Tabatha Abu El-Haj has posted this draft on SSRN. Here is the abstract:
Hardly a day goes by without a headline decrying the hyperpolarization and dysfunction of Congress. While the 2016 election has heightened these concerns, the fact is that for nearly a decade those who follow politics closely have been sounding alarm bells about the myriad ways our party system is failing to live up to its democratic function. Some have been preoccupied with ideological polarization and legislative gridlock; others with the apparent disconnect between the policies pursued and the preferences of the constituencies represented; others still with an important secondary effect — the aggrandizement of executive power. Whatever the emphasis, there is little question that the growing academic consensus is that the party system is in need of fundamental reform if responsible and responsive governance is to emerge. The results of the 2016 election strongly indicate that this is one arena in which the public and experts agree.
This Article argues that it is time to bite the bullet and admit that a large part of the problem is that the governing theory of how to achieve responsible and responsive parties is just not working. Party reformers — both academics and practitioners — need to accept that “responsible party government” has run its course as a means for achieving democratic accountability, that the Supreme Court ought to abandon its attachment to the theory as a driver of its decisions pertaining to the First Amendment rights of political parties, and that it should be eschewed as the theoretical underpinning of all regulatory proposals.
Without denying that parties are associations of ruling elites in the business of seeking election or that educating voters is difficult, the Article draws on the insights of a range of empirical research in sociology and political science to argue that we can demand more from parties and expect more from citizens. An alternate path to responsive governance, it argues, exists once we conceive of political parties primarily as civic associations rather than producers of brands. Viewed as associations, the capacity of political parties to foster responsiveness and accountability would depend less on their capacity to speak and the coherence of their platform, and more on the depth and breadth of their political networks. The strength of a political party ought to be assessed in terms of its capacity to generate informed, representative political engagement through a broad cadre of party activists with ties to a broader more representative swath of the electorate.
The Article concludes by exploring the implications of an associational party perspective for legal doctrine and regulatory reform, by focusing on two related current controversies. The first is the constitutional challenge, pending in the Supreme Court, to the federal ban on using soft-money to fund campaigns. The second is the debate over how to deregulate party financing to level the playing field so they can effectively compete with Super PACs and similar entities.
Looking forward to reading this!