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.
This article critiques the prevailing constitutional doctrine applied in cases of state regulation of democratic politics. Instead of the conventional individual rights versus state interests approach, Professors Issacharoff and Pildes construct a less formulaic and more functional theoretical framework by borrowing from the last generation of academic thought in private law. In particular, corporate- law scholarship has increasingly shifted from a focus on specifying first order fiduciary duties to emphasizing second-order considerations involving proper construction of the background “market for corporate control.” This article seeks a similar transformation in public-law thought. It argues for a shift away from the conventional first-order focus on defining rights and equality and toward an emphasis on the proper construction of background “markets for partisan control” in the arena of democratic politics. Oftentimes, state regulations that purportedly reflect state interests in “stability” or the “avoidance of factionalism” can be seen as tools by which existing parties seek to raise the cost of defection and entrench existing partisan forces more deeply into office. When, but only when, political arrangements work in this way, this article suggests that courts or other institutions should play the role of destabilizing these arrangements and restoring a more competitive partisan political environment. The article offers comparative perspectives from German constitutional law and revisits questions involving the original constitutional conception of democracy in its efforts to move legal assessments of politics toward ensuring robustly competitive partisan political environments that avoid insider lockups of democratic politics.