Category Archives: PoliticsMarkets25

Rosalind Dixon: “Politics as Markets: Here and There, Then and Now”

The following is a post by Rosalind Dixon, part of the Politics as Markets at 25 sympsosium:

Twenty-five years on, Sam Issacharoff and Rick Pildes’ Politics as Markets: Partisan Lockups of the Democratic Process continues to play a central role in shaping US debates over the appropriate role for the Supreme Court in policing the political process.[1]  It has also helped spark a global conversation about the idea of courts and “democratic hedging” – or a form of modern “comparative political process” or “comparative representation-reinforcing” theory.[2]

Like Ely in Democracy and Distrust,[3] in Politics as Markets, Issacharoff and Pildes argue for an important and legitimate role for the US Supreme Court in protecting the channels of the political change.  But unlike Ely, they emphasize the importance of constitutional structures rather than rights as the vehicles for the Court playing this role; and the importance of political competition as key to democratic accountability and change.

The US Supreme Court has not always endorsed these ideas.  Indeed, in recent years the Court has arguably retreated from a willingness to protect competitive political markets – by declining to invalidate various forms of partisan gerrymandering.[4] 

But still the relevance of Politics as Markets lives on – both in the US and elsewhere. 

Continue reading Rosalind Dixon: “Politics as Markets: Here and There, Then and Now”
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Yasmin Dawood: “Politics as Markets: Paradigms for the Law of Democracy”

The following is a post from Yasmin Dawood, part of the Politics as Markets at 25 symposium.

Politics as Markets: Partisan Lockups of the Democratic Process, by Samuel Issacharoff and Richard Pildes, is a landmark article in the law of democracy field. It has been a foundational text in various debates, and it continues to influence how we conceptualize crucial questions about elections, democracy, and the law. In this essay, I shall suggest that Politics as Markets has developed a number of conceptual themes and paradigms, and, in so doing, has generated and illuminated (at least) four categories of questions and issues that lie at the heart of the law of democracy field.

(1) Judicial Review: Structure vs Rights

Drawing on corporate law scholarship, Politics as Markets argues for a “shift from the conventional first-order focus on rights and equality to a second-order focus on the background markets for political control.” On this view, courts should examine the structure of the political market to ensure that it is sufficiently competitive instead of controlling politics through the enforcement of individual rights. Democratic politics is thus viewed as “akin in important respects to a robustly competitive market—a market whose vitality depends on both clear rules of engagement and on the ritual cleansing born of competition.” Under the political markets approach, the role of the courts is to strike down democratic ground rules that have been manipulated by partisan forces.

The “structure vs rights” paradigm has dominated a significant portion of the scholarly work on election law. Scholars have identified the advantages and disadvantages of a structural approach, focusing in particular on the role of the courts in a constitutional democracy. Those in favour of the individual rights approach have further elaborated the benefits of the conventional approach while sharpening their critique of the structural model. Others have argued that court decisions on election law rules feature both structural and rights-based reasoning; that is, structure and rights can be co-constitutive rather than oppositional. Yet another line of inquiry has extended the “structure vs rights” paradigm to democratic rights, arguing that such “structural rights” inevitably have both structural and individual elements.

(2) Partisan Self-Entrenchment and Competition

Another conceptual theme is partisan self-entrenchment—the idea that “existing holders of political power seek to perpetuate their political control, not by distributing benefits to their supporters, but by capturing the basic structures and ground rules of politics itself.” Politics as Markets examined such “political lockups” with respect to the White Primary Cases and the rules that disadvantage third parties. Political lockups take place when insiders use their control over the electoral machinery to “rais[e] the cost of entry into a political market that is already insufficiently competitive.” The article references Michael Klarman’s work on entrenchment, and develops the implications of partisan self-entrenchment for courts, arguing for “heightened review for those decisions that structure the rules of political engagement to the benefit of incumbent lawmakers.” The article also references John Hart Ely’s antitrust model of judicial review under which courts intervene to fix a systemic malfunction of the political market. In contrast to Ely’s focus on individual rights and minority group interests, Politics as Markets emphasized the broader structure of the political process and the need to preserve a “robustly competitive partisan environment.” 

The cure to partisan self-entrenchment is to promote competition by destabilizing the hold of insiders on the machinery of the state. Competition matters because it is only “through an appropriately competitive partisan environment … [that] one of the central goals of democratic politics [can] be realized: that the policy outcomes of the political process be responsive to the interests and views of citizens.” Thus, partisan competition is required to ensure democratic responsiveness.

These arguments have generated animated debates about whether or not courts should be engaging in structural interventions. Scholars have also questioned whether structural interventions by the courts would have any real impact on politics given the influence of larger political forces. For instance, FPTP elections tend to produce a two-party system, and so, the argument goes, eliminating barriers to the participation of third parties would not lead to a shift in the two-party structure. Despite these critiques, the concepts of partisan self-entrenchment, political lockups, and competition provide powerful paradigms for understanding a central threat that democracies face. Indeed, our current era of democratic decline and rising authoritarianism is characterized by the self-entrenchment of political insiders and the suppression of competition.  

(3) The State

A central conceptual theme of Politics as Markets is that “the state” is “always a constellation of currently existing political and partisan forces.” Professors Issacharoff and Pildes posit that the state “must not be viewed as an abstract, detached, or nonpartisan entity in most cases of political regulation.” They draw on the example of the White Primary Cases, arguing that since the Democratic Party had “a complete monopoly on politics” in Texas at the time, the actions by the state were “tantamount to the Democratic Party using state law to self-regulate.” Politics as Markets thus challenged the conventional account in both law and democratic theory which tended to treat the state as a neutral entity. To be sure, there are good arguments for why the state ought to behave in a nonpartisan manner when it comes to political regulation, but the recognition that the state is partisan serves as a crucial baseline assumption in much of election law scholarship.

(4) Political Parties

Politics as Markets also emphasized the fundamental role of political parties in a democracy, noting that “[p]olitics occurs through organization, and that organization turns out to be the political party.” Although Anthony Downs focused on political parties in his economic theory of democracy, later work by public choice theorists centered on the behaviour of individual legislators in response to re-election incentives. As such, Politics as Markets directed attention to the role of partisan, as opposed to personal, motivations in a representative democracy. It thus brought renewed attention to the theme of political parties, and the role of partisanship in a democracy more generally, within election law scholarship.

In sum, it is no exaggeration to say that Politics as Markets has developed conceptual themes and paradigms that have shaped the development of the law of democracy field. This article has sparked debate and contestation; generated new ideas and research; and contributed to the election law lexicon. Its influence has extended to the realm of comparative election law. Our collective scholarship will no doubt continue to benefit tremendously from the insights of Politics as Markets.

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Michael Pal: Exporting Politics as Markets

The following is a post from Michael Pal, part of the Politics as Markets symposium:

It’s a real pleasure to write a few words to honour “Politics as Markets” and all that it accomplished. For many of us outside the United States preoccupied with the law of democracy, “Politics as Markets” was the academic work around which we oriented ourselves in the 2000’s and beyond. It opened a door that took many of us past the stale debates in our jurisdictions around the relationship between law and democracy that were going on at the time.

In Canada, the article and the scholarly responses to it played a key role in inspiring the small number of us writing about election law to take seriously the issue of partisan manipulation of the democratic process. The field of the law of democracy/election law in Canada was mostly non-existent at the time. It largely grew out of engagement with that specific issue of partisan manipulation. We tried collectively to put the failings of Canadian democracy at the top of the agenda of constitutional scholars in the way that equality rights, proportionality analysis, and different forms of judicial review were. “Politics as Markets” and the debates around it were an undeniably important part of the story.

To take an example, the leading case from the Supreme Court of Canada on redistricting at the time “Politics as Markets” was published was the Reference re Provincial Electoral Boundaries (Saskatchewan), 1991 2 SCR 158. A scandal-plagued provincial government had blatantly gerrymandered the electoral map to help its chances of being re-elected. The three opinions from the Justices of the Supreme Court of Canada take different views on the constitutionality of the map. But none of the opinions took seriously the fact of gerrymandering. The partisan dimension was entirely ignored or wished away. “Politics as Markets” showed us a way to integrate the reality of partisan manipulation of election law into our understanding of the case and the others like it on campaign finance law, political party regulation, and so on.  

Amidst the current, widespread acknowledgment of democracy’s uncertain health and future, it’s easy to lose sight of just how eye-opening “Politics as Markets” was at the time. Many of us working outside the United States saw in “Politics as Markets” and Sam and Rick’s subsequent work the animating assumption that democracy was an incomplete project. In their work we had a powerful ally in making the point that democracy was more fragile than it appeared. This point wasn’t always a popular one to make during a period of triumphalism about democracy’s future in many countries in the following the article’s publication in 1998. The underlying view expressed in “Politics as Markets” about the vulnerability of the democratic project even in long-standing democracies has of course proven prophetic.

Re-reading the article now it strikes me just how many different paths it laid out. The road not taken in Canada at least was the use of private law doctrine to reshape public law. The language of “lockups” stayed but the invitation to look at anti-trust/competition law or other areas of private law to re-interpret constitutional principles didn’t find many takers. I think that holds true as well in the comparative scholarship on political process theory that looks first to Ely and then to Issacharoff and Pildes.

“Politics as Markets” had extensive appeal outside of the U.S. and continues to resonate today. The article helped the law of democracy grow as a field in Canada and shaped its trajectory. Most importantly, the great gift of “Politics as Markets” was to show us a deeper way of integrating law and politics into our scholarship.

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“Politics as Markets” after 25 Years: Lowering Expectations about the Role of the Courts in U.S. Democracy

It’s hard to overstate the importance to the legal academy of Sam Issacharoff and Rick Pildes’s article from 1998, Politics as Markets. Their shift of the focus of election law from rights and interests to the structure and function of the political and electoral system led a generation of election law scholars to a greater focus on competition and the role of institutions. Despite concerns expressed by Bruce Cain, Dan Lowenstein, Nate Persily and me about the risks and limits of the structural approach to election law, it’s fair to characterize Politics as Markets as having moved from radical innovation to accepted orthodoxy.

Politics as Markets has had less influence on U.S. courts than on academia. In my initial critique of Sam and Rick’s piece, I included a discussion of the limits and risks of relying on courts to promote “adequate” political competition, believing both that such terms were contested and would prove difficult for courts to agree upon and administer. And in fact, aside from Justice Breyer’s flirtation with incorporating competition into constitutional doctrine in the campaign finance case, Randall v. Sorrell, the U.S. Supreme Court has been pretty hostile to arguments for it to consider appropriate political competition, from its dismal line of ballot access cases, to its Lopez Torres decision in which Justice Scalia for a Court majority affirmatively rejected political competition as a concern of the courts, to the Rucho v. Common Cause case where the Court declared political gerrymandering nonjusticiable in federal courts. Concerns over competition have not fared well.

Indeed, despite Sam and Rick’s promise of courts saving us from political sclerosis, the courts have been mostly a disappointment. What’s worse, in my view as a non-structuralist, the Supreme Court has failed to protect voting rights adequately, and, as I argue in my upcoming book, A Real Right to Vote, the Court has sinned most greatly in its stingy reading of Congress’s power to protect voting rights under the Reconstruction and other voting rights amendments. Even though Sam and Rick are concerned primarily with structural issues, I think they likely will agree with my critique of the role of the courts when it comes to implementation of the Court’s balancing of rights and interests, especially in the protection of minority voters.

This is not to say that the Supreme Court necessarily plays a negative role in U.S. democracy. Importantly, the Supreme Court and the lower state and federal courts held the line in 2020, when the specter of election subversion moved from theory to reality in a startling and concerning way. The Court may not be prepared to generally police the political process, but the Justices are also resistant to becoming accomplices in the full demise of American democracy.

Courts today can’t solve our problems with negative partisanship, polarization, fragmentation, and other modern maladies that affect the American body politic. But they can help hold the line so that we can continue to have a (flawed) political marketplace and not authoritarianism.

That’s a low bar, admittedly, and far from the invigorating role that Sam and Rick imagined for the judiciary in the late 1990s. But it’s a backstop role I’m grateful for nonetheless.

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Ming-Sung Kuo: Law, Institution, and Constitutional Time in Politics As Markets

The following is a guest post from Ming-Sung Kuo, part of the Politics as Markets at 25 symposium.

A View from an Outsider

When Politics As Markets (PAM) was published in 1998, I was a law clerk with the Taiwan Constitutional Court – two years after “Mr. Democracy” was elected president by popular votes first time in Taiwan’s history.  Today, I, as an outsider in every aspect, am humbled to be asked to contribute to the symposium marking the publication of Professors Issacharoff and Pildes’s landmark piece in election law for 25 years.  Coming from a new democracy (Taiwan) and living in an old democracy (UK), I am an itinerant outsider to democracy in America.  Knowing little about election law, I read Professors Issacharoff and Pildes’s jurisprudence of PAM from an outsider’s perspective.  To bring forth the centrality of institution and time in their envisaged law of democracy, I begin with what Professors Issacharoff and Pildes have actually said.

The Jurisprudence of Politics as Markets

Stated clearly, their aim is “to read into the Constitution an indispensable commitment to the preservation of an appropriate competitive political order.”  “[The lack of] any underlying vision of democratic politics” they found in the US Supreme Court’s electoral jurisprudence needs remedying.  The remedy centers on a doctrinal “shift from the conventional first-order focus on rights and equality to a second-order focus on the background markets in partisan control.”   

Noticeably, assuming “a functional account of anticompetitive regulation of political markets,” PAM builds on the critique of US case law concerning disenfranchisement in party primaries and various partisan barriers to political competition, with comparative insights drawn from the German Federal Constitutional Court (GFCC).  In a nutshell, PAM amounts to a jurisprudence aimed at remedying the capture of the State by partisan forces in blocking political competition, from within and without existing parties, through judicial intervention. 

Institution (I): Courts in Remedy

Professors Issacharoff and Pildes’s court-centric jurisprudential account of how partisan barriers to political competition can be removed is a function of their realistic view of the State as “a constellation of currently existing political and partisan forces.”  On this view, the State’s political branch controlled by partisan forces cannot be relied on as the solution to partisan lockups.  The Supreme Court – as of 1998 – would offer the hoped-for remedy for the locked democratic process. 

Yet the judicial role PAM envisages looks more complicated than suggested above when viewed in a comparative light.  To illustrate the practicality of their proposed structural approach, Professors Issacharoff and Pildes have drawn on the GFCC jurisprudence resulting from issues such as representation of minority parties.  What has received less attention is how the GFCC has remedied partisan lockups.  Long story short, the GFCC effectively functioned as the legislature, for example, when it lowered the statutory threshold from 2% to 0.5% for the votes received that would qualify a new party for public financing.  Such judicial remedies contribute to the regulation of parties in the democratic process.  Yet whether courts should be expected to take on this political role by offering quasi-legislative remedies is doubtful – all the more so in jurisdictions where remedial choices are more limited than the German experience exhibits.

Institution (II): Parties in the State  

That the judicial role effectively straddles judicial remedies and political regulation further gives away PAM’s view of political parties in the State.  As discussed therein, political parties have long been recognized as State agencies in US case law.  At first glance this seems to parallel jurisdictions where political parties are constitutionally regarded as “semi-State organs.”  This parallel only goes so far.  In the Unites States, parties are recognized as State agencies, if only to clear the hurdle of state action for judicial intervention.  Once it is cleared, the role of political parties in the State becomes blurry.  Party politics requires remedial judicial intervention because parties are instrumental to the success of (groups of) individuals in the democratic process of political competition.  As decisive electoral machines, political parties are seen as State agencies and judicial correction holds the key to the regulation of political competition.

In contrast, in jurisdictions where political parties are constitutionally treated as (semi-)State organs, they are subject to comprehensive regulation that exceeds the judicial capacity of remedial intervention.  The centrality of the judicial role in the PAM jurisprudence on political competition discloses the reduced role of parties as electoral machines and the attendant ad hoc statutory regulation of parties in the United States.       

Time (I): Nascent Democracies vs. Established Democracies

PAM’s characterization of parties as political machines for electoral success entails its suspicion of all anticompetitive practices.  Measures aimed at strengthening (intra-)party cohesion and stability are not exempted.  To Professors Issacharoff and Pildes, constraints on write-in ballots and fusion candidacies, for example, look suspicious.  Seen in a comparative light, the combination of enthusiasm about political competition and hyper scepticism about party cohesion-enhancing measures is revealing of the time when PAM was born. 

As comparative studies of laws against party switching – a strong measure against party fragmentation and instability – have shown (here; here), such anti-defection legislation is less frequent in established democracies than in new democracies where a wholesome political culture is yet to form.  When democracies are nascent, political stability takes precedence.  The PAM jurisprudence’s optimism in prioritizing competition over stability discloses its origin in American democracy’s triumphant moment.  As established democracies, America included, are seeing trying times, PAM’s value choice is put to the test. 

Time (II): Parliamentary Democracy vs. the Madisonian Republic

The different moments democracies find themselves in are not the only issue of time PAM has raised for the regulation of political competition.  As suggested above, competitive party primaries are foregrounded in its discussion of the regulation of parties.  Without such competitive processes, party elites would dominate the selection of party candidates.  The emphasis on party primaries speaks to the political calendar in the Madisonian Republic where terms of elected offices are fixed in the Constitution.  Competitive primaries give parties readiness for the electoral battle next up on the predetermined political calendar.

In contrast, competitive selection of candidates and party readiness for electoral battles may not work in tandem in parliamentary democracy where parliamentary term is not fixed.  With parties expected to be ready for the next political battle on short notice, imposing competitive selection on parties would not fly.  Leaving party readiness for general elections unaddressed, the focus on party primaries in the PAM jurisprudence is predetermined by the Madisonian Republic’s constitutional time.

Concluding Remarks

An outsider’s rendering of America in the 19th century is said to give the best account of America’s democracy.  My outsider take on PAM barely did Professors Issacharoff and Pildes’s landmark piece justice.  My aim is modest.  Through the lenses of institution and constitutional time, I have tried to place the emphasis on competitive party politics in the PAM’s court-centered jurisprudence in the constitutional ordering of American democracy.  Read against the changing state of democracy in America, Politics As Markets’ call to arms against partisan lockups still resonates when democracies in the world are facing new challenges.

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The Contributions of Politics as Markets

I’ve long thought of Politics as Markets as the most important contribution to election law in memory (noting that I’m using Politics as Markets as a metonym for the whole series of related articles by Rick and Sam). What made Politics as Markets so groundbreaking? At least three things. The first was Rick and Sam’s declaration of independence for election law. Mainstream constitutional law might continue to balance burdens on individual rights against countervailing state interests in areas like substantive due process, equal protection, and the First Amendment. But election law, said Rick and Sam, should be different. Election law should abandon rights-versus-interests balancing and replace it with a direct focus on how electoral regulations affect structural democratic values. This proposal raised the profile of election law. It could, and should, be its own intellectual domain, free of the doctrinal frameworks that govern constitutional law. The proposal also had immense appeal for scholars (like me) interested in how electoral rules affect values we care about. In Rick and Sam’s model, functional impact would be the touchstone of legal and policy analysis.

The intellectual arbitrage of Politics as Markets was also revelatory. Rick and Sam extensively cited the corporate law and antitrust literatures—not the usual reading lists of public law scholars. In these literatures they discerned a move from first-order to second-order regulation: ensuring that the marketplace as a whole is properly structured as opposed to policing individual firms or transactions. In a flash of insight, Rick and Sam realized that the same move could be made in election law (indeed, in all of public law). Electoral systems could also be structured to ensure their dynamism and resilience, in which case courts could step back from adjudicating disputes one by one. This application of private law ideas to public law contexts was exceptionally creative. It was also persuasive for those (again like me) with a preference for wholesale over retail electoral regulation.

Politics as Markets was pioneering, lastly, in its emphasis on a single democratic value: electoral competition. (Too) much work in this area observes that many democratic values exist, often pointing in different directions, and then demurs from reaching firm conclusions in the face of this multiplicity. In contrast, Rick and Sam bit the bullet and argued that competition should be the primary concern of scholars, judges, and policymakers. This argument was notable for its elegant simplicity, collapsing a welter of considerations to just one factor. It also strengthened the connection between election law and corporate and antitrust law, where (a different kind of) competition is the predominant objective. Competition is distinctive, too, as Rick and Sam pointed out, in that it’s attractive both intrinsically (for its own sake) and instrumentally (because it promotes the achievement of other democratic values, like responsiveness and accountability).

Of course, I have my quibbles with Politics as Markets. (What academic wouldn’t?) Its fixation with competition arguably reflects its era, when uncompetitive U.S. House races, in particular, were seen as a major national problem. Today, we face a host of democratic threats unrelated to lack of competition, like pervasive misinformation and a waning commitment (among some) to free and fair elections. I also wish that Rick and Sam had fleshed out their proposal in certain respects. For instance: How exactly should competition be measured? Should competition be conceived only as a sword (to attack anti-competitive practices) or also as a shield (to defend pro-competitive practices)? And what’s the empirical evidence that specific practices actually are anti- or pro-competitive? Most fundamentally, I diverge from Rick and Sam in the priority I place on competition. I certainly think it’s an important democratic value. But more vital still, I argue in several articles and a forthcoming book, is alignment between governmental outputs and popular preferences. A polity can still be democratic (I think) if its elections are uncompetitive but its government largely does what its people want. But if the link between public policy and public opinion is broken (in my view) so is democracy itself in any meaningful sense.

To be clear, these are cavils—not foundational disagreements—with Politics as Markets. In my alignment work, in particular, I endorse Rick and Sam’s move from rights-versus-interests balancing to structuralist, functionalist analysis. I also share their interest in competition, just as a driver of alignment rather than the ultimate desideratum for scholars, judges, and policymakers. Put differently, if Politics as Markets is now the central cleavage of election law, I know on what side of that divide I stand. It’s Rick and Sam’s side.

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Niels Petersen and Emanuel V. Towfigh: Politics as Markets in Germany

The following is a guest post from Niels Petersen and Emanuel V. Towfigh, part of the Politics as Markets at 25 symposium:

Politics as Markets by Professors Samuel Issacharoff and Rick Pildes is a seminal, path-breaking piece of scholarship that resonated far beyond the American academy. As Issacharoff humorously bemoaned in his unparalleled humility, the concept went from highly controversial to popular opinion in no time, depriving its authors from the praise that is usually bestowed upon the masters between those stages. We want to take the opportunity of this brief note to make good for that omission and attend upon the authors.

To that end we want to point to one maybe less obvious reason for the national and international success of Politics as Markets: its diligent analysis of domestic and foreign courts. One foreign court plays a prominent role. Issacharoff and Pildes cite the German Federal Constitutional Court as an example how courts can police competition-inhibiting political practices. Their analysis of the German case law is sharp and accurate. Indeed, the Constitutional Court has developed effective doctrinal tools to control for the rigging of the political landscape in favor of incumbent parties and prevent a disproportionate use of public funds in a system in which parties are financed to a considerable extent by the tax payer.

Regretfully, the Court does not always make use of these tools even in situations which would arguably necessitate it. After the publication of Politics as Markets the Court has, in fact, sometimes fallen short of the standards which it was praised for. One prominent recent example of the Court’s failure to act is a case from 2015. The applicant was the Ecological Democratic Party, a party focusing on environmental issues that has never received a sufficient number of votes to be represented in parliament. It argued that the incumbent parties represented in parliament had skewed the political playing field through indirect party financing. While the Federal Constitutional Court had limited the direct financing of parties through public funds by imposing strict limits, the applicant argued that parties had greatly extended indirect party financing by other means. This concerned, in particular, the financing of support staff for parliamentarians and the funding of political party foundations. For example, the applicant showed that the budget for political support staff for parliamentarians had been increased eight-fold in inflation-adjusted real terms since 1970.

However, the Federal Constitutional Court rejected the application as inadmissible. It argued that the applicant had not made a violation of the principle of competition equality for political parties, one of the doctrinal instruments that the Court had developed to police a tilting of the political playing field, plausible. It required the applicant to show a concrete misappropriation of these funds. However, the advantage that parties gain from these funds is usually more subtle.

What explains this reluctance of the Court to engage more deeply with the issue? The most plausible explanation is a strategic one. Georg Vanberg has shown that courts are often reluctant to go against core interests of political parties if they fear political backlash. Roughly a year before the decision, on April 3, 2014, the Frankfurter Allgemeine Zeitung, one of the leading German daily newspapers, published a small note. The journalist reported from a meeting of the German Federal Minister of the Interior with a few selected public law professors at an Italian restaurant in Berlin. The topic of the discussion: the reform of the Federal Constitutional Court. In the years that have passed since this meeting, no serious proposals for a reform of the Court have emerged. Nor has the topic been openly discussed in political circles. Instead, the very purpose of the meeting may well have been to leak the information about it to the press—the German variant of the ‘court-packing plan’ game. The decision regarding the Ecological Democratic Party may not have been the ‘switch in time’ witnessed as a constitutional moment in US legal history, but it certainly hints at the fact that the Constitutional Court had registered the signal.

Niels Petersen and Emanuel V. Towfigh

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Stephen Gardbaum: Politics As Markets: Then and Now

The following is a guest post from Stephen Gardbaum, part of the Politics as Markets at 25 symposium:

In retrospect, Politics As Markets appeared at the high point of global democracy.  In 1998, towards the end of the third wave, estimates of the number of democracies in the world were around 117.  This was the year before Putin and Chávez came to power, soon to be followed by Erdoğan, and assumed their roles as mentors to the leaders of the current era of democratic backsliding. 

The landmark article provided a sophisticated framework for understanding, and responding to, what were then two major, and related, democratic concerns.  In the vocabulary of antitrust favored by the authors, these were: (1) the problem of an overly concentrated and insufficiently competitive political marketplace where a one- or two-party system operates and (2) abuse of an existing dominant position.  This second occurs where the one or two already dominant parties attempt to further entrench their position by manipulating the electoral ground rules to prevent new entrants and competitors.  Politics As Markets urged courts to evaluate their role from this perspective of the underlying structure of an appropriately competitive democratic system, rather than the more traditional, and often overly deferential towards incumbents, balancing of individual rights and state interests.             

Fast forward to 2023.  The number of democracies in the world has significantly declined, by one estimate to 84.  Democratic backsliding and erosion are all-too familiar terms and occurrences.  In the current era, the two main problems are, in many ways, the opposite of those on which Politics as Markets focused.  First, as one of its authors has recently emphasized, is the fragmentation – as well as the polarization — of the political marketplace, rather than its concentration.  The old world in which political logic led to a duopoly of a center-right and center-left two party or bloc system, under both first past the post and proportional representation, has disappeared in many democracies.  It has been replaced either by a highly polarized version, in which the “center” barely exists in the face of ideological extremes and purity, and/or a deeply fragmented system in which new entrants have quickly emerged to challenge or decimate the existing major parties or leadership.  The result in each case is that creating and maintaining a governing majority has often become a difficult task.  Such fragmentation has occurred both among and within political parties. 

The second contemporary problem, put again in antitrust terms, is the hostile takeover of the existing political marketplace and democratic system.  One version of this phenomenon has been the rapid creation of one-party dominance by a populist party after a “normal” election victory, through successful branding of political competitors as enemies of the people, legal and political assaults on opposition parties, and the dismantling of independent institutions, including the courts and media.  Although manipulation of ground rules has undoubtedly been a factor in subsequent electoral victories, reasonably free and fair elections nonetheless remain.  It is the other essential components of constitutional democracy that have been more fundamentally hollowed out.  The result is a new type of highly concentrated political power.  A second version is the hostile takeover of an existing major party by an outsider whose commitment to democracy is partial and instrumental at best, as in the case of Trump and the Republican Party.                               

If this is what has changed since Politics As Markets appeared, two other factors that its analysis illuminated and underscored have remained the same, and are at least as relevant now as then.  The first is that the U.S. Supreme Court has continued its “tentative and uncertain” role in protecting an appropriately competitive democratic system.  Indeed, on one crucial issue, partisan gerrymandering, it has moved backwards by overruling (without acknowledgement) the 1986 case of Davis v. Bandemer, mentioned in the article, and holding the practice to be non-justiciable in federal court.  This is in fairly stark contrast not only to the German Constitutional Court, as described in Politics As Markets, but to many other apex courts around the world that have in the interim come to view supporting and protecting the structure and processes of democracy as a key part of their role. The second, and more important, is the general approach of focusing on the institutional structure and design of democracy, rather than viewing matters primarily through the lens of individual rights.  For seeking and exploiting weaknesses in these structures, and not massive violation of rights, has been the common priority of those intent on hollowing out democracy. Although obviously not a panacea, and alongside substantive policies addressing the legitimate grievances of those left behind by globalization, technology, and neo-liberalism over the same quarter century, scholars and courts should keep their sights trained on the structures, processes, and design of democracy.  For they can and do both facilitate and hinder fragmentation or hostile takeovers, or whatever other major challenges democracy faces at a given point in time.         

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Bruce Cain: Politics as Markets???

The following is Bruce Cain’s contribution to the symposium on the 25th anniversary of the publication of Issacharoff and Pildes’s Politics as Markets:

After complaining about my harsh treatment of them when they first came into the Election Law field, Rick Pildes and Sam Issacharoff via Rick Hasen have asked me to reflect on the legacy of their piece Politics as Markets. Both are first rate legal scholars, and this article was well-executed and highly influential.  They also have been very kind to me over the years, including inviting me to an academic year long workshop at NYU in 2012-13.  If I had an ounce of decency, I would leave it at that, but alas, I don’t.  And they know it.  They apparently want me to unbury the hatchet.  

They rightly claim that Politics as Markets stimulated a wider discussion about democratic design. They hoped that a reorientation towards structural context and away from individual rights would improve judicial judgments in Election Law cases.  Ther article built off earlier efforts such as Anthony Downs’ book An Economic Theory of Democracy and works by various public choice theorists using insights from classical economics to inform political analysis.  So far so good.  

But just as economists have found themselves marginalized in modern policy discussions re climate change, immigration, or free trade by their economic efficiency worship so Issacharoff and Pildes painted themselves into a corner with competition and lockup obsession. Competition, they suggested, would heal much that ails American politics, from gerrymandering to voting rights.  Certainly, there are reasons to worry about a decline in the number of competitive seats, but the causes are much deeper than the rules and processes that Election Law focuses on.  We can try to moderate extremism and polarization with ranked choice voting, drawing more marginal seats, etc., but we need to be humble about our capacity to engineer our way out of deepened partisan polarization or angry white nationalism.

Secondly, to their credit they called for closer recognition of political parties I election Law but conceived of the problem as not having enough party choice and the solution as lowering barriers to entry for third parties.  I am willing to bet that neither one of them is praying for a centrist or far left party in 2024 that might take votes away from the 2024 Democratic Presidential candidate.  And would we think American politics would benefit from giving a white nationalist party formal representation in Congress. The major difference between our system as opposed to a proportional representation one is that negotiation among the coalition partners takes place before the election as opposed to in closed door negotiations between parties after the election.  I think that the two party system gives voters a little more control, but even if that is wrong, I doubt that PR would improve our politics in any meaningful way.

While Issacharoff and Pildes acknowledged the exitence of parties, they viewed them mainly as large interest groups that colluded with each other through state laws to maintain their duopoly.  I don’t see much collusion today. Instead, we have highly polarized parties that can’t get anything done unless they have trifecta control.  The right way to think about parties is to ask what we want them to do to support democracy and to regulate them like public utilities so that they are incentivized to act that way.  That goes far beyond how competitive they are.  The strongest incentives are in campaign finance, but every tool in that box that might have given political parties more gatekeeping power over factionalism was decimated by the strong first amendment interpretation handed down to us by the Court.  By the way, Issacharoff and Pildes were so obsessed with two party lockup that they worried that “In the absence of serious judicial scrutiny in this area, a two-party Congress will be free to create a bipartisan cartel with any federal public financing statute (at the state level, public financing can be and has been enacted through voter initiative.”  Some cartel-it ended when the Democrats thought they could win without it.  

One last point—I was very concerned at the time about the fiction that that court could be the neutral authoritative force to articulate and defend the democratic structures except where the Constitution was explicit.  The fundamental assumption of political science is that all aspects of political design are inherently endogenous: politics infects everything eventually.  The political question doctrine is dead and now the Courts are pulled into all sorts of issues without much guidance from an 18th Century Constitution. Any attempt to construct one through constitutional conventions or the Congress are DOA.  The stability of the US system and the strong centrifugal forces pulling this country apart make me yearn for the days bipartisan lockup (if indeed they ever existed). The answer is not just a few more competitive seats, but more effort at enhancing centripetal forces, mediation, and compromise.  

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Yen-tu Su: ‘Politics as Markets’ and Phantom Voter Laws

The following is a guest post from Yen-tu Su, part of the symposium on Politics as Markets at 25:

Politics as Markets has often been read as a structuralist manifesto for the then emerging field of the law of democracy. “In cases involving the regulation of politics,” Samuel Issacharoff and Richard Pildes emphatically argue that “courts should shift from conventional first-order focus on rights and equality to a second-order focus on the background markets in partisan control.” This paradigmatic assertion is so thought- provoking that a cottage industry has since emerged to debate whether and how judicial oversight of political regulation should and can be so retooled and transformed. 25 years after the publication of Politics as Markets, the individual-rights-versus-state-interests balancing remains the dominant approach in the world of comparative election law jurisprudence. But there has been, indeed, a profound change in the way we think and talk about “rights” and “state interests” in the democratic political processes: Thanks in no small part to the penetrating insights of Politics as Markets, now we are getting much better at telling whether the emperor is naked or clothed.  

Perhaps two recent cases concerning the phantom voter problem can help us understand and appreciate what the politics-as-markets prism enables us to see. As a common criterion for voter qualification, the residence requirement is primarily administered through an official registration system of some sort. However, in order to prevent or minimize a common electoral malpractice whereby a non-resident uses fictitious or fraudulent registration of residence to vote in a political community to which she does not belong, a legal safeguard that can be characterized as the phantom voter law must be in place to enforce the bona fide residence requirement for voting. Such voting rules aim at protecting electoral integrity and preserving, as noted by Justice Thurgood Marshall in Dunn v. Blumstein (1972), “the basic conception of a political community.” But surely, they can also be framed and understood in a more general sense—as part of the “background rules that structure partisan political competition.”   

Politics as Markets teaches us that ground rules of political competition are susceptible to anticompetitive partisan manipulation by those in power, and this is arguably what happened to the phantom voter law in Hungary. In 2021, the Fidesz-dominated Parliament amended the Citizens Register Act to the effect of opening the gate for “voter tourism,” for it essentially allows citizens to register and vote in any districts of their choosing without having to live in there actually. Clear-eyed observers of Hungarian politics like Kim Lane Scheppele have little trouble deciphering what Viktor Orbán’s Fidesz wanted from this new law: a gerrymandering-like opportunity for the ruling party to change voter composition to their electoral advantage. In 2022, however, the Hungarian Constitutional Court dismissed as meritless the constitutional challenge brought by MPs from the opposition. Reading this rubber-stamping decision, one cannot help but lament the partisan capture of a potential political trustbuster.

In Taiwan, phantom voting has been considered a criminal electoral offense since 2000, and the Criminal Code was amended in 2007 to specifically prohibit any citizen from defrauding the household/residence registration for electoral purpose and from voting subsequently. According to the census, more than 6 million people in Taiwan do not actually live in their registered residence. The most common cause is the failure to update household registration upon moving, and some people make false registration for reasons unrelated to elections. Against this backdrop, some 5 thousand plus people had been convicted of phantom voting (mostly in ground-level local elections) in the years 2000-2022. Several citizen petitions had been filed to the Taiwan Constitutional Court (TCC) since as early as 2009 to challenge the constitutionality of using criminal law to deter and punish phantom voters, but it was not until July 2023 that the TCC delivered its decision of the Phantom Voter Case.

Politics as Markets advices courts to construe the protection of individual rights from a structural perspective of how the democratic political process functions as a whole, and this is arguably how the TCC approached the question whether the criminal phantom voter law unconstitutionally infringes on the citizens’ right to vote. Construing the constitutional right to vote to include the freedom to join or leave a political community by choice, the TCC subjected the disputed Criminal Code provisions to a strict proportionality review. Ultimately, the TCC upheld all the laws but vacated a high court decision for applying too narrow a definition of bona fide residence in the context of voting. What drove the TCC to its conclusion was not only a compelling case for preserving and protecting democratic self-governance of a political community. The TCC also emphasized how phantom voting could lead to unfair distortion of electoral competition. The TCC did not cite Politics as Markets, but a strong case can be made that the TCC had heeded its advice and took political competition seriously.

Whether it is about detecting anticompetitive manipulation, or about channeling structural concerns of political competition into the rights discourse, Politics as Markets continues to shed light on how we approach issues of election law. If we have become better students of the law of democracy, we owe much to the inspiration and guidance of this masterpiece. Happy 25th Anniversary to Politics as Markets.

Yen-tu Su is a research professor at Institutum Iurisprudentiae, Academia Sinica, Taiwan.  

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Democracy, Twenty-Five Years On

(This post is co-authored with Sam Issacharoff)

Our thanks to Rick Hasen for organizing this symposium and for giving us the chance to revisit our work from 25 years ago.  Neither of us had read Politics as Markets in more than a decade and the passage of time generates not only nostalgia but a sense of wonderment that, early on in the development of the law of democracy, this article sought to push the field to focusing on the larger structure and organization of the democratic system when trying to understand discrete issues of doctrine, history, or policy.  Our organizing conceptual approach was to wrest from traditional, doctrinal-rights analysis a normative vision of the importance of political competition, and the threats to it, that law and policy had to engage.  

This shift to focusing on a more structural or systemic perspective operated at four levels: 1) at the level of doctrine, where we offered re-assessments of the validity of doctrinal approaches in canonical cases stretching from Burdick v. Takushi to Timmons v. Twin Cities Area New Party and on to Shaw and campaign finance; 2) at the level of history, where we showed that the underlying dynamics of political competition, not a culture of white supremacy alone, explained The White Primary cases and the history of disenfranchisement itself; (3) at the level of policy, where we urged greater attention to the importance of political competition, and to the risk of insider self-entrenchment; and 4) at the level of the institutional framework of democracy itself, where we raised issues of oppositional party rights, independent commissions, and the first-past-the-post system. Along all four dimensions, the article pursued these efforts by introducing to the analysis of doctrine, policy, and institutions frames of reference rooted in comparative law, private law, and public-choice infused economics. 

What is most gratifying, and surprising even to us, is to see how the themes for so much of each of our later work can be seen in this early article.  While some legal scholars focused entirely on the first, more doctrinal, level of the piece, we will focus here on the last three levels Politics as Markets engaged and how they run through much of our subsequent work. 

Our perspective applied not just in the context of the election process, but to the normative structure of government as a whole.  A completely unexpected application of those themes, for example, emerged in the wake of September 11th.  In trying to make sense of how the legal system should respond, we noticed, in Between Civil Libertarianism and Executive Unilateralism, that the courts had generally avoided deciding these issues either in terms of inviolable individual rights or of unilateral executive power over national security.  Instead, the court had focused analysis on second-order structural or systemic inquiries into whether policies could claim the backing of institutional support from both Congress and the President.  In Separation of Parties, Not Powers, Pildes and Daryl Levinson argued that the Framers’ view of separation of powers and much doctrinal work in the area was outdated, due to the changing nature of political competition and the way partisan dynamics between Congress and the President best explained how the system had come to work (or fail).

Similarly, in The Hydraulics of Campaign Finance Reform, Issacharoff and Pam Karlan built on the more systemic approach to campaign finance issues that Politics as Markets had taken.  Bypassing doctrinal debates about rights of free expression versus the value of anti-corruption interests, they focused on the structural effects of the regulatory effort, arguing that it was doomed to fail because money would continue to flow, albeit through other channels, no matter what.  Again emphasizing the underlying dynamics of political competition behind legal and institutional issues, Pildes, in his work on Giles v. Harris and disenfranchisement, showed how factional political conflict within the white South drove the “Redemption” era.

Much of our later work remained within this same analytic framework, but in a dramatically chastened democratic world, both domestically and abroad.  Politics as Markets was written with the optimistic tone of an era one of us called “The Age of Democracy,” in The Constitutionalization of Democratic Politics – an era marked by the end of the Cold War and the dramatic expansion of democracy across the globe.  Yet with the perceived failure of governments, in new and established democracies, to manage the major cultural and economic stresses of the last decade, we were forced to confront challenges to the institutional infrastructure of democracy that had not been seen since World War II.  While Issacharoff’s Fragile Democracies still reflected a hopeful view that courts might be key actors in consolidating democracy in newer regimes, by the time of his Democracy Unmoored, the task had become analyzing how the new populist wave overrode institutional safeguards, including the collapse of the political parties – organizations that Politics as Markets had emphasized as the central vehicles for the structuring of politics.  In a related vein, in Political Fragmentation in Democracies of the West, Pildes emphasized that the collapse of the traditional parties had generated new, highly fragmented five or six party systems in the proportional representation democracies, making it all that much harder for democratic governments to function effectively.

Domestically, the challenges had shifted to the rise of hyperpolarization, a now toxic political culture, and the decline in the ability of the political system to deliver on major issues of the day.  In emphasizing a systemic perspective on doctrine and policy, Politics as Markets had stressed viewing these matters through the lens of how they affected the functioning of government.  Now, as Issacharoff observed in Democracy Unmoored, and Pildes pursued in articles such as The Neglected Value of Effective Government, a major threat to the democratic order came from the failure of state capacity – a failure that has triggered the rise of today’s profound challenges to democracy.  In response, we have turned to institutional-design reforms that would re-empower majorities to enable more effective government, as emphasized in our recent co-authored piece, Majoritarianism and Minoritarianism in the Law of Democracy. 

Having the occasion to look back 25 years later opens our own eyes to how much of our later work can be tied back to themes and concerns that were the engine driving Politics as MarketsThat’s not to say we self-consciously built upon those themes; it is more that our interests kept returning to similar questions even as contexts changed dramatically.  Nor is to say that all our work can be fit within the framework of concerns from that early piece; we’ve certainly written many other articles on unrelated themes.  But it’s gratifying to be asked to look back and excavate from earlier work ideas that still engage us today.

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Coming Next Week to ELB: Symposium on the 25th Anniversary of Issacharoff and Pildes, “Politics as Markets”

One of the most important theoretical contributions to election law in the past generation has been Sam Issacharoff and Rick Pildes’s article, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stanford Law Review 643 (1998). (The article was part of an election law symposium for the 50th anniversary of the Stanford Law Review; Nate Persily was President of SLR that year. I, as a new law professor, wrote this response to their article, Richard L. Hasen, The “Political Market” Metaphor and Election Law, 50 Stanford Law Review 719 (1998).)

Next week, to commemorate the 25th anniversary of the publication of Politics as Markets, we will have a special symposium assessing its significance and pondering its implications for the future. It will kick off next Monday with some introductory remarks from Sam and Rick P.

Below the fold you can find the abstract to Sam and Rick’s original paper, now posted for easy access on SSRN.

Continue reading Coming Next Week to ELB: Symposium on the 25th Anniversary of Issacharoff and Pildes, “Politics as Markets”
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