Wednesday, September 16, 2015

Citizens United and the Future of the American Political Party

Joseph Fishkin

Heather Gerken

The Brennan Center has just released a new report on the future of campaign finance. There are going to be a lot of reports like these during the next few years as the reform community wrestles with the legacy of Citizens United and tries to identify the path forward. We’ll be lucky if most of these reports are as pragmatic and intellectually serious as this one. (In the interest of full disclosure, we should note that we were both consulted during the process of writing the report). It’s worth highlighting several key moves that the report makes.

First, the report centers on the important role the political parties play in our democracy.This focus is itself good evidence of the pragmatism of the authors, Ian Vandewalker and Daniel Weiner. The political parties have long been targets of reformers’ ire and have largely been treated as agents of corruption (and obstacles to reform). But as the Brennan report recognizes, the political parties are essential to the long-term health of our democracy, and they have changed fundamentally and dramatically in ways that ought to concern us.

In focusing on political parties, the authors don’t make the mistake of equating the official parties (the GOP and the Democratic Party) with “the” party. As we’ve written elsewhere, these days “the party today is best understood as a loose coalition of diverse entities, some official and some not, organized around a popular national brand. The official party organization is part of it, but so too are independent entities—not just shadow parties, but groups likes the NRA, the teachers’ unions, and the Heritage Foundation. Officeholders are also part of this coalition, as are donors and activists. All are part of the party writ large.” That move allows the authors to track what we’ve described as the strange, seemingly contradictory status of the political parties right now. High levels of polarization and partisanship have made the parties writ large quite strong. But the official parties are weakening as they lose money, talent, and power to what we’ve called the “shadow parties.”

The Brennan report insists – again, rightly in our view – that political participation matters, and that one of the important costs associated with the decline of the official parties is that we are losing crucial sites for democratic participation and pluralist politics. Relative to the shadow parties, the official parties have many points of entry; they are more porous and more open to average voters. The shadow parties, in contrast, are designed to answer to their funders and their funders alone. As money and power shift from the official parties to the shadow parties, opportunities for participation and pluralism decline. This shift is one of the most important things happening right now in the American political system; we think the Brennan report is right to highlight it and to focus on these consequences.

While we thought that many of the proposals the Brennan Center put forward were well worth considering, we particularly welcomed the authors’ attention to the unintended consequences of one reform proposal that is popular these days: leveling the playing field between the shadow parties and the official parties by allowing the latter to raise large sums of money in the same fashion the shadow parties do. We understand the impulse behind this proposal. But the authors rightly worry that changing how the official parties are funded might also change how they are structured. We must be attentive to the risk is that the official parties won’t be the same official parties that play such a welcome role in our system but will instead look more like the shadow parties than we intend. In other words, if we allow the official parties to be funded exactly the way the shadow parties are funded, will they soon also be run the way the shadow parties are run? There’s no way to know in advance, but there are plenty of reasons why we might not want to find out.

Cross-posted on the Election Law Blog

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