Tabatha Abu El-Haj has posted this draft on SSRN. Here is the abstract:
This Article argues that the Supreme Court’s party jurisprudence is predicated on a set of theoretical assumptions that do not hold true in the real world of contemporary American politics. In this regard, the Supreme Court’s recent decisions denying certiorari in two cases implicating the rights of political parties — one involving a challenge to the federal ban on so-called soft money and the other involving a challenge to state mandated open primaries — provide a much needed opening to explore alternate paths to democratic responsiveness and to identify opportunities for First Amendment doctrine to increase rather than decrease the odds of responsive and responsible party government.
Without claiming that there are easy solutions to our democratic dysfunctions, and drawing on a substantial body of empirical literature, the Article maintains that an alternative path to democratic responsiveness emerges when one focuses on the associational qualities of partisan networks. Viewed as associations, the capacity of political parties to foster a functioning democracy depends less on their capacity to speak and the coherence of their platform and more on the depth and breadth of their political networks. This is because social connections turn out to be more central to political mobilization, organization, and information transmission than many, especially in law, appreciate. As such, strengthening and broadening social ties within partisan networks presents an alternative and, as yet underappreciated, path to responsive and responsible governance. Integrating these insights into existing First Amendment doctrine provides a new scale with which to weigh the burdens on a party’s First Amendment rights and a new ability to allocate First Amendment rights in such a way as to encourage political parties to attend to the concerns of their constituents and to govern in the public interest.