by publius
The Almighty Nine opened shop today, hearing arguments on whether Washington’s open primary violated the First Amendment. The more cynical framing of the question is whether the First Amendment provides cartel-like protections to the major political parties. That, in turn, leads to the broader question of whether our current two-party structure is a good thing. On that last question, my views have evolved considerably since I first started blogging, thanks in no small part to Bush. Strangely enough, the modern GOP has restored my faith in the two-party system . . . I think.
But first, the case. The backdrop here is a case called Jones from 2000 that struck down California’s “blanket” primary. It was an open primary -- voters could vote for any candidate, and any candidate could align with any party. The catch though was that voters as a whole determined the party’s official nominee for the general election. For instance, the self-proclaimed Democrat with the most primary votes became the official Democratic candidate regardless of what the Party itself wanted. If Cocaine McPedophile declared himself a Democrat, then (in theory) Republicans could vote for him, placing him on the ballot for the fall. The Court found that this type of forced marriage violates political parties’ association rights. Fair enough.
Washington, however, had a different idea. It also proposed an open blanket primary, but allowed the “top two” candidates to move on (rather than the top vote-getter within each party). The catch here (again) was that any candidate could declare herself aligned with any party. The parties didn’t like that -- in this sort of pre-runoff primary, they wanted only their own preferred candidate to have the “D” or “R.” [See Rick Hasen for more.]
I certainly sympathize with the parties -- you don’t want loonies (or Mike Gravels as I call them) confusing voters. That said, I don’t see why the Constitution protects them here. It’s one thing to force a candidate on to the party like California did. It’s quite another thing to forbid candidates from declaring their own party preferences in a “top two wins” election.
The broader point is that this is simply one of the many structural legal protections that national parties currently enjoy. Whatever you think of Ralph Nader, he’s right that significant barriers to entry exist outside the two-party structure. In the Washington case, for instance, the First Amendment would protect the parties by allowing the institutional leadership to maintain more control of the nomination process. Without this protection, Lieberman and Schwarzenegger-type candidates (nominal Dems or Republicans with considerable cross-appeal) could win “the nomination” without institutional backing.
Whether that last scenario is good or bad is the million dollar question. In theory, open primaries create more “centrist” candidates. Rather than vying for the median party voter, candidates are vying for the median voter. Further, the less that “serious” candidates rely on the institutionalized party, the closer to the median they can be. The result would be people like the Governator and Lieberman.
Circa 2003, I thought this would be a good thing. I loathed the primary system because I thought it -- above all else -- was responsible for imposing intense polarization on a less-polarized populace. Frankly, I didn’t want to pick among candidates that were beholden to the median voter of their respective parties. Back then, during the height of my Iraq anger, I thought that “restoring the center” would lead to better policies, less insanity, etc.
The 2004 election changed all that. More than Iraq even, the 2004 election will forever be the formative event of my political life. To see Bush re-elected in spite of everything forced me to fundamentally reassess the American public. The problem wasn’t that the extremes controlled everything -- it went much deeper. The problem was with the American “center” itself. To me, it was hopelessly skewed. I realized that I fundamentally disagreed with “median America” on a host of critically-important issues.
So where did that leave me? It left me with the Democrats. Because my views are considerably different than the median American’s, I preferred a party whose candidates were forced to win the median Democratic vote. I wanted politicians that skewed away from the center. The Democratic Party provided the only realistic option.
The risk of course is that Republicans keep winning. In that case, rule by centrist Broders would be better than rule by the modern GOP (whose officials are beholden to the median Republican voter). The reward, though, is that if the Dems ever could obtain political power, then their policies would be considerably more progressive than the American center is (all to the good). For instance, President Hillary Clinton would be far more progressive than any president that an open primary would produce. She would also be more progressive than the median American voter because she has primary challenges to worry about.
And so that’s the question -- does the risk of Republican rule outweigh the benefits of Democratic rule? If so, then you might prefer to abolish primaries and self-consciously create a more centrist regime. If not, you might prefer to take the risk. Right now, the latter option is appealing. The combination of demographics (rising non-white population) coupled with Republican incompetence actually gives Democrats a decent chance at a (relatively) permanent majority in the years ahead.
I realize this is blatant results-oriented thinking. But it’s difficult to express how utterly and completely I have rejected – not so much conservative thought – but the modern institutional Republican Party.
As a foreigner two aspects of the US political system always struck me as completely bonkers:
* partisan voter registration: It's non of the government's business whether I lean red or blue. Just as my religion is none of its business.
* government involvement in primaries: Hey, parties are private entities and supposed to be independent of the government. They should make their own rules on how they select their candidate. Just as any corporation can create their own system of naming the CEO.
It's ok of the state helps to fund parties and thus whatever method of primaries they come up with. But to prescribe the candidate selection algorithm? Way off.
(Other countries have different inanities, e.g. in Austria the gov. tries to keep track of the religions affiliation of its citizens.)
Posted by: otmar | October 02, 2007 at 01:55 AM
Publius,
You discuss the problem in the terms of a two-party system and wonder whether the US would be better off with a one-party system. I think your problem lies in the polarization caused by a two-party system.
Consider multi-representative electoral districts: in such districts several parties could get representatives elected. The minority opinions could have a voice of their own. Of course, forming coalitions in such environments is difficult, but then again, your national parties are not parties in the European sense of the word. They are coalitions with very wide bases. The same trade-offs are made in the congress anyhow, only in a different framework.
Posted by: Lurker | October 02, 2007 at 02:43 AM
I honestly don't follow your logic, that a President Hillary would be more progressive than some other system's outcomes. Was Bill Clinton particularly progressive? It seemed like he spent most of his presidency trying to coopt moderate Republican positions, which I don't criticize him for. But scrapping welfare was not exactly the sine qua non of progressivism, then or now. Since we haven't had any Democratic presidents in the meantime, I'm just not sure what you're basing your conclusions on.
Posted by: Martin | October 02, 2007 at 03:05 AM
Parties used to be private associations, free to pick the nominees they offered up to the general electorate by any means they saw fit: picking names from a hat, auction to the highest bidder, pistols at dawn, etc. I want to go back to those good old days. You want a voice in picking the party's nominee? Join the party. What does joining the party mean? That's up to the party. My party would charge membership dues; we might even let you cast as many votes in our (entirely private) "primary" as you contribute dollars to the party. Alas, nothing creative is likely to happen as long as the government, currently controlled by the two major "parties", gets to make the rules on ballot access in the _general_ election.
On the "polarization" business: back in 2000, a lot of people thought the election was close for the same reason that a national coin-flipping contest would be close. That is, the conventional wisdom back then said the two parties' ideologies were barely distinguishable. Might as well flip a coin to pick who you vote for. By 2004, it was clear that the electorate was closely divided numerically, but widely divided ideologically. A wide ideological division is only a problem when you have a close numerical division. If 2008 turns out to be a Democratic landslide, there will suddenly be a lot less talk about "polarization", but it won't be because the ideological differences became smaller. It won't be because Rush Limbaugh became saner and less vituperative. It will be because a lot of people came to understand that his world-view is nuts. The way to reduce "polarization", as the word is used by the Broders of this world, is to sharpen the ideological divide between the parties, to the point where everyone trying to straddle the widening chasm is forced to jump to one side or the other. I am confident that most Americans will jump to the Democratic side. Alternatively, that the US, as we know it, is doomed.
-- TP
Posted by: Tony P. | October 02, 2007 at 03:13 AM
I live in Washington State and the problem I have with primary elections is that the state pays for them but the parties get to contest the rules for how they are held. The parties should have a convention or pay for their own primaries if they want them run a certain way. It's ridiculous to make independent taxpayers pick up part of the bill but have to "declare" as a member of a party to vote in a state financed election.
As far as the polarization issue goes, we apparently need quite a bit more polarization since currently only about 50-55% of eligible voters vote in presidential election years and only 35-40% vote in non-presidential elections. More polarization or a much worse economy are the only things I can think of that will increase this participation rate.
Posted by: HankP | October 02, 2007 at 04:16 AM
Here's the thing:
The parties have too much power. The congress was designed for a situation where legislators represented their constituents. Now, they are tightly controlled by the party. We can't pass card check legislation, or restore habeas corpus, or pass the Webb ammendment, or do any of these other things because we have divided the congress into two camps, instead of 452+100 individuals. Moreover, the Republicans won't break with Bush on virtually ANYTHING, much less hold him accountable-- even where they feel he's wrong-- because it would be bad for the party, and ergo bad for them.
I don't want to curtail the power of political parties out of some fetishization of the median voter-- I want to do it because they create powerful perverse incentives that corrupt the way our government functions.
Posted by: Anthony Damiani | October 02, 2007 at 06:54 AM
But open primaries don't curtail the power of parties. They just make personality even more important than positions on the issues.
The move from smoke-filled rooms to primaries was sound: to break the stranglehold of party elites, and let the rank and file have a real say. The move from closed to open doesn't have a similar benefit, of which I'm aware, but is instead faux populism.
Posted by: CharleyCarp | October 02, 2007 at 07:15 AM
"Frankly, I didn’t want to pick among candidates that were beholden to the median voter of their respective parties."
Publius, publius... If they only did that! The fact is that it is only in the case that there are exactly two candidates that the median voter gets to decide. If there are more, the one with the largest "core support" (people putting him first) wins.
Vote splitting isn't something just caused by Nader. If you have three equally strong liberal candidates, and one conservative, then the liberals have a huge problem. I could tell you many outrageous stories of this... like the time when an election committee for a bishop's election here tried to tilt the odds by nominating seven theological liberals - and ended up beating themselves when the conservatives found a loophole and nominated a single theological conservative.
But the really worrying thing is that the various factions are sure to know of this distortion. If they used electoral systems in the primaries which DID favour the median voter (they exist!), they would be much more likely to select a candidate who could win. Yet they don't change it.
The only conclusion I can draw from that is that not only is the US divided, both parties are extremely divided. They are so divided that they cling to the hope of their faction winning, even when it hurts their party's overall chances.
Posted by: Harald Korneliussen | October 02, 2007 at 08:59 AM
some good points - i realize this gets into some more complex poli sci questions. harald's point is a good one. but, even if a politician is initially elected in a multi-candidate race, they still feel the pull of the median voter GOING FORWARD (i.e., they have to assume that behavior might be punished by a two-person primary).
also, i'm not talking about banning primaries so much, just having open, runoff-creating primaries (would still avoid the smoke-filled rooms problem).
the big question (however inartfully stated) is whether we're better being limited to general election candidates that win in our current party-cartel-protected primaries. Yes, bill clinton did some bad things, and our current congress can't get much done. but my question is whether that would be better or worse in a system without the sort of primaries we have now (a world of Liebermans if you will). i'm not sure it will -- largely b/c i think the center of america doesn't care about torture, or card checks, etc.
Posted by: publius | October 02, 2007 at 10:23 AM
"It’s quite another thing to forbid candidates from declaring their own party preferences in a “top two wins” election."
Maybe I'm not understanding you here, but it doesn't seem like another thing at all. Association works both ways, groups choose who can be members and individuals choose if they want to be members of groups that will accept them. Attacking one side implicates association rights just as much as attacking the other side.
Posted by: Sebastian Holsclaw | October 02, 2007 at 11:53 AM
well, that's what the court likely thinks seb. that at least is the crux of it.
Posted by: publius | October 02, 2007 at 12:07 PM
Ok, but what I don't understand is what about the situation makes you think it is different. The courts will say what they say. I don't speak for them and neither do you. But you clearly think that the situations are different. Or maybe you don't and just think that the association right isn't worth protecting, or maybe something else. I'm just asking why you think that or if I'm misunderstanding the whole thing, what you think.
Posted by: Sebastian Holsclaw | October 02, 2007 at 12:21 PM
well, in Washington's case, they're limiting the individual. In california, they're limiting the party.
under the Washington rule (i read most of the transcript, but not the briefs), a candidate can say anything or nothing. if they so choose, they can identify with the Dems or the Greens or whatever.
so, here, the First Amendment would limit the individual's ability to advertise themselves. Washington would not, however, FORCE the institutional democratic party to accept as the nominee the "Dem" that got the most votes. it's just the top-two vote getters that move on.
California essentially forced a candidate down the party's throat. they're not limiting INDIVIDUALS so much as they're limiting PARTIES.
now, you may think that difference doesn't matter. roberts for instance compared it to a trademark violation. i don't really buy that though b/c i think people should have more freedom to sell themselves in a political process, than say car sales. but, it's not a crazy argument.
Posted by: publius | October 02, 2007 at 12:34 PM
Publius: now, you may think that difference doesn't matter. roberts for instance compared it to a trademark violation. i don't really buy that though b/c i think people should have more freedom to sell themselves in a political process
The proposal limits candidates to use only party labels from a list approved by the state. If this is really about freedom of state, why not let the candidates use any word or words they want to?
One suspects that the entire intent is to get the same effect as a blanket primary, which the SC has already ruled out, with just enough tweaking to get it past the court. If you thought blanket primaries were OK anyway I can see why you wouldn't care, but the SC justices are right to be suspicious of attempts to evade their rulings simply by renaming things (e.g. "party preference" rather than "part affiliation").
Posted by: eeyn524 | October 02, 2007 at 02:16 PM
fair point -- and they're clearly trying to get around the other one.
But again, I think it's a meaningful difference that CA FORCED the Dems to nominate someone chosen by everyone. In WA, they don't - it's the top two. Yes, that forces the Dems to associate with people they may not like, but that to me doesn't seem worthy of constitutional protection. remember too that this was a voter-approved process. if they don't like it, there's always a state legislative fix.
That's why i meandered into the larger question of whether parties should get legal protections.
Posted by: publius | October 02, 2007 at 02:49 PM
The main reason that US politics is dominated by two parties lies not in the primary process, but in the institutional rules for elections. The US has a first-past-the-pole, winner-take-all, single representative system. Those rules structurally push the system towards centrist positions. The play in the system revolves around determining the center of that system and capturing the minimum plurality of votes required to pass the pole.
The big two are wrangling over primary rules not because they will change the US model from a de facto two-party system, but in order to maintain their own status as one of the two centrist* parties. Even if one of them were to go away and several smaller parties were to fill the vacuum the system would push those smaller parties towards a centrist position until we ended up, on average, with two (different) centrist parties.
*in the sense that it is the current political center of US politics, which is itself somewhat to the right of the world political center and of the US political center of 30 years ago.
Posted by: nous | October 02, 2007 at 03:23 PM
Publius,
How the Washington primary system differ from that of Louisiana?
Posted by: Vadranor | October 02, 2007 at 11:30 PM
I don't see what the problem should be for Washington. Yes, it is an attempt to weaken state parties, but they could hold elections that are completely non-partisan, even if the people running are Democrats or Republicans or Greens or whatever else. Parties don't have the right to control politics. Are there any states with primaries that allow the party to stop a loon from running if the candidate meets the primary requirements?
Posted by: freelunch | October 03, 2007 at 09:03 AM
"I realized that I fundamentally disagreed with 'median America' on a host of critically-important issues."
You just realized that after November, 2004?
Huh. This is a question, not a criticism, but that seems to suggest that you were still very much in the process of formulating your basic political philosophy in that time period: is that an erroneous hypothesis?
One reason I ask is that there was never a time it wasn't utterly clear to me that I drastically disagreed with 'median America' on a host of critically-important issues; not at age 5, or 7, or 9, or 13, or later. (I did grow up during the civil rights era, the Vietnam War, and watching Richard Nixon twice win election, after all, not to mention the era of no gay rights whatever, the Rockefellar drug laws, the back-to-the-land movement, communes, etc., etc., etc.)
So I'm usually interested in how the views of others evolved.
I have a prejudice towards caucus-system states -- which is what Washington was when I lived there from 1978-1986 -- over primaries, myself.
Posted by: Gary Farber | October 03, 2007 at 01:06 PM
One other point about the Washington system: after the election, the candidate's declared party preference does NOT automatically make him a member of the party or of the party caucus in the legislature. The party has the option to decide whether to associate with the candidate or not. If Cocaine McPedophile wins as a "prefers Party X" candidate, Party X could refuse to let him in. Now, admittedly, the odds of a party turning down an elected official who wants to caucus with them are, shall we say, low. But the fact that their interests will always run in a particular direction does not infringe their associational rights.
More broadly, I agree with a lot of the people posting here: there is something very messed up about my tax money going to pay for other political parties to hold primary elections so they can decide which candidate to back in the general election. Parties are not part of the government, they're just the most influential interest groups.
Posted by: trilobite | October 04, 2007 at 12:48 PM