(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 Markets. That’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.