Politics As Markets: Partisan Lockups of the Democratic Process

• Published in: Stanford law review 1998-02, Vol.50 (3), p.643-717
• Main Authors: Issacharoff, Samuel, Pildes, Richard H.
• Format: Article
• Language: English
• Subjects: Analysis; Ballots; Beliefs, opinions and attitudes; Constitutional law; Democracy; Efficient market theory; Election laws; Elections; Evaluation; Law; Market; Partisan; Plurality voting; Political candidates; Political elections; Political parties; Political partisanship; Political regulation; Politics; Social choice; State regulation; Symposium: Law and the Political Process; United States; Voting; Voting rights
• ISSN: 0038-9765; 1939-8581
• DOI: 10.2307/1229320

This article critiques the prevailing constitutional doctrine applied in cases of state regulation of democratic politics. Instead of the conventional individual rights versus state interests approach, Professors Issacharoff and Pildes construct a less formulaic and more functional theoretical framework by borrowing from the last generation of academic thought in private law. In particular, corporate-law scholarship has increasingly shifted from a focus on specifying first-order fiduciary duties to emphasizing second-order considerations involving proper construction of the background "market for corporate control." This article seeks a similar transformation in public-law thought. It argues for a shift away from the conventional first-order focus on defining rights and equality and toward an emphasis on the proper construction of background "markets for partisan control" in the arena of democratic politics. Oftentimes, state regulations that purportedly reflect state interests in "stability" or the "avoidance of factionalism" can be seen as tools by which existing parties seek to raise the cost of defection and entrench existing partisan forces more deeply into office. When, but only when, political arrangements work in this way, this article suggests that courts or other institutions should play the role of destabilizing these arrangements and restoring a more competitive partisan political environment. The article offers comparative perspectives from German constitutional law and revisits questions involving the original constitutional conception of democracy in its efforts to move legal assessments of politics toward ensuring robustly competitive partisan political environments that avoid insider lockups of democratic politics.