The following is a post from Michael Pal, part of the Politics as Markets symposium:

It’s a real pleasure to write a few words to honour “Politics as Markets” and all that it accomplished. For many of us outside the United States preoccupied with the law of democracy, “Politics as Markets” was the academic work around which we oriented ourselves in the 2000’s and beyond. It opened a door that took many of us past the stale debates in our jurisdictions around the relationship between law and democracy that were going on at the time.

In Canada, the article and the scholarly responses to it played a key role in inspiring the small number of us writing about election law to take seriously the issue of partisan manipulation of the democratic process. The field of the law of democracy/election law in Canada was mostly non-existent at the time. It largely grew out of engagement with that specific issue of partisan manipulation. We tried collectively to put the failings of Canadian democracy at the top of the agenda of constitutional scholars in the way that equality rights, proportionality analysis, and different forms of judicial review were. “Politics as Markets” and the debates around it were an undeniably important part of the story.

To take an example, the leading case from the Supreme Court of Canada on redistricting at the time “Politics as Markets” was published was the Reference re Provincial Electoral Boundaries (Saskatchewan), 1991 2 SCR 158. A scandal-plagued provincial government had blatantly gerrymandered the electoral map to help its chances of being re-elected. The three opinions from the Justices of the Supreme Court of Canada take different views on the constitutionality of the map. But none of the opinions took seriously the fact of gerrymandering. The partisan dimension was entirely ignored or wished away. “Politics as Markets” showed us a way to integrate the reality of partisan manipulation of election law into our understanding of the case and the others like it on campaign finance law, political party regulation, and so on.  

Amidst the current, widespread acknowledgment of democracy’s uncertain health and future, it’s easy to lose sight of just how eye-opening “Politics as Markets” was at the time. Many of us working outside the United States saw in “Politics as Markets” and Sam and Rick’s subsequent work the animating assumption that democracy was an incomplete project. In their work we had a powerful ally in making the point that democracy was more fragile than it appeared. This point wasn’t always a popular one to make during a period of triumphalism about democracy’s future in many countries in the following the article’s publication in 1998. The underlying view expressed in “Politics as Markets” about the vulnerability of the democratic project even in long-standing democracies has of course proven prophetic.

Re-reading the article now it strikes me just how many different paths it laid out. The road not taken in Canada at least was the use of private law doctrine to reshape public law. The language of “lockups” stayed but the invitation to look at anti-trust/competition law or other areas of private law to re-interpret constitutional principles didn’t find many takers. I think that holds true as well in the comparative scholarship on political process theory that looks first to Ely and then to Issacharoff and Pildes.

“Politics as Markets” had extensive appeal outside of the U.S. and continues to resonate today. The article helped the law of democracy grow as a field in Canada and shaped its trajectory. Most importantly, the great gift of “Politics as Markets” was to show us a deeper way of integrating law and politics into our scholarship.