Yasmin Dawood: “Politics as Markets: Paradigms for the Law of Democracy”

The following is a post from Yasmin Dawood, part of the Politics as Markets at 25 symposium.

Politics as Markets: Partisan Lockups of the Democratic Process, by Samuel Issacharoff and Richard Pildes, is a landmark article in the law of democracy field. It has been a foundational text in various debates, and it continues to influence how we conceptualize crucial questions about elections, democracy, and the law. In this essay, I shall suggest that Politics as Markets has developed a number of conceptual themes and paradigms, and, in so doing, has generated and illuminated (at least) four categories of questions and issues that lie at the heart of the law of democracy field.

(1) Judicial Review: Structure vs Rights

Drawing on corporate law scholarship, Politics as Markets argues for a “shift from the conventional first-order focus on rights and equality to a second-order focus on the background markets for political control.” On this view, courts should examine the structure of the political market to ensure that it is sufficiently competitive instead of controlling politics through the enforcement of individual rights. Democratic politics is thus viewed as “akin in important respects to a robustly competitive market—a market whose vitality depends on both clear rules of engagement and on the ritual cleansing born of competition.” Under the political markets approach, the role of the courts is to strike down democratic ground rules that have been manipulated by partisan forces.

The “structure vs rights” paradigm has dominated a significant portion of the scholarly work on election law. Scholars have identified the advantages and disadvantages of a structural approach, focusing in particular on the role of the courts in a constitutional democracy. Those in favour of the individual rights approach have further elaborated the benefits of the conventional approach while sharpening their critique of the structural model. Others have argued that court decisions on election law rules feature both structural and rights-based reasoning; that is, structure and rights can be co-constitutive rather than oppositional. Yet another line of inquiry has extended the “structure vs rights” paradigm to democratic rights, arguing that such “structural rights” inevitably have both structural and individual elements.

(2) Partisan Self-Entrenchment and Competition

Another conceptual theme is partisan self-entrenchment—the idea that “existing holders of political power seek to perpetuate their political control, not by distributing benefits to their supporters, but by capturing the basic structures and ground rules of politics itself.” Politics as Markets examined such “political lockups” with respect to the White Primary Cases and the rules that disadvantage third parties. Political lockups take place when insiders use their control over the electoral machinery to “rais[e] the cost of entry into a political market that is already insufficiently competitive.” The article references Michael Klarman’s work on entrenchment, and develops the implications of partisan self-entrenchment for courts, arguing for “heightened review for those decisions that structure the rules of political engagement to the benefit of incumbent lawmakers.” The article also references John Hart Ely’s antitrust model of judicial review under which courts intervene to fix a systemic malfunction of the political market. In contrast to Ely’s focus on individual rights and minority group interests, Politics as Markets emphasized the broader structure of the political process and the need to preserve a “robustly competitive partisan environment.” 

The cure to partisan self-entrenchment is to promote competition by destabilizing the hold of insiders on the machinery of the state. Competition matters because it is only “through an appropriately competitive partisan environment … [that] one of the central goals of democratic politics [can] be realized: that the policy outcomes of the political process be responsive to the interests and views of citizens.” Thus, partisan competition is required to ensure democratic responsiveness.

These arguments have generated animated debates about whether or not courts should be engaging in structural interventions. Scholars have also questioned whether structural interventions by the courts would have any real impact on politics given the influence of larger political forces. For instance, FPTP elections tend to produce a two-party system, and so, the argument goes, eliminating barriers to the participation of third parties would not lead to a shift in the two-party structure. Despite these critiques, the concepts of partisan self-entrenchment, political lockups, and competition provide powerful paradigms for understanding a central threat that democracies face. Indeed, our current era of democratic decline and rising authoritarianism is characterized by the self-entrenchment of political insiders and the suppression of competition.  

(3) The State

A central conceptual theme of Politics as Markets is that “the state” is “always a constellation of currently existing political and partisan forces.” Professors Issacharoff and Pildes posit that the state “must not be viewed as an abstract, detached, or nonpartisan entity in most cases of political regulation.” They draw on the example of the White Primary Cases, arguing that since the Democratic Party had “a complete monopoly on politics” in Texas at the time, the actions by the state were “tantamount to the Democratic Party using state law to self-regulate.” Politics as Markets thus challenged the conventional account in both law and democratic theory which tended to treat the state as a neutral entity. To be sure, there are good arguments for why the state ought to behave in a nonpartisan manner when it comes to political regulation, but the recognition that the state is partisan serves as a crucial baseline assumption in much of election law scholarship.

(4) Political Parties

Politics as Markets also emphasized the fundamental role of political parties in a democracy, noting that “[p]olitics occurs through organization, and that organization turns out to be the political party.” Although Anthony Downs focused on political parties in his economic theory of democracy, later work by public choice theorists centered on the behaviour of individual legislators in response to re-election incentives. As such, Politics as Markets directed attention to the role of partisan, as opposed to personal, motivations in a representative democracy. It thus brought renewed attention to the theme of political parties, and the role of partisanship in a democracy more generally, within election law scholarship.

In sum, it is no exaggeration to say that Politics as Markets has developed conceptual themes and paradigms that have shaped the development of the law of democracy field. This article has sparked debate and contestation; generated new ideas and research; and contributed to the election law lexicon. Its influence has extended to the realm of comparative election law. Our collective scholarship will no doubt continue to benefit tremendously from the insights of Politics as Markets.

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