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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