Heather Gerken has posted this draft on SSRN (forthcoming, Houston Law Review). Here is the abstract:
In his Frankel Lecture, “Outsourcing Politics: The Hostile Takeovers of Our Hollowed Out Parties,” Sam Issacharoff suggests that legal changes have systematically disabled the leadership of political parties from exercising sway over their candidates. As a result, party leaders cannot create the necessary incentives for moderation, and office holders are being swept away from the center by the gales of polarization.
This paper suggests that, at bottom, Issacharoff isn’t asking the right question. His paper asks how we can reduce the effects of polarization, when the real question may be whether we can. It’s possible that legal changes contributed to rising levels of polarization; but it’s also possible that the two phenomena occurred simultaneously or, at the very least, that the latter matters a good deal more than the former. Issacharoff offers a cheerful tale – give more power to the party leaders, and they’ll rein in the extremists. But there are at least two other possible endings to his story. The first is that even an empowered leadership structure simply can’t exercise enough control over its members to make a difference. The second is that it is possible for the leadership to exercise control over its member, but that shift will only ensure that the leadership is targeted by the same forces now pushing candidates to the extremes. If the DNC has more power, extremists will target the DNC, and the results will be little different.
Issacharoff, in short, wants to give the party leaders a better hand to play. But it doesn’t matter how many trump cards you hold if you are playing in a hurricane.