I’ve long thought of Politics as Markets as the most important contribution to election law in memory (noting that I’m using Politics as Markets as a metonym for the whole series of related articles by Rick and Sam). What made Politics as Markets so groundbreaking? At least three things. The first was Rick and Sam’s declaration of independence for election law. Mainstream constitutional law might continue to balance burdens on individual rights against countervailing state interests in areas like substantive due process, equal protection, and the First Amendment. But election law, said Rick and Sam, should be different. Election law should abandon rights-versus-interests balancing and replace it with a direct focus on how electoral regulations affect structural democratic values. This proposal raised the profile of election law. It could, and should, be its own intellectual domain, free of the doctrinal frameworks that govern constitutional law. The proposal also had immense appeal for scholars (like me) interested in how electoral rules affect values we care about. In Rick and Sam’s model, functional impact would be the touchstone of legal and policy analysis.

The intellectual arbitrage of Politics as Markets was also revelatory. Rick and Sam extensively cited the corporate law and antitrust literatures—not the usual reading lists of public law scholars. In these literatures they discerned a move from first-order to second-order regulation: ensuring that the marketplace as a whole is properly structured as opposed to policing individual firms or transactions. In a flash of insight, Rick and Sam realized that the same move could be made in election law (indeed, in all of public law). Electoral systems could also be structured to ensure their dynamism and resilience, in which case courts could step back from adjudicating disputes one by one. This application of private law ideas to public law contexts was exceptionally creative. It was also persuasive for those (again like me) with a preference for wholesale over retail electoral regulation.

Politics as Markets was pioneering, lastly, in its emphasis on a single democratic value: electoral competition. (Too) much work in this area observes that many democratic values exist, often pointing in different directions, and then demurs from reaching firm conclusions in the face of this multiplicity. In contrast, Rick and Sam bit the bullet and argued that competition should be the primary concern of scholars, judges, and policymakers. This argument was notable for its elegant simplicity, collapsing a welter of considerations to just one factor. It also strengthened the connection between election law and corporate and antitrust law, where (a different kind of) competition is the predominant objective. Competition is distinctive, too, as Rick and Sam pointed out, in that it’s attractive both intrinsically (for its own sake) and instrumentally (because it promotes the achievement of other democratic values, like responsiveness and accountability).

Of course, I have my quibbles with Politics as Markets. (What academic wouldn’t?) Its fixation with competition arguably reflects its era, when uncompetitive U.S. House races, in particular, were seen as a major national problem. Today, we face a host of democratic threats unrelated to lack of competition, like pervasive misinformation and a waning commitment (among some) to free and fair elections. I also wish that Rick and Sam had fleshed out their proposal in certain respects. For instance: How exactly should competition be measured? Should competition be conceived only as a sword (to attack anti-competitive practices) or also as a shield (to defend pro-competitive practices)? And what’s the empirical evidence that specific practices actually are anti- or pro-competitive? Most fundamentally, I diverge from Rick and Sam in the priority I place on competition. I certainly think it’s an important democratic value. But more vital still, I argue in several articles and a forthcoming book, is alignment between governmental outputs and popular preferences. A polity can still be democratic (I think) if its elections are uncompetitive but its government largely does what its people want. But if the link between public policy and public opinion is broken (in my view) so is democracy itself in any meaningful sense.

To be clear, these are cavils—not foundational disagreements—with Politics as Markets. In my alignment work, in particular, I endorse Rick and Sam’s move from rights-versus-interests balancing to structuralist, functionalist analysis. I also share their interest in competition, just as a driver of alignment rather than the ultimate desideratum for scholars, judges, and policymakers. Put differently, if Politics as Markets is now the central cleavage of election law, I know on what side of that divide I stand. It’s Rick and Sam’s side.