Vol. 24 No. 10 (October 2014) pp. 518-523THE PARTIES IN COURT: AMERICAN POLITICAL PARTIES UNDER THE CONSTITUTION by Robert C. Wigton. Lanham, MD: Lexington Books. 2013. 392pp. $120.00. ISBN: 978-0-7391-8967-2.
Reviewed by Graham G. Dodds, Department of Political Science, Concordia University (Montreal), g.dodds@concordia.ca.
When even casual observers of American politics are familiar with CITIZENS UNITED, a new tome on how the judiciary has addressed legislative regulation of political parties is likely to be a welcome resource. In THE PARTIES IN COURT, Robert Wigton considers the vague constitutional status of American political parties and maps out how courts have judged their regulation. As every student of American politics well knows, even though political parties are not provided for in the Constitution and the Founding Fathers feared them, parties have long been a central part of American politics and government. How they’ve been regulated is thus an important political, legal, and constitutional matter.
In Wigton’s telling, the legislative regulation of U.S. political parties initially involved Progressive-era anti-corruption reforms like the Australian or secret ballot and direct primaries, but it expanded considerably from the mid-twentieth-century onward. According to Wigton, “The tide of history in this country has clearly favored increasing government regulation of party activities” (p. 33), such that “modern American political parties are generally regulated more heavily and in more detail than parties in most other Western nations” (p. 37).
In addition to the issue of the degree of the regulation of parties, there is also the matter of its locus. And as Wigton notes, while Congress has on occasion passed laws to govern political parties in some fashion, most of the legislative regulation of political parties in the U.S. has occurred at the state level. The development of laws governing parties is therefore important for considerations of federalism, but it is also important for inter-branch relations, as Wigton explains:
State legislatures have been the primary engines for imposing regulations on political parties. But their overt partisanship makes them unlikely places for developing a balanced and comprehensive approach to the role of parties in our governmental system. The task of making progress in this area has thus by default fallen to the judiciary which, though hardly nonpartisan, is generally able to take a longer and more objective view of such matters (p. 344).
The judiciary has endeavored to sort out a host of issues relating to the regulation of political parties. In many cases, this has entailed trying to make a judgment about the extent to which parties are private organizations and therefore entitled to substantial autonomy or governmental deference and the extent to which their activities have a public impact sufficient to warrant greater governmental intervention. Wigton contends that “Since the late nineteenth-century American political [*519] parties have been gradually converted from primarily private associations into quasi-public entities akin to public utilities” (p. 37).
Beyond questions of state action, Wigton notes that other constitutional principles that have often come up in litigation about parties include the political question doctrine, freedom of association, the Fourteenth Amendment’s equal protection clause and the nationalization of the Bill of Rights, and the right to political participation (per the Fifteenth Amendment). Regardless of the particular constitutional questions that come up, Wigton says that the judicial treatment of these matters suggests that judges are quite divided about the value of political parties. As Wigton writes, “On the one hand are those judges who regard political parties as ‘facilitators of democracy,’ relying on their roles as aggregators of political majorities in both elections and government. The opposing camp of judges … tends to see parties as corruptors of the political process and government” (p. 341).
In what might be regarded as the book’s primary thesis, Wigton says, “Our objective will be to determine how far the courts have progressed in reconciling the independence of the political parties with ideals of democratic selection” (p. 49). In his discussion of all these matters, Wigton covers over 500 court cases, some of which involve multiple substantive and jurisprudential points. To organize this mass of information, the book utilizes a version of the well-known tripartite division of parties’ activities first articulated by V. O. Key and Frank J. Sorauf, with separate chapters on parties’ internal activities, parties in the electoral process, and parties in government.
Parties’ Internal Activities
The regulation of parties’ internal activities includes things like how parties are officially recognized (which is often a matter of what percent of the vote a party must receive in order to appear on future ballots), the sections or committees into which parties are organized and how their personnel obtain their positions, and how official nominees and delegates to national conventions are selected. Obviously those things are at the heart of how parties operate, so “State laws which seek to place limitations on how political parties organize and govern themselves internally are the most serious threat to party independence” (p. 72). However, says Wigton, “as parties increasingly enter the public arena through performance of more electoral activities they should expect to be subjected to greater governmental supervision” (p. 73), and legislatures have indeed imposed various regulations on them.
Wigton’s discussion of cases that have concerned the regulation of parties’ internal activities focuses on several main areas. First, there is the issue of intra-party elections, with cases such as LYNCH V. TORQUATO (1965). Second, starting in the 1970s, Wigton sees a shift to cases that involved the First Amendment and free association questions, like MARCHIORO V. CHANEY (1979), ANDERSON V. CELEBREZZE (1983), TASHJIAN V. REPUBLICAN PARTY OF CONNECTICUT (1986), and EU V. SAN FRANCISCO COUNTY DEMOCRATIC CENTRAL COMMITTEE (1989). Third, there is the issue of the selection of presidential convention delegates, as addressed in cases like O’BRIEN V. BROWN (1972), COUSINS V. WIGODA (1975) and DEMOCRATIC PARTY V. [*520] WISCONSIN EX REL. LA FOLLETTE (1981).
Seeking to discern a general trend in cases about parties’ internal activities, Wigton notes that courts have struggled to draw a line between party activities that should be subject to state regulation “and those that should be largely free of such regulation” (p. 117). Beyond noting that difficulty, Wigton says that courts appear to be willing to grant parties greater freedom concerning their internal organization, while being more sympathetic to regulations that more directly relate to the nomination process. Also, he says that “Generally, the federal courts have been much more deferential to the independence and autonomy of the national party organizations than they have been to the state party organizations” (p. 113).
Parties In The Electoral Process
In terms of the regulation of political parties in the electoral process, there are laws that concern campaign finance, the disclosure of sponsors of political advertising, ballot access, and primary elections. And as with the regulation of parties’ internal activities, the regulation of their electoral activity is mostly at the state level. According to Wigton, “The only significant federal legislation here is the Federal Election Campaign Act (FECA)” of 1971 (pp. 133-4).
Nevertheless, there is a significant history of major federal cases dealing with the regulation of parties and campaign financing, and Wigton traces that development from BUCKLEY V. VALEO (1974) to FEC V. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE (1993 and 2000), MCCONNELL V. FEC (2003), and CITIZENS UNITED V. FEC (2010). Wigton’s book was published a few months before the Supreme Court decided MCCUTCHEON V. FEC (2014), striking down aggregate limits on how much an individual could give to political parties during a two-year election cycle.
In terms of state-level campaign finance regulation, Wigton discusses NIXON V. SHRINK MISSOURI GOVERNMENT PAC (2000), which he regards as the Court’s “most important modern ruling dealing with state campaign laws” (p. 172). The Court’s decision barely mentioned political parties per se, but it granted states significant leeway in regulating campaign finance, and “Most lower court decisions since Shrink Missouri have upheld state efforts to regulate the financial side of their electoral processes” (p. 174).
Beyond campaign finance, Wigton’s discussion of parties’ electoral activities includes cases that concern anti-fusion laws, elections in which the ballot includes a candidate’s name but not his or her party affiliation, “blanket” or “jungle” primaries that combine candidates of different parties, and whether primaries are open or closed. He also considers the judicial treatment of third parties, with a discussion of TIMMONS V. TWIN CITIES AREA NEW PARTY (1997), in which the Court seemed divided about whether a state interest in stability could justify a substantial burden on third parties.
Parties In Government
Wigton’s chapter on the regulation of parties in government (which he terms [*521] “incumbent political parties”) addresses two main issues: political patronage and partisan gerrymandering. While political patronage is “one of the most venerable traditions in America” (p. 258), Wigton contends that “The Supreme Court did not directly deal with the many issues raised by political patronage until 1976” (p. 262). That year, in ELROD V. BURNS, the Court sought to distinguish between public employees who were in “policy-making positions” and those who were not, and it said that the former could be subject to patronage reprisals while the latter could not (p. 364). The case is also noteworthy for Justice Powell’s dissent, in which he extolled the value of patronage. In RUTAN V. REPUBLICAN PARTY OF ILLINOIS (1990), the Court took up the issue of what sorts of government actions could trigger the protections that ELROD afforded some governmental employees, and in that case Justice Scalia’s dissent sought to validate patronage as important to the strength of political parties. According to Wigton, “In recent years, the circuit courts generally seem to have been intent on preserving, or even expanding, the class of high-level public employees who remain subject to patronage hiring and firing” (pp. 281-2).
Wigton says that “the courts’ willingness to rein in political patronage” stands in sharp contrast to “the general reluctance of the courts to employ judicial power to combat partisan gerrymandering” (p. 303). He claims that “There has been virtually no congressional interest in regulating state and local electoral redistricting” (p. 287), and while courts have often struck down racial gerrymanders, they have been much more permissive regarding partisan gerrymanders, “Despite the similarities between the two types of gerrymandering” (p. 311). Wigton discusses cases like DAVIS V. BANDEMER (1986), VIETH V. JUBELIRER (2004), and L.U.L.A.C. V. PERRY (2006) and says the Court is divided about whether partisan gerrymandering “should be analyzed under First Amendment principles or under equal protection” (p. 349). He concludes that “The judiciary’s handling of partisan gerrymandering … has not progressed much beyond a thorough exposition of the issues and choices involved” (p. 314).
THE PARTIES IN COURT is well researched and very well documented: each of the substantive chapters is followed by hundreds of detailed endnotes spread over 18-24 pages. It is also well written and easy to read (if a bit dry), though there are more than a few typographical errors. The book’s structure and its clear divisions within each chapter render it easy to follow, and it does a very good job of covering a lot of material; it is both comprehensive and comprehensible.
The book’s main scholarly contribution is as an informational resource, and it may serve as an authoritative reference. But its more interesting parts are the few areas in which Wigton presents his own views. Wigton wishes to employ the tripartite model of political parties not just to disentangle judicial decisions about their regulation (i.e., the organizational scheme of the book), but also to govern how courts should approach their decision-making. As Wigton explains, “My objective is to develop guidelines that preserve the ‘desirable’ activities and contributions of parties while simultaneously curbing some of the problems and ‘abuses’ that political parties can bring to government and elections” (pp. 342-3).
That objective sounds perfectly even-handed, but for Wigton it is explicitly predicated on a view that parties are both central and essential to the well-functioning of the American political and governmental systems: “political parties are the keystone of the political system and their proper functioning is a vital element in the success of representative government” (p. 343). Obviously, placing such a high value on political parties leads to great suspicion of their regulation. As Wigton puts it, “Given their vital role in American politics, parties appear to be deserving of considerable freedom from governmental control” (p. 33). He further contends, “What appears to be needed at this time is for the courts to create and enforce a bright-line boundary protecting the core activities of parties from further erosion by government regulation” (p. 345).
Wigton suggests that some aspects of parties merit more regulation while others deserve less, as the tripartite model suggests that regulation of parties’ internal functions and their activities in government “is relatively easy” (p. 351). However, “In the electoral arena parties’ roles are more mixed and the costs and benefits far less certain” (p. 351), which is why “The regulation of political parties in the electoral realm has always posed the most difficult questions” (p. 349).
In terms of parties’ electoral activities, Wigton suggests that regulation should be lighter for primaries than in the general election (pp. 219-220). And he also sees a need for less regulation in the two areas in which he says party regulation is more straightforward, as he wants less regulation of parties in government (p. 315), and he says the “historic erosion of the private side of political parties now imperils the benefits associated with independent, autonomous, and vigorous political parties” (p. 71).
Different readers, like different legislators and different judges, may come to different conclusions, but Wigton’s book should be appreciated by a broad audience. THE PARTIES IN COURT will be of particular interest to scholars of political parties and election laws, and it is suitable for graduate or advanced undergraduate students.
REFERENCES:
Key, V. O. 1964. POLITICS, PARTIES, AND PRESSURE GROUPS. New York: Crowell,.
Sorauf, Frank J. 1968. PARTY POLITICS IN AMERICA. Little Brown..
CASE REFERENCES:
ANDERSON V. CELEBREZZE, 460 U.S. 780 (1983).
BUCKLEY V. VALEO, 424 U.S. 1 (1976).
BAKER V. CARR, 369 U.S. 186 (1962).
CITIZENS UNITED V. FEDERAL CAMPAIGN COMMITTEE, 558 U.S. 310 (2010).
COUSINS V. WIGODA, 419 U.S. 477 (1975).
DAVIS V. BANDEMER, 478 U.S. 109 (1986).
DEMOCRATIC PARTY V. WISCONSIN EX REL. LA FOLLETTE, 450 U.S. 107 (1981). [*523]
ELROD V. BURNS, 427 U.S. 347 (1976).
EU V. SAN FRANCISCO COUNTY DEMOCRATIC CENTRAL COMMITTEE, 489 U.S. 214 (1989).
FEDERAL ELECTION COMMISSION V. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, 839 F. Supp. 1448 (D. Colo. 1993).
FEDERAL ELECTION COMMISSION V. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE, 213 F3d 1221 (10th Cir. 2000).
LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) V. PERRY, 548 U.S. 399 (2006).
LYNCH V. TORQUATO, 343 F. 2d 370 (3rd Cir. 1965).
MARCHIORO V. CHANEY, 442 U.S. 191 (1979).
MCCONNELL V. FEDERAL ELECTION COMMISSION, 540 U.S. 93 (2003).
MCCUTCHEON V. FEDERAL ELECTION COMMISSION, 134 S. Ct. 1434 (2014).
NIXON V. SHRINK MISSOURI GOVERNMENT PAC, 528 U.S. 377 (2000).
O’BRIEN V. BROWN, 409 U.S. 1 (1972).
RUTAN V. REPUBLICAN PARTY OF ILLINOIS, 497 U.S. 62 (1990).
TASHJIAN V. REPUBLICAN PARTY OF CONNECTICUT, 479 U.S. 208 (1986).
TIMMONS V. TWIN CITIES AREA NEW PARTY, 520 U.S. 351 (1997).
VIETH V. JUBELIRER, 541 U.S. 267 (2004).
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©Copyright by author, Graham G. Dodds.
