Also on CNN’s State of the Union this morning: Maryland’s former governor Larry Hogan predicting it “very likely” that No Labels will get on the ballot and “will offer an alternative” if Trump and Biden are the nominees of their two respective parties. David Axelrod responded forcefully that this would only shatter Biden’s candidacy. (This post will be updated with a link to video and/or transcript when available.)
UPDATE: here’s the video; the No Labels discussion starts at 6:05.
Since writing my Washington Post column on procedural issues relating to whether or not Trump is constitutionally disqualified from serving as a president again under section 3 of the Fourteenth Amendment, I have been asked by some journalists a version of this question: even if the correct constitutional interpretation is that Trump is disqualified, isn’t it too politically dangerous to enforce this disqualification because of the anger it will provoke among Trump’s most ardent supporters, who amount to a sizeable percentage of the Republican primary electorate?
My main response to this question is to say: if Trump is on the ballot, then if he wins he must be permitted to take office (because otherwise it would be unfair to the voters); and if one believes that Trump is constitutionally disqualified from taking office even if he wins, then it’s necessary that he not be on the November 2024 ballot—so that voters have the opportunity to choose between eligible candidates.
Here is one more point relevant to the strong desire of many Republican primary voters to be able to vote for Trump in the primaries: in our electoral system, there is no “right” belonging to voters to have their preferred candidate be eligible to participate in a political party’s primary. The political party itself, given its First Amendment rights, can disqualify individuals from being its nominee and thus preclude individuals from being eligible to run in a primary that forms the basis for determining the party’s nominee. I don’t want to review in this blog post the details on previous litigation over this point, involving would-be candidates like David Duke, but I believe the basic principle is clear.
Thus, the Republican Party could render Trump ineligible for its nomination without regard to the issue of constitutional disqualification under section 3 of the Fourteenth Amendment. Obviously, the Republican Party has not done that. Nonetheless, it remains true as a matter of law that voters in the party’s primary are at the “mercy” of the party’s own rules and decisions concerning its nominating process. This includes the degree to which the party wishes to make the results of the primaries binding on the delegates at its convention—on first ballot only, etc.—as well as the degree to which the party does or does not want to add “superdelegates” and the like as an additional input into the nominating process.
Continue reading Do Voters Have a “Right” that Trump Be on the Ballot?Must-read major analysis by Dan Balz and Clare Ence Morse in the Washington Post, in what promises to be “the first in a series of reports examining what is fueling the visceral feeling many Americans have that their government does not represent them.” Some excerpts:
“… today, a minority of the population can exercise outsize influence on policies and leadership, leading many Americans increasingly to feel that the government is a captive of minority rule.
“At times, protection of minorities and their rights from the will of the majority is needed and necessary. Checks and balances afford further protections that nonetheless can seem to hamstring government’s ability to function effectively. But on balance, the situation now is dire. Americans are more dissatisfied with their government than are citizens in almost every other democracy, according to polling.
“Henry Brady, professor of political science and public policy at the University of California at Berkeley, has been studying these issues for many years. As he surveys the current state of the United States’ democracy, he comes away deeply pessimistic. ‘I’m terrified,’ he said. ‘I think we are in bad shape, and I don’t know a way out.'”
Check out, for example, the piece’s decline in trust chart, and the graph on the decline of competitive states in presidential elections. Also:
“’In comparison to European countries, our constitutional system is not well suited for polarized political parties,’ said Nathaniel Persily, a law professor at Stanford Law School. …
“In 2024, two of the nation’s least populous states — West Virginia and Montana — could flip control of the Senate from Democrats to Republicans, if GOP challengers prevail over Democratic incumbents. …
“As the number of swing districts has declined, another phenomenon has become evident: Even in open-seat races, which historically have been more contested than those involving incumbents, the number of landslide victories by members of both major parties has increased dramatically. …
“In just two states is the legislature split between Republicans and Democrats. In more than half of the states, the dominant party enjoys a supermajority, which means they can override vetoes by a governor of a different party or generally have their will on legislation.
“Similarly, full control of state government — the legislature and the governor’s office — is the rule rather than the exception. Today 39 states fit this definition. The result is a sharper and sharper divergence in the public policy agendas of the states.
“The dominant party has been able to move aggressively to enact its governing priorities. …
“These divisions have made it possible for the dominant party to govern with little regard to the interests of those with allegiance to the minority party and often little accountability as well. The result is two Americas with competing agendas and values. …
“The gap between public policy and public opinion is one major consequence of today’s frozen federal government. …
“’The danger, [historian Jill] Lepore said, ‘is that [the Constitution] becomes brittle and fixed — and then the only way to change your system of government or to reform a part of it is through an insurrection.”
Fascinating Nate Cohen analysis in the N.Y. Times.
“The results [of a recent poll] depict a Republican coalition that consists of six groups:
The Moderate Establishment (14%). Highly educated, affluent, socially moderate or even liberal and often outright Never Trump.
The Traditional Conservatives (26%). Old-fashioned economic and social conservatives who oppose abortion and prefer corporate tax cuts to new tariffs. They don’t love Mr. Trump, but they do support him.
The Right Wing (26%). They watch Fox News and Newsmax. They’re “very conservative.” They’re disproportionately evangelical. They believe America is on the brink of catastrophe. And they love Mr. Trump more than any other group.
The Blue Collar Populists (12%). They’re mostly Northern, socially moderate, economic populists who hold deeply conservative views on race and immigration. Not only do they back Mr. Trump, but he himself probably counted as one a decade ago.
The Libertarian Conservatives (14%). These disproportionately Western and Midwestern conservatives value small government. They’re relatively socially moderate and isolationist, and they’re on the lower end of Trump support compared with other groups.
The Newcomers (8%). They don’t look like Republicans. They’re young, diverse and moderate. But these disaffected voters like Democrats and the “woke” left even less.”
The piece details each of these groups. The relevance to election law, as I see it, is for issues like structural reform of primary elections and ranked choice voting, along the lines of Alaska’s new system and others like it. (Also relevant for advocates of proportional representation or the kind of “self-districting system” I’ve proposed.)
This paragraph particularly caught my eye:
“If it feels as if [“the Right Wing (26%)”] dominates the Republican Party beyond its numbers, that’s because it does. This is the most highly engaged group of Republicans, routinely making it a kingmaker in Republican primaries. Overall, the Right Wing represents over a third of the Republican primary electorate, even though it’s about a quarter of Republican-leaning registered voters.”
Gerald Seib in the Wall Street Journal with an extensive analysis on both the recent history and current polarized climate that sets the stage for the prospect that a third-party campaign could roil the 2024 presidential election:
“A Pew analysis of congressional voting last year illustrated the trend. It found that, on average, Democrats and Republicans in Congress are farther apart ideologically now than at any time in the past 50 years. Today there are only about two dozen lawmakers who could be identified as “moderate,” compared with more than 160 a half a century ago. An analysis of congressional votes showed that both parties have moved away from the center, though Republicans have moved significantly farther to the right than Democrats have to the left.
“The balance of power between the two parties actually seems to be exacerbating the trend. The political system appears trapped in an endless loop of frustration, in which control bounces back and forth between Republicans and Democrats and neither can break out to implement a clear agenda. Each of the last five biennial elections has been a “change election,” in which control of at least one branch of the national government—the House, Senate or White House—has changed hands. Meanwhile, the anger stoked on social media alienates many Americans and drives them to the extremes of the ideological spectrum.
“It might seem that this balance of power would prompt the two parties to work together in the center, but it has had the opposite effect: With little to no margin for error, leaders of both parties seem desperate to hang onto their most reliable, ideologically motivated base voters, and afraid to take the chance of offending those base voters by compromising too much with the other side. …
“No Labels leaders insist that they see not just a chance to run but to win, based on polling the organization has done nationally and, in recent days, in eight presidential battleground states. Dritan Nesho, the group’s pollster, says that battleground-state polling found that between 60% and 70% of voters in swing states said they would be open to considering a moderate, independent presidential ticket if the main-party choice is between Joe Biden and Donald Trump, similar to the sentiment found nationally. ‘Our models suggest that if we were able to convert about six in 10 of these voters we would win the Electoral College outright with 286 Electoral College votes,’ he says.” …
The group’s leaders say they won’t necessarily field a ticket if they don’t see a chance for victory—or if their efforts seem to be succeeding in moving the major parties toward the middle. ‘If they force one or both parties more towards the center of the country, if they force the political system to, for a change, actually speak to the needs of the common-sense majority instead of the wants of their bases, and that closes off an opening for a No Labels ticket, that’s fine with us,’ says Ryan Clancy, the group’s chief strategist. ‘That is success.’ The group’s leaders also say they have no interest in being a Trojan Horse that helps Trump win.”
“… the winner-take-all nature of the presidential election system, under which no Electoral College votes are rewarded for just coming close to winning a state, makes the task even harder.”
I have made it clear in numerous previous ELB blog posts why a third-party presidential bid is so dangerous unless and until states adopt ranked-choice voting, or another majority-winner system, for awarding their electoral votes.
I recently had the pleasure of talking about both of these questions with Lee Drutman on Politics in Question. As I have been spending more time talking to others about prospects for party reform–including this past week at More Parties, Better Parties Building a Stronger Democracy in America hosted by Stanford’s Center on Democracy, Development and the Rule of Law, the Center for Ballot Freedom, New America, Protect Democracy, and Lyceum Labs–I have been struck by how little salience the significant constraints that the Supreme Court has placed on party reformers has in these discussions. This is not true when the topic is reintroducing fusion politics where Timmons v. Twin City Area New Party (1997) is directly on point. But it has been true when conversations turn to primary reform as an alternative. This was also my experience when I served on Governor Wolf’s advisory commission on redistricting. As with primary reform, the Supreme Court’s constitutional constraints on race-conscious policymaking are nuanced, even as its implications for drawing majority-minority districts are fairly clear. And there again, many of the representatives of civic groups and experts from other disciplines were operating with inaccurate understandings of that doctrine. Fortunately, in the party reform space as Didi Kuo and I recently discussed with Daniel Stid, there are options for building better parties that do not depend on legal change and thus are not constrained by the Supreme Court. Still, it seems worth while for all of us to simplify for democracy reformers the complicated constitutional constraints within which they are operating. I do so with respect to party reform in a short forthcoming chapter Associational Rights of Political Parties. I will link to it when it is posted on SSRN.
The Article’s primary focus is on the partisan stakes, but the big picture here is the vicious cycle of low voter turnout, policy responsiveness, apathy, and machine politics.
Across Atlanta, . . . [Just a] year after residents voted in historic numbers to help “turn Georgia blue,” fewer than 3 out 10 turned out for the mayor’s race, despite the widespread desire for a leader who can help the city rebound from a year of setbacks.
Why? A combination of apathy and a failure to mobilize voters around local issues.
Kendra Cotton, chief operating officer for the New Georgia Project, founded by former Democratic gubernatorial candidate Stacey Abrams, said that her group is still in the process of “educating the electorate that we registered.”
“Folks, particularly when you think about the progressive side of the aisle, have ceded local races, county races, state races and have put an emphasis on national races,” she said.
And the results are predictable:
Younger voters, non-homeowners and newly registered voters in particular . . . didn’t participate, even though the campaign included extensive debate over the future of policing and how to deliver social services in the most populated city in the Deep South.
“Despite the social justice movement that just happened in 2020, it should tell you something that people felt a greater urge of necessity to come out and protest for social change than they did to participate in a local municipal election,” [Atlanta City Council member Antonio] Brown said.
(with Joey Fishkin, University of Texas Law School)
Bob Bauer just offered a thoughtful and engaging commentary on our work and a new report by the Brennan Center, both focused on the relationship between the political parties and campaign finance. We agree with part of Bob’s post and think the rest is plausible—and who knows, he might even be right.
An outsider might find it strange that we’d find a post that is nominally a challenge to our work to be so convincing. But the truth is that none of us can make dependable predictions in the highly volatile world of politics these days. We’re in uncharted territory. For instance, these days no one can even confidently identify which candidate the once-predictable Republican primary electorate is going to choose as a standard bearer—in part because the old rule, which was that the winner will be the establishment candidate with all the hard-money donors, no longer seems to be the rule. Things are changing more quickly than anyone anticipated, and we’re all struggling just to keep up with the latest innovations of this campaign season.
The debate between Bob and us centers on a simple question: what happens if we fund the formal parties in the same way we fund the shadow parties (the SupertPACs and 501(c)(4) and (c)(6) organizations)? Our worry is that if the formal parties’ financing is identical to that of the shadow parties’, this will gradually transform the formal parties into institutions that look more like the shadow parties—hierarchical, almost entirely beholden to big donors—thus seriously eroding what remains of a reasonably pluralistic party system. Bob’s worry, on the other side, is that if we don’t do something to level the playing field between the formal parties and shadow parties, the formal parties don’t have much of a future in politics.
We think Bob may overstate the differences between our positions, though that’s likely due to a failure of exposition on our part. Bob reads us as opposing all change in the way we fund parties. But we are pretty close to where Bob is on these questions. We aren’t ready to go as far as Tom Edsall and lift all restrictions. But, like Bob, we are certainly open to a more robust funding structure, especially one targeted—as the Brennan Center’s report is—at certain type of party activities. At least one of us is ready to support substantial increases in the contribution caps, and both of us favor allowing candidates and parties to work more closely together in raising and spending money. We’re just not ready to reproduce, jot for jot, the funding structure for the parties that we now have for the SuperPACs and 501(c) organizations.
It’s possible that both Bob and the two of us are right, and it’s just as possible that we all are wrong. And therein lies the dilemma for those interested in reform. The two of us are nervous about flipping the switch and letting the parties raise unlimited sums. We thus approach the problem more cautiously than Bob. He seems ready to flip the switch, at least as an experiment. We think it is better to be cautious. To mix our metaphors in an egregious fashion, it’s going to be very hard to put the genie back in the bottle. Once the parties become accustomed to unlimited fundraising, what incentive will they have to regulate themselves? And if donors become accustomed to ruling the official party organizations the way they rule their own shadow party entities, those expectations will become very hard to unwind. Even so, it’s important to give Bob’s proposal its due, and that is this: There are costs to not acting just as there are costs to acting. There are costs to doing too little as well as to doing too much. The formal parties might well wither and die if we don’t find some way to get them the funding to compete. We’re all muddling through, in other words.
Modesty is an underappreciated virtue in academic writing, and our paper had modest aims. We were under no illusions that everyone would be convinced that we were right on the prediction side; we aren’t that certain we are right ourselves. What we wanted to do was spark a different conversation about the future of the political parties, one that wasn’t confined to “strengthening” the parties but that paid attention to the crucial institutional differences between the shadow parties and the formal parties. We wanted, in short, to spark just the conversation that Bob and the Brennan Center and others are now having.
With Joey Fishkin, University of Texas Law School
The Brennan Center has just released a new report on the future of campaign finance. There are going to be a lot of reports like these during the next few years as the reform community wrestles with the legacy of Citizens United and tries to identify the path forward. We’ll be lucky if most of these reports are as pragmatic and intellectually serious as this one. (In the interest of full disclosure, we should note that we were both consulted during the process of writing the report). It’s worth highlighting several key moves that the report makes.
First, the report centers on the important role the political parties play in our democracy.This focus is itself good evidence of the pragmatism of the authors, Ian Vandewalker and Daniel Weiner. The political parties have long been targets of reformers’ ire and have largely been treated as agents of corruption (and obstacles to reform). But as the Brennan report recognizes, the political parties are essential to the long-term health of our democracy, and they have changed fundamentally and dramatically in ways that ought to concern us.
In focusing on political parties, the authors don’t make the mistake of equating the official parties (the GOP and the Democratic Party) with “the” party. As we’ve written elsewhere, these days “the party today is best understood as a loose coalition of diverse entities, some official and some not, organized around a popular national brand. The official party organization is part of it, but so too are independent entities—not just shadow parties, but groups likes the NRA, the teachers’ unions, and the Heritage Foundation. Officeholders are also part of this coalition, as are donors and activists. All are part of the party writ large.” That move allows the authors to track what we’ve described as the strange, seemingly contradictory status of the political parties right now. High levels of polarization and partisanship have made the parties writ large quite strong. But the official parties are weakening as they lose money, talent, and power to what we’ve called the “shadow parties.”
The Brennan report insists – again, rightly in our view – that political participation matters, and that one of the important costs associated with the decline of the official parties is that we are losing crucial sites for democratic participation and pluralist politics. Relative to the shadow parties, the official parties have many points of entry; they are more porous and more open to average voters. The shadow parties, in contrast, are designed to answer to their funders and their funders alone. As money and power shift from the official parties to the shadow parties, opportunities for participation and pluralism decline. This shift is one of the most important things happening right now in the American political system; we think the Brennan report is right to highlight it and to focus on these consequences.
While we thought that many of the proposals the Brennan Center put forward were well worth considering, we particularly welcomed the authors’ attention to the unintended consequences of one reform proposal that is popular these days: leveling the playing field between the shadow parties and the official parties by allowing the latter to raise large sums of money in the same fashion the shadow parties do. We understand the impulse behind this proposal. But the authors rightly worry that changing how the official parties are funded might also change how they are structured. We must be attentive to the risk is that the official parties won’t be the same official parties that play such a welcome role in our system but will instead look more like the shadow parties than we intend. In other words, if we allow the official parties to be funded exactly the way the shadow parties are funded, will they soon also be run the way the shadow parties are run? There’s no way to know in advance, but there are plenty of reasons why we might not want to find out.
Coauthored with Joseph Fishkin, University of Texas Law School
In yesterday’s post, we described how major functions once performed by official party organizations are migrating instead to what we call shadow parties—groups situated outside the official party apparatus, but clearly aligned with one party or the other. The Koch brothers are at the leading edge of the trend. Their fundraising network and complicated array of “outside” groups are increasingly developing the capabilities to provide most of the services one would previously have expected the official party to provide to campaigns—from fundraising networks to television ads. Now the Koch brothers are even offering a voter database with a software interface that many campaigns prefer to the RNC’s.
As we noted yesterday, some people describe this as a fight between “the party” and “outside groups,” but that frame conceals a lot of the real action. The Koch brothers are almost as deeply intertwined with the Republican Party as the RNC itself is. But there are differences. The Koch brothers represent a faction within the party, rather than the party as a whole. Their shadow party groups answer to the people who write the checks, not the rest of the party. This fight is an internal struggle for control of the party. And it’s starting to be clear who has the upper hand in that struggle. The big winners are likely to be those intra-party factions with the enormous resources necessary to rival and sometimes beat the official party at its own game.
So, a skeptic might ask, isn’t this basically a case of what Sam Issacharoff and Pam Karlan call the “hydraulics” of campaign finance reform, where money blocked from one channel (the official parties) flows through another (the shadow parties)? Yes and no. Here, when the money flows through a different channel, the party ends up with a different center of gravity. It means some voices count more inside the party than they did before—and other voices count less.
These shifts raise a fundamental question: who ought to be in control of the party, anyway? In the paper we just published, we imagine three models of who should control a party:
1. The equality model: On this model, each party member should have equal influence over the direction of the party. If you think of the party as a democratic arena, this model is analogous to one-person-one-vote.
2. The elite-driven model: On this model, the parties are not democracies; they are more like firms, competing in the broader democratic arena. In this analogy, party elites are the executives; the donors are the shareholders; and ordinary voters are like consumers who can accept or reject what the elites are selling. This model has its roots in a Schumpeterian conception of democracy.
Neither of these models, we think, is adequate—either positively or normatively. We think parties both are, and should be, both internally democratic and actors in the broader democratic arena, selling their policies to the general public. As we discuss in the paper, we think there are good reasons to depart from the equality model, while not embracing the elite-driven model either. So we propose
3. The pluralist model: This hybrid model takes into account the party’s multi-layered role in our politics. On this model, the party stands in part for ordinary voters who make up the base of the party, in part for the party elites who run it, and in part for the activists in between—the party faithful, who knock on doors and show up at rallies and caucuses and provide much of the party’s energy.
The party faithful are much more heavily involved in the party than ordinary voters, but much less influential than the Koch brothers. One major worry we have about the shift from official parties to shadow parties is that the party faithful may get squeezed out, leaving us with a politics that is more centralized and broadcast-like. This kind of politics leaves little room for the vibrant, unruly, participatory sort of democracy that is driven by large numbers of people who feel strongly about their politics but don’t have an extra few million dollars lying around.
For more see the paper. Cross-posted on the Balkinization.
Coauthored with Joseph Fishkin, University of Texas Law School
A recent story perfectly embodied the central puzzle in a paper that we recently published in the Supreme Court Review. The story tells about the war between the Koch brothers and the Republican National Committee over whose database of voter information will be used in 2016. It sounds a little arcane, but voter data is the lifeblood of any campaign: who is on your side, who do you need to persuade, who is a reliable voter, and where do they live? Keeping track of all this and providing the information to campaigns is a classic function of political parties—a function that is central, as Jack points out, to what parties do in the information age. In the past this function has been carried out by the official parties. But now the Koch brothers have built a database that is easier to use and well liked by campaigns. GOP leaders, however, are nervous about having such an important campaign instrument in the control of private actors rather than the formal party structure. The story, in short, is about the war between the official parties and what we call the shadow parties – the SuperPACs and nonprofits now playing an increasingly important role in the electoral process. These days the shadow parties are doing a lot more than taking out some ads. They are taking over major functions once reserved for the official parties.
Our article begins with McCutcheon v Federal Election Commission, which struck down the FECA’s caps on how much hard money in toto one donor could give to candidates and party committees in a given year. It quickly morphs into a rumination on the future of the party system. That’s because McCutcheon can only be understood against the deep shifts taking place in American politics.
By some measures, the parties are stronger than ever. Party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups,” which have taken over a startling array of core party functions. But these “outside groups” are deeply and durably aligned with one party or the other. They are run by consummate party insiders. That’s why we call them shadow parties. For reasons we discuss, the shadow parties aren’t lone wolves. They are deeply intertwined with the official parties and properly understood as part of what we call the “the party writ large” – the large network of donors, activists, and organizations that constitute the party.
The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument—and the emerging conventional wisdom in the field—is that McCutcheon will level the playing field between the official party leaders and the shadow parties by allowing donors to pour more money into the official party structure.
We are skeptical. It’s not that the hoped-for effect won’t exist. It will. Some funds that would have flowed to outside groups will seep back into the official party structure. But we think the effect will be modest. Moreover, the crude argument—pitting “outside” funders against “the parties”—fundamentally misdiagnoses the problem. The real problem with the growth of shadow parties has less to do with the “strength” or “weakness” of the official parties relative to outside groups and more to do with who exercises power within the parties writ large. What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large.
That’s precisely why the database story is so interesting. The Koch brothers are part of the GOP writ large. This is an internecine war. Indeed, as the story makes clear, it’s not just money that is flowing away from the official parties toward the shadow parties; it’s talent and authority. We are beginning to witness a brain drain of sorts, with some of the most important and talented players in politics being housed in the shadow parties. It’s not surprising that the Koch brothers’ shadow party has created a better campaign tool than the RNC. They are running their organization with the funding, talent, and efficiency that we typically associate with the private sector. But there is a tradeoff there, and it’s a big one: private shadow party groups are beholden only to their donors, not to the rest of the party.
Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. Money isn’t just shifting from one place to another within the party writ large; it is shifting from one type of institution to another, quite different type of institution. Compared to the official parties, the shadow parties are more hierarchical and less porous. They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful—the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites—and largely eliminate their already-diminished role within the party writ large.
As we’ll discuss tomorrow, the shift toward shadow parties raises important questions not just about the future of American politics, but about who ought to control political parties. We’ll turn to that normative question in the next post.
Cross-posted on Balkinization.