The following is a guest post from Yen-tu Su, part of the symposium on Politics as Markets at 25:

Politics as Markets has often been read as a structuralist manifesto for the then emerging field of the law of democracy. “In cases involving the regulation of politics,” Samuel Issacharoff and Richard Pildes emphatically argue that “courts should shift from conventional first-order focus on rights and equality to a second-order focus on the background markets in partisan control.” This paradigmatic assertion is so thought- provoking that a cottage industry has since emerged to debate whether and how judicial oversight of political regulation should and can be so retooled and transformed. 25 years after the publication of Politics as Markets, the individual-rights-versus-state-interests balancing remains the dominant approach in the world of comparative election law jurisprudence. But there has been, indeed, a profound change in the way we think and talk about “rights” and “state interests” in the democratic political processes: Thanks in no small part to the penetrating insights of Politics as Markets, now we are getting much better at telling whether the emperor is naked or clothed.  

Perhaps two recent cases concerning the phantom voter problem can help us understand and appreciate what the politics-as-markets prism enables us to see. As a common criterion for voter qualification, the residence requirement is primarily administered through an official registration system of some sort. However, in order to prevent or minimize a common electoral malpractice whereby a non-resident uses fictitious or fraudulent registration of residence to vote in a political community to which she does not belong, a legal safeguard that can be characterized as the phantom voter law must be in place to enforce the bona fide residence requirement for voting. Such voting rules aim at protecting electoral integrity and preserving, as noted by Justice Thurgood Marshall in Dunn v. Blumstein (1972), “the basic conception of a political community.” But surely, they can also be framed and understood in a more general sense—as part of the “background rules that structure partisan political competition.”   

Politics as Markets teaches us that ground rules of political competition are susceptible to anticompetitive partisan manipulation by those in power, and this is arguably what happened to the phantom voter law in Hungary. In 2021, the Fidesz-dominated Parliament amended the Citizens Register Act to the effect of opening the gate for “voter tourism,” for it essentially allows citizens to register and vote in any districts of their choosing without having to live in there actually. Clear-eyed observers of Hungarian politics like Kim Lane Scheppele have little trouble deciphering what Viktor Orbán’s Fidesz wanted from this new law: a gerrymandering-like opportunity for the ruling party to change voter composition to their electoral advantage. In 2022, however, the Hungarian Constitutional Court dismissed as meritless the constitutional challenge brought by MPs from the opposition. Reading this rubber-stamping decision, one cannot help but lament the partisan capture of a potential political trustbuster.

In Taiwan, phantom voting has been considered a criminal electoral offense since 2000, and the Criminal Code was amended in 2007 to specifically prohibit any citizen from defrauding the household/residence registration for electoral purpose and from voting subsequently. According to the census, more than 6 million people in Taiwan do not actually live in their registered residence. The most common cause is the failure to update household registration upon moving, and some people make false registration for reasons unrelated to elections. Against this backdrop, some 5 thousand plus people had been convicted of phantom voting (mostly in ground-level local elections) in the years 2000-2022. Several citizen petitions had been filed to the Taiwan Constitutional Court (TCC) since as early as 2009 to challenge the constitutionality of using criminal law to deter and punish phantom voters, but it was not until July 2023 that the TCC delivered its decision of the Phantom Voter Case.

Politics as Markets advices courts to construe the protection of individual rights from a structural perspective of how the democratic political process functions as a whole, and this is arguably how the TCC approached the question whether the criminal phantom voter law unconstitutionally infringes on the citizens’ right to vote. Construing the constitutional right to vote to include the freedom to join or leave a political community by choice, the TCC subjected the disputed Criminal Code provisions to a strict proportionality review. Ultimately, the TCC upheld all the laws but vacated a high court decision for applying too narrow a definition of bona fide residence in the context of voting. What drove the TCC to its conclusion was not only a compelling case for preserving and protecting democratic self-governance of a political community. The TCC also emphasized how phantom voting could lead to unfair distortion of electoral competition. The TCC did not cite Politics as Markets, but a strong case can be made that the TCC had heeded its advice and took political competition seriously.

Whether it is about detecting anticompetitive manipulation, or about channeling structural concerns of political competition into the rights discourse, Politics as Markets continues to shed light on how we approach issues of election law. If we have become better students of the law of democracy, we owe much to the inspiration and guidance of this masterpiece. Happy 25^th Anniversary to Politics as Markets.

Yen-tu Su is a research professor at Institutum Iurisprudentiae, Academia Sinica, Taiwan.  

(This post is co-authored with Sam Issacharoff)

Our thanks to Rick Hasen for organizing this symposium and for giving us the chance to revisit our work from 25 years ago.  Neither of us had read Politics as Markets in more than a decade and the passage of time generates not only nostalgia but a sense of wonderment that, early on in the development of the law of democracy, this article sought to push the field to focusing on the larger structure and organization of the democratic system when trying to understand discrete issues of doctrine, history, or policy.  Our organizing conceptual approach was to wrest from traditional, doctrinal-rights analysis a normative vision of the importance of political competition, and the threats to it, that law and policy had to engage.  

This shift to focusing on a more structural or systemic perspective operated at four levels: 1) at the level of doctrine, where we offered re-assessments of the validity of doctrinal approaches in canonical cases stretching from Burdick v. Takushi to Timmons v. Twin Cities Area New Party and on to Shaw and campaign finance; 2) at the level of history, where we showed that the underlying dynamics of political competition, not a culture of white supremacy alone, explained The White Primary cases and the history of disenfranchisement itself; (3) at the level of policy, where we urged greater attention to the importance of political competition, and to the risk of insider self-entrenchment; and 4) at the level of the institutional framework of democracy itself, where we raised issues of oppositional party rights, independent commissions, and the first-past-the-post system. Along all four dimensions, the article pursued these efforts by introducing to the analysis of doctrine, policy, and institutions frames of reference rooted in comparative law, private law, and public-choice infused economics. 

What is most gratifying, and surprising even to us, is to see how the themes for so much of each of our later work can be seen in this early article.  While some legal scholars focused entirely on the first, more doctrinal, level of the piece, we will focus here on the last three levels Politics as Markets engaged and how they run through much of our subsequent work. 

Our perspective applied not just in the context of the election process, but to the normative structure of government as a whole.  A completely unexpected application of those themes, for example, emerged in the wake of September 11^th.  In trying to make sense of how the legal system should respond, we noticed, in Between Civil Libertarianism and Executive Unilateralism, that the courts had generally avoided deciding these issues either in terms of inviolable individual rights or of unilateral executive power over national security.  Instead, the court had focused analysis on second-order structural or systemic inquiries into whether policies could claim the backing of institutional support from both Congress and the President.  In Separation of Parties, Not Powers, Pildes and Daryl Levinson argued that the Framers’ view of separation of powers and much doctrinal work in the area was outdated, due to the changing nature of political competition and the way partisan dynamics between Congress and the President best explained how the system had come to work (or fail).

Similarly, in The Hydraulics of Campaign Finance Reform, Issacharoff and Pam Karlan built on the more systemic approach to campaign finance issues that Politics as Markets had taken.  Bypassing doctrinal debates about rights of free expression versus the value of anti-corruption interests, they focused on the structural effects of the regulatory effort, arguing that it was doomed to fail because money would continue to flow, albeit through other channels, no matter what.  Again emphasizing the underlying dynamics of political competition behind legal and institutional issues, Pildes, in his work on Giles v. Harris and disenfranchisement, showed how factional political conflict within the white South drove the “Redemption” era.

Much of our later work remained within this same analytic framework, but in a dramatically chastened democratic world, both domestically and abroad.  Politics as Markets was written with the optimistic tone of an era one of us called “The Age of Democracy,” in The Constitutionalization of Democratic Politics – an era marked by the end of the Cold War and the dramatic expansion of democracy across the globe.  Yet with the perceived failure of governments, in new and established democracies, to manage the major cultural and economic stresses of the last decade, we were forced to confront challenges to the institutional infrastructure of democracy that had not been seen since World War II.  While Issacharoff’s Fragile Democracies still reflected a hopeful view that courts might be key actors in consolidating democracy in newer regimes, by the time of his Democracy Unmoored, the task had become analyzing how the new populist wave overrode institutional safeguards, including the collapse of the political parties – organizations that Politics as Markets had emphasized as the central vehicles for the structuring of politics.  In a related vein, in Political Fragmentation in Democracies of the West, Pildes emphasized that the collapse of the traditional parties had generated new, highly fragmented five or six party systems in the proportional representation democracies, making it all that much harder for democratic governments to function effectively.

Domestically, the challenges had shifted to the rise of hyperpolarization, a now toxic political culture, and the decline in the ability of the political system to deliver on major issues of the day.  In emphasizing a systemic perspective on doctrine and policy, Politics as Markets had stressed viewing these matters through the lens of how they affected the functioning of government.  Now, as Issacharoff observed in Democracy Unmoored, and Pildes pursued in articles such as The Neglected Value of Effective Government, a major threat to the democratic order came from the failure of state capacity – a failure that has triggered the rise of today’s profound challenges to democracy.  In response, we have turned to institutional-design reforms that would re-empower majorities to enable more effective government, as emphasized in our recent co-authored piece, Majoritarianism and Minoritarianism in the Law of Democracy. 

Having the occasion to look back 25 years later opens our own eyes to how much of our later work can be tied back to themes and concerns that were the engine driving Politics as Markets.  That’s not to say we self-consciously built upon those themes; it is more that our interests kept returning to similar questions even as contexts changed dramatically.  Nor is to say that all our work can be fit within the framework of concerns from that early piece; we’ve certainly written many other articles on unrelated themes.  But it’s gratifying to be asked to look back and excavate from earlier work ideas that still engage us today.