POLITICAL PARTIES

The United States Constitution is virtually silent on politics. It touches upon elections, but even here the subject is treated in a most gingerly fashion by delegating the power to set the "Times, Places and Manner of holding Elections for Senators and Representatives" to the legislature of each state. Even the qualification for voting in national elections was left to the states, by the provision that whoever was qualified to vote for members of the "most numerous branch of the State Legislature" could also vote for members of the house of representatives.

The Founders saw peril in politics. The Constitution was an effort to provide a solution to politics. To james madison in the federalist #10, one of the greatest virtues of the Constitution was that it provided an antidote to the "mischiefs of faction." Because attempting to prevent the emergence of faction would be a cure worse than the disease, the only alternative was to provide a system of federalism on a continental scale so that no faction or conspiracy among factions could reach majority size, thereby becoming a party. Representative government centered in a legislature became the superior form of government because the "temporary or partial considerations" of factions would be regulated by "passing them through the medium of a chosen body of citizens, whose wisdom … will be more consonant to the public good than if pronounced by the people themselves.…" george washington in his Farewell Address (the drafting of which was shared by Madison and alexander hamilton) warned of "the danger of parties in the State [founded on] geographical discriminations [and] against the baneful effects of the spirit of party generally."

The Constitution was designed also to solve the political problems inherent in the presidency. In effect, Article II provided for a two-tiered presidential selection: nomination by the electors and election by the House of Representatives. Under the original Article II the process began with selection of electors in a manner provided by each state legislature. In the first election under the Constitution, in 1788–1789, the electors were chosen by legislature in seven states and by voters in six. Next, electors were to meet in their state capitals, never nationally. There is no electoral college; that term is nowhere to be found in the Constitution or in The Federalist. At the prescribed meeting at the state capital each elector had the right and obligation to cast ballots for two persons—not two votes, but separate votes for two different people, one not from the same state as the elector. If a candidate received an absolute majority of all electoral votes, he was declared the President; the candidate with the second largest vote became vice-president. If no candidate received an absolute majority, the House of Representatives would choose from the top five names, with each state having one vote, regardless of the population of the state. If two candidates received an absolute majority in a tie vote (as happened between thomas jefferson and aaron burr in 1800), the House would choose between the top two.

This system was virtually designed to produce a parliamentary government—a strong executive elected by the lower house of the legislature. During the first two decades of the Republic, the primary functions of the national government were to implement the scheme of government contemplated by the Constitution, and that required one-time-only policies, such as the establishment of the major departments, the establishment of the judiciary, and the exercise of sovereignty as a nation-state among nation-states, manifest in various kinds of treaties. Policies had to be adopted to assume all the debts previously incurred by the continental congress and the national government under the articles of confederation; laws were also adopted to assume all the debts incurred during the war by the thirteen states. All these policies and many others emanated from the executive branch. Congress looked to President Washington for leadership and accepted Secretary of the Treasury Alexander Hamilton as Washington's representative. Although consensus around Washington was replaced with polarization, even before john adams became President, the Federalists carried the necessary majorities through legislative meetings (caucuses) led mainly by Hamilton. But at the same time, all the power to enact the policies—all the power "expressly delegated" to the national government by Article I, section 8—was lodged in Congress. Inevitably, politics came out as a modified parliamentarism, with a strong executive elected by the lower house.

These arrangements seem to have been intentional on the part of the Framers of the Constitution. Without a national meeting, and with each elector having to cast ballots for two separate persons, it was to be expected that several candidates for President would be identified. The concept of the "favorite son" actually goes back to George Washington himself, and the expectation that there would be a large number of favorite sons is strongly implied by the provision that in the event of no absolute majority the top five names would be submitted to the House. Surely this means that more than five meaningful candidates would normally be produced and that final election in the House would be the norm also. With this modified parliamentary system, the Constitution and politics became synonymous. The politics of the two to three decades of the founding period followed the lines prescribed by the Constitution—or, to put it another way, flowed fairly strictly within channels established by the Constitution.

This original system was transformed within a generation following the founding. At some point during the Jefferson administration, the regime of the founding was replaced by a regime of ordinary government. One-time-only policies were replaced by routine and repeatable policies, such as internal improvements, land grants, personal claims, tariffs, patents, surveys, and other services. This type of national government is precisely what was intended by Article I, section 8. The tenth amendment (1791) merely made more explicit what was already unmistakably clear in Article I, that the important powers of governing were to be reserved to the states. What was not intended, however, was that the political solution prevailing during the first generation would come unstuck. Political parties had already emerged despite Washington's warnings, and the discipline of their members virtually destroyed the so-called Electoral College by requiring that each elector be pledged to a presidential candidate "nominated" prior to their selection as electors. Political parties captured the nominating phase of presidential selection. For twenty years thereafter the method of nomination was by legislative caucus—derisively called King Caucus. As the two major parties spread their influence to districts where they had voters but no members of Congress, the party leaders had to work out a method of nomination more representative than King Caucus. That solution, the presidential nominating convention, was adopted in 1832 and remained the institution of party government until 1952.

The national party system was by this time no longer working within prescribed constitutional channels but had created some new channels for itself. More significantly, the party system in the 1820s and 1830s created a realm of politics independent of the Constitution.

In another sense, however, the Constitution was having the last word. First, Congress had become the central power of the national government. There was no longer any development toward parliamentary government but clearly toward congressional government, as woodrow wilson put it in his important text later in the nineteenth century. Second, the nominating convention, in providing the President with a popular base independent of Congress, produced the separation of powers that many feel the Constitution had intended—a system of coequal branches each with its own separate constituency.

Third, and most important, the functions of the national government had come more into proportion with the intent of Article I, section 8. That is to say, a politics independent of the Constitution came only at the expense of the kinds of functions the national government had been required to perform during the founding decades. In fact, the relationship ought to be put the other way around. The change of functions from the one-time-only policies of the founding to the ordinary policies of the rest of the nineteenth century had been responsible for the political changes, thus confirming a fundamental and well-nigh universal pattern: every regime tends to create a politics consonant with itself. Thus, when the regime (the Constitution and its government) of the founding shifted to a regime of policies arising literally under the provisions of Article I, section 8, politics changed accordingly. For more than a century after 1832 the national government was congressional government; the national politics during that epoch was a function of party government; and together, government and politics were consistent with, and reinforced, a strictly federal Constitution in which the national government had a highly limited and specialized role in the life of the country.

A third regime emerged out of the new deal, not from the increased size of the national government but from the addition to that government of significant new functions. The significant departure from tradition arose out of the enactment of a large number of policies that can be understood only as regulatory and redistributive policies. In effect, the national government acquired its own police powers and added its own regulatory and redistributive policies to those of the states. These additions—which were validated by the Supreme Court—brought on a third regime.

Congress did more than enact the new policies that gave the national government its new functions and its directly coercive relationship to citizens. Congress also literally created a new form of government by delegating powers to the executive branch. Each of the new regulatory policies adopted by Congress identified broadly the contours of a problem and then delegated to the executive virtually all the discretion necessary to formulate the actual rules to be imposed on citizens. Technically, this is called the delegation of power, and the rationalization was that Congress had indeed passed the law and left to administrative agencies the power only to "fill in the details." But in fact the executive branch filled in more than details. Just as Woodrow Wilson called the national government of the nineteenth century congressional government, we can with no greater distortion entitle the regime following the New Deal as presidential government.

National politics began to change accordingly. Signs of the weakening of party democracy were already fairly clear during the New Deal. President franklin d. roosevelt had tried to rebuild the Democratic party into a programmatic kind of presidential party. The most dramatic moment in that effort was the "purge of 1938," an unprecedented effort by a President to defeat or demote the opposition within his own party in order to make it into a modern instrument of program development and enactment. History records that Roosevelt failed, but the meaning of that failure was not lost on the Democrats or Republicans: the President can no longer depend on locally organized opportunistic parties and must develop his own, independent base of popular support. If this support could no longer be found through political parties, the President would have to do it directly, through the media of mass communication. The President's constituency became the public en masse.

The presidential conventions of 1952 were the last of the traditional conventions, where parties still controlled the nominations through the control that state party leaders had over the delegates. And if andrew jackson can be considered the revolutionary who gave birth to the national conventions, dwight d. eisenhower was a revolutionary who turned them into vestigial organs. As the 1952 Republican Convention approached, the Eisenhower forces had to confront the fact that robert a. taft was ahead. Their only available strategy was to question the credentials of several state delegations whose members, pledged to Taft, had been selected by the traditional method of virtual appointment by state leaders and were pledged to vote slavishly for the candidate designated by the state leadership. Failing to convince the credentials committee, the Eisenhower leaders took their objections to the convention floor in the form of a "fair play" motion. The debate took place over national television—despite Taft's objections—and the Eisenhower motion swayed enough neutral delegations to gain the majority vote and the momentum sufficient to win the nomination. More important than the immediate victory was the long-range result, which was to weaken the foundations of the traditional party system itself. Progressively from that time, delegates came to be treated as factors in their own right, as individuals to be courted rather than as pawns within a state delegation controlled by state party leaders.

Once the delegates became meaningful individuals, the process of selection had to be democratized. Just as the nominating convention once was a means of democratizing the legislative caucus, the primaries became the means of democratizing conventions. But the primaries are as much a reflection as a cause of the decline of party government, including the decline of party control of the presidential selection process. Party government was already seriously undermined before the spread of selection of pledged delegates by primary elections. The transformed convention was, then, a reflection of the broader process of the decline of state and national political parties. The presidential nomination was becoming an open process by which presidential candidates amassed individual delegates, who had little in common with each other or with the candidate to whom they were pledged. The popular base of the presidency became a mass base. It was no longer the outcome of a process by which state party leaders and their delegations formed coalitions around the candidate most likely to win the nomination and election for President.

Serious students of American political parties have been arguing for more than a decade over the political reforms of the 1960s and 1970s associated with the loosening of the national parties and the virtual displacement of the national conventions. Some argue that the decline of political parties and of the convention as the institution of party government was unintentionally caused by the reforms. Others argue that parties had already declined and that the decline of conventions as the real decision-making body was already happening; therefore, the reforms were more a reflection of the decline than a cause of it. Most significant, however, is the emergence of the new regime: a new form of politics consonant with the regime of regulation and redistribution, with its presidential government.

Many of the current disagreements continue because we are still in the midst of the transformation and the ultimate form has not yet fully emerged. Two distinct scenarios or models can be drawn from the prevailing political analyses. One is "dealignment," tending toward mass democracy—that is, a direct relationship between the President and the masses of people unmediated by any representative institution at all, whether party or legislature. The second scenario is an alignment or realignment model anticipating the restoration of the two major parties. Such a development could require the abolition of some reforms instituted in the 1960s and 1970s that radically unhinged certain features of the traditional party system, and adoption of new measures aimed at restoring the power of party bosses in the presidential nominating process.

The resolution is likely to be a fusion of the two models. The entire functioning of the national government has come to rest upon the President; the expectations of all Americans focus there, and the relationship between the President and the people will continue to be direct. This is the essence of mass politics. At the same time, however, there is strong evidence of a resurgence in the headquarters of the national political parties. Yet there is no place for these parties in the direct line of communication between the President and his mass base. Thus, if these parties are to survive and prosper at the national level they will have to find functions other than the traditional ones of intervening between the masses and the President by controlling the nominating process and political campaigns. The creation of such new functions would require the national leadership to organize from the bottom up, district by district, but in fact the national headquarters are organizing from the top down. They are developing their base in the electorate by collecting data for the computerized analysis of categories of voters. These techniques permit efficient mass mailings to solicit voters and, more important, sponsors who will make millions of donations in units of less than $50 apiece. These are not electoral parties in the traditional sense. Nor are they European-style "mass parties" or social democratic parties. They are what, for lack of an established word, can be called "taxation parties," whose main function is to defray the tremendous cost of the capital necessary to maintain the computers, collect the data, analyze the data, write the letters and stuff the envelopes, and design and communicate the spot announcements and other commercial messages on extremely expensive network television.

American national politics has been in a state of transition for a long time. Professional students of elections, polling, and political parties have all been expecting some kind of "realignment" at least since 1964. Major reforms of the parties and of elections have followed each presidential election since that time; their main result has been to prevent forever the outcome of the previous convention and election. Although the Democrats have been the major reformers, mainly because they have been the major losers in national elections, the Republicans have followed them in these reforms almost immediately. The national political process has not yet adjusted effectively to the regime of regulation and redistribution. In other words, although politics ultimately takes some form consonant with the regime, there is no guaranteeing that the adjustments will be successful and stable.

This fact points to the most important contrast between the present regime and the two previous ones: National politics is flowing through channels increasingly independent of the Constitution; that is, efforts to restore party government have been oblivious to the historic relationship between the Constitution and politics.

This is not to suggest that politics is operating unconstitutionally or outside the spirit of Supreme Court decisions. It means only that efforts to restore the parties, and to reform nominations and elections accordingly, have concentrated on the flow itself rather than on the constitutional structure that ultimately determines the flow. Having recognized the many problems with American politics since the New Deal, reformers have attempted to change the politics. They have persisted in this approach even while recognizing two grievous perils in it. First, because some interests inevitably gain or lose from any political reform, there is always a suspicion that these gains were known and sought in advance. The legitimacy of the system can be badly hurt by the more generalized suspicion that the established electoral process is being manipulated. Second, some reform efforts have come close to violating the first amendment, and in fact the Supreme Court declared such a violation in buckley v. valeo (1976), striking down a law attempting to set limits on the amounts individuals could spend in campaigns. That case is definitely not the end of litigation involving First Amendment rights involved in political reforms. (See political parties and the supreme court.)

Politics can be understood as the never-ending process of adjusting to a given structure of government, or regime, by seeking sufficient power and consensus to change the structure or influence its direction. If a change in the conduct of politics is sought, the appropriate route is the exercise of the historic right to change the Constitution and the structure of government. The forms of politics would change accordingly. We have constitutional rights to change our government. As Madison argued in The Federalist #10, the attempt to regulate politics is a cure worse than the disease. If there are problems with American national politics—and there appears to be wide agreement on this proposition throughout the political spectrum—then the time may have come to reexamine the structure of government, including the Constitution itself. An extensive revision of the Constitution is neither necessary nor appropriate. The last major constitutional change was triggered by the New Deal, without a single constitutional amendment. Once we recognize that politics is most stable and most respected when it is consonant with constitutional forms, reformers might be convinced to focus at least some of their energies away from political reform and toward constitutional reform.

Theodore J. Lowi
(1986)

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