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.