The Party's Over: McCutcheon, Shadow Parties, and the Future of the Party System

28 Pages Posted: 13 Jun 2015

See all articles by Joseph Fishkin

Joseph Fishkin

University of Texas at Austin - School of Law

Heather Gerken

Yale University - Law School

Date Written: June 12, 2015

Abstract

McCutcheon v Federal Election Commission can only be understood against the deep shifts taking place in American politics. By some measures, party identity is very strong, and the Democratic Party and the Republican Party are at the height of their power. Other measures suggest that the parties are losing their grip on politics to “outside groups” – SuperPACs and nonprofits – which have taken over a startling array of core party functions. But these “outside groups” are are deeply and durably aligned with one party or the other and run by consummate party insiders. That’s why we call them shadow parties.

The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. McCutcheon struck down the FECA’s aggregate limits, which capped how much hard money into one donor could give to candidates and party committees in a given year. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument – and the emerging conventional wisdom in the field – is that McCutcheon will level the playing field between the official party leaders and the shadow parties by allowing donors to pour more money into the official party structure.

We are skeptical. Some funds that would have flowed to outside groups will seep back into the official party structure, but the effect will be modest. Moreover, the crude argument – pitting “outside” funders against “the parties” – fundamentally misdiagnoses the problem. The real problem with the growth of shadow parties has less to do with the “strength” or “weakness” of the official parties relative to outside groups and more to do with who exercises power within the parties writ large. What we are witnessing is not outside spenders pulling power away from the parties but an intraparty battle for the heart and soul of the party writ large.

Although we see this battle as an intraparty fight, its likely outcome is one that “small-d” democrats ought to find disquieting. The parties have been important sites of pluralist competition. The shift toward shadow parties threatens to flatten the party structure and inhibit pluralist politics. Money isn’t just shifting from one place to another within the party writ large; it is shifting from one type of institution to another, quite different type of institution. Compared to the official parties, the shadow parties are more hierarchical and less porous. They are closed to most and controlled by few. We are especially concerned that the shift to the shadow parties will permanently squeeze out the party faithful – the activists and highly engaged citizens who serve as a bridge between everyday citizens and political elites – and largely eliminate their already-diminished role within the party writ large. The shift toward shadow parties thus raises important questions about the future of American politics and who ought to control political parties.

Keywords: Political parties, campaign finance, McCutcheon v. FEC, shadow parties

Suggested Citation

Fishkin, Joseph and Gerken, Heather, The Party's Over: McCutcheon, Shadow Parties, and the Future of the Party System (June 12, 2015). Supreme Court Review, Vol. 2015, No. 1, 2015; Yale Law School, Public Law Research Paper No. 546; U of Texas Law, Public Law Research Paper No. UTPUB631. Available at SSRN: https://ssrn.com/abstract=2617747

Joseph Fishkin

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

HOME PAGE: http://www.utexas.edu/law/faculty/profile.php?id=jrf84

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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