199) Most states now require some form of independent expenditure disclosure from groups other than registered political committees, with triggers ranging from zero-dollar disclosure (Alaska, Georgia, New York, North Dakota, Ohio, Tennessee, and Wyoming) to $5,000 (Arizona, Florida, and Oklahoma) and $10,000 per four-year cycle in Maryland. (200) In setting disclosure thresholds for individual contributions, many states gravitate toward the $100 level regardless of electorate or campaign size. (201) Thresholds range from "zero-dollar" disclosure of the name and address of any campaign contributor in Florida, Michigan, and New Mexico regardless of contribution amount, (202) to a $300 contribution disclosure threshold in New Jersey and $200 threshold in Mississippi, North Dakota, and West Virginia. (203)

    A subtler but critical legal distinction is enforcement of campaign finance and related laws. Again, there is no dominant practice in the States, neither in terms of methodology or efficacy. Robert Huckshorn studied state campaign finance enforcement in the 1980s and concluded that, of the 26 states with election commissions at the time, there were two distinct groups: "(1) those which are empowered to enforce the law, but, for one reason or another, have an established history of limited enforcement or nonenforcement; and (2) those commissions possessing powers of enforcement which exercise them on a regular basis." (204) Two decades later, Todd Lochner studied education, auditing, and penalty enforcement of state campaign finance agencies and still found significant variation. (205) More recently, often obscure appointed state campaign practices commissions have shared the spotlight with aggressive enforcement of disclosure law by elected state attorneys general who possess broad supervisory powers over nonprofit organizations. (206) Beyond law enforcement, other state officials may be responsible for--and more or less effective at--ensuring campaign finance and related reports are disclosed to the public.

  3. Other Factors

    After Election Day, many other factors interact with election law to influence the form of a state's republicanism. Are the legislators full-time or part-time? (207) How often do they meet? What are their salaries? What professional staff is available? How open are meetings? How public are documents? How is lobbying defined? How is it regulated? How strict or loose are ethics laws? How does the state regulate procurement? What kind of civil service and whistleblower protections are there? Who enforces state ethics and lobbying laws? How engaged with state government are federal and state anti-corruption law enforcers? These questions are the building blocks of perennial state report cards on ethics and corruption. The inconsistency of state "grades" across reports suggests how complicated each state's political culture may be. (208) For example, a recent comprehensive study of state public integrity laws ranked New Jersey and Illinois in the top ten and the Dakotas near the bottom, in part because states with a history of corruption are more likely to legislate on public integrity while in smaller states "libertarian!] roots, a small-town, neighborly approach to government and the honest belief that 'everybody knows everybody' has overridden any perceived need for strong protections in law." (209) These studies necessarily reflect the subjective judgments of their authors, and only begin to capture the complexity of a state's resulting political culture.

    1. Rules, Regimes, and Systems of Republicanism

      There are sharp and persistent distinctions among the individual rules that structure state forms of republicanism and similarly sharp and persistent distinctions between those...

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