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.