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.