Political Parties (Update)

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The judiciary has struggled to build a coherent jurisprudential approach to the constitutional handling of political parties. The difficulty of this task is due in large part to the absence of parties from the text of the Constitution itself. The Framers were indifferent, if not outright hostile, to political parties and made no provision for them in the constitutional scheme.

Indeed, the very structure of the Constitution makes it difficult for parties to flourish. The dispersal of power among branches and levels of government, the system of checks and balances, the delegation of a large measure of the definition of party authority to state law, all combine to create a constitutional environment inhospitable to parties. Parties and the party system are always in some tension with the Constitution.

yet first amendment protections of freedom of speech and the freedom of association have been extended to include political parties. The Supreme Court has considered the constitutional status of parties in a variety of contexts, from the propriety of party patronage practices to the parties' role in ballot access. In the process, the Court has been influential in determining how parties function. Yet, the parties' extraconstitutional nature has prevented the Court from treating them in a consistent or theoretically sound manner. The Court appears to lack a clear normative understanding of parties; it has often been indifferent to them as tools of representative democracy.

Constitutional disputes implicating political parties continue to find their way to the court. In Colorado Republican Federal Campaign Committee v. FEC (1996), the rehnquist court rendered a relatively party-friendly decision in the realm of campaign finance. Building on the leading decision of buckley v. valeo (1976), the Court determined that party spending independent of a specific candidate's campaign was constitutionally protected and not subject to statutory limits. The consequences of the decision demonstrate in dramatic fashion the practical impact of the Court on the electoral process. The national parties responded by spending unprecedented amounts of so-called soft money—that is, money contributed to the parties rather than to specific candidates—bolstering financial support for candidates on all levels. The decision may, in the end, yield more integrated and cohesive parties. At the same time, recent developments have intensified the demands for reform of an electoral system considered already too expensive. Interestingly, four of the nine Justices in the case were prepared to cast aside as unconstitutional any restrictions on parties' role in financing electoral campaigns. That question may well come before the Court in the not-so-distant future.

The uniquely American two-party system itself came under scrutiny in timmons v. twin cities area new party (1996). The two major parties perpetuate their control of state legislatures by imposing ballot access and public financing laws disadvantageous to minor parties. In Timmons, the Court rejected a constitutional attack on this legal entrenchment of the two-party system. The Court upheld a state ban on fusion, a practice used by minor parties to gain exposure by nominating as their candidate someone who has also been endorsed or nominated by one of the major parties. The Court found a state interest in promoting political stability through a healthy two-party system; states are thus constitutionally free to maintain the substantial barriers facing third parties in the American political arena. This judicially sanctioned party duopoly further insulates the major parties from minor party challenges; in the process, the Court may become an obstacle to party reform. By diminishing the associational rights of minor parties, the Court may be complicit in propping up a party system that fails the test of representativeness.

The Rehnquist Court's decisions, however, have not been uniformly party friendly. In Morse v. Republican Party of Virginia (1996), the Court impaired the autonomy and associational rights of parties to define for themselves how they conduct their primary elections.

Despite the short-term advantages the Timmons and Colorado Republican Federal Campaign Committee cases might confer upon the major parties, their ultimate impact depends on the extent to which the parties can use them to sharpen their traditional democratic functions, and demonstrate clearly that they are worthy of constitutionally protected freedom.

David K. Ryden


Epstein, Leon 1986 Political Parties in the American Mold. Madison: University of Wisconsin Press.

Issacharoff, Samuel;K arlan, Pamela S.; and Pildes, Richard H. 1998 The Law of Democracy: Legal Structures of the Political Process. New York: Foundation Press.

Lowenstein, Daniel H. 1995 Election Law: Cases and Materials. Durham, N.C.: Carolina Academic Press.

Ryden, David K. 1996 Representation in Crisis: The Constitution, Interest Groups, and Political Parties. New York: State University of New York Press.

——1999 'The Good, The Bad, and The Ugly': The Judicial Shaping of Party Activities. Pages 50–65 in John Green and Daniel Shea, eds., The State of the Parties, 3rd ed. Boulder, Colo.: Roman & Littlefield.

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