Michael S. Kang, The Hydraulics and Politics of Party Regulation, 91 Iowa L. Rev. 131 (2005).
Abstract: Swept up in the growing “constitutionalization” of the law of democracy, political parties today are centerpieces of American law and politics. However, even sophisticated courts and legal commentators adhere to a formalistic view of political parties as discrete, legally defined entities. The Article topples this conventional view of political parties. Drawing from recent research in political science, the Article presents a more realistic deconstruction of political parties and how they operate in American democracy. The Article argues that “parties” are merely a colloquial shorthand for bundles of political relationships, constituting fluid, informal arrangements that defy and transcend legal definition. The supralegal character of political parties complicates their legal regulation, as leaders within a party can bind together and modify these informal arrangements to avoid regulation as needed. However, even as party leaders cooperate when it suits them, they also compete among themselves for relative political influence. Party leaders, exploiting their access to state government, frequently turn to party regulation as a means of winning intra- and interparty disagreements by skewing the terms of political competition in their favor against rivals, both within and outside their party. A supralegal view of political parties recognizes that party regulation is more likely to advance these narrow political aims than the broader reform goals deployed to justify regulation. Rather than assuming case-by-case structural judgments about specific party regulations, courts should instead view party regulation cases presumptively as basic political disputes and reconceptualize their judicial mission as channeling these conflicts toward political, rather than legal, resolution. Judicial skepticism about party regulation, striking down regulation, best achieves these goals.
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