Earlier this week, Rick Hansen wrote a piece arguing that Congress should legislatively end the caucus nominating system. Jon Bernstein wrote a great piece in response, arguing against further regulation of party nomination. I wrote a piece two days ago both endorsing and going further than Bernstein: in theory, I don’t believe there should be any public regulation of — or even public recognition of the existence of — the political parties. And certainly not any state favoritism accorded them on a preferential basis.

Shortly after I wrote that, Scott Lemieux reacted to Bernstein’s piece, and came down on the side of at least the status quo, but leery about the possibility of unequal access to the nomination process if the parties were allowed to simply do their own thing:

Primaries, as the Supreme Court noted when it struck down the Texas Democratic Party’s all-white primary, have always been subject to state regulation and intertwined with the general election process. Given that we have an electoral structure that limits voters to at most two viable choices in most elections, primary and general elections cannot be neatly separated. Barring a greatly accelerated economic recovery, any nominee chosen by the Republican Party has a reasonable chance of being president of the United States. For many House and some Senate elections, the process of candidate selection is the only practically meaningful election given the ideological makeup of some states. Thus, the government has an interest in ensuring some level of fairness in the candidate selection process, and, in general, the electoral system would benefit from more uniform federal regulations rather than more decentralization.

Bernstein has since responded, clarifying his point of view about the ok-ness of current regulations:

In my reading, not only are political parties necessary for democracies, but  parties must be both permeable and internally democratic for a polity to be truly democratic. So, contrary to Glassman, I do think there’s an important state interest in limiting the extent to which parties are conspiracies of some against the whole … [b]ut “internally democratic” can cover a very wide range of practices, and I’d want to see a very light regulatory hand.

So: if parties design procedures which give activists (and other party actors) more influence and voters-as-just-voters less, that’s fine with me as long as those voters can, if they choose, become activists. But I’d have a very big problem with anything that says that some groups can’t become active party members, whether explicitly or implicitly, and I’d be okay with the state stepping in to prevent that.

I should clarify my position, because I actually don’t think I disagree all that much with Bernstein or Lemieux, at least not in how current practice is structure. I’d make three points:

1. If the state is going to control the ballot access, then the White Primary has to be barred by law. I don’t think there’s any question that the White Primary cases were correctly decided by the Supreme Court.  By the time they took place in the 1940’s, the state had long been deeply involved in the inner workings of primary elections: they controlled the ballots, the ballot access, had laws governing corruption in primary election, and — most importantly — the bar on blacks participating in the primary was state law. That’s ridiculous. Therefore, I find it perfectly reasonable that the parties should be subject to, at the least, regulations necessary to ensure that individual citizens have the opportunity to participate on an equal basis. Once the state is involved — and especially when they take actions that diminish the market forces that incentivize a private party system to behave optimally on its own — then state-mandated open participation makes complete sense. On this, I think I agree with Bernstein and Lemieux.

2. That said, I think equal opportunity is a very, very low threshold. The only thing I would require of the parties in regard to equal opportunity would be non-discrimination among individuals in regard to participation. I would still leave it up to them to determine what “participation” actually meant. I’m fine if parties want to have primaries. I’m fine if they want to have non-discriminatory caucuses. But I’d be fine with stuff a lot more restrictive than that: if a party only wanted to allow people who had been registered members of the party for 5 years or more to vote in a primary, I’m all for allowing  it (although I wouldn’t personally be in favor of it). If they wanted to restrict primary participation to people who attended a monthly county meeting, same thing. Ditto if they required a certain amount of canvassing on behalf of the party to participate. Again, so long as these things were applied equally, I’d be ok with it in the modern environment.

3. Furthermore, I don’t think  the state inherently needs be involved with the parties. As I said, under the current arrangements, it would be crazy to reverse the White Primary decision. But the current situation — in which the state regulates the ballot access — is what freezes us into the two-party system we have. The Democrats and the Republicans are not going anywhere, and it’s directly because of state-given advantages they have. It’s like two businesses that have effectively used the government to create an oligopoly. In theory, the role of the state in regard to parties should be the same as the role of the state in regard to business: encourage open competition, and ameliorate situations in which market failures occur. Remember, the market is not beloved by the players. Just as individual businesses have no incentive to encourage market competition (but instead have strong incentives to stifle it), political parties have every incentive to discourage party competition.

And thus what you have in the current environment is exactly what the two existing parties want: permanent existence as state-run institutions. There’s no chance of replacement by a third party. But people get the reason wrong all the time for why that is the case. It’s not because no one can seem to organize a third-party outside of the existing parties. It’s because there’s no way for insiders within the party to effectively bolt and get on the ballot. That solves a lot of problems for the parties: minority dissenting opinion doesn’t really have to be taken too seriously, disgruntled losing candidates don’t need to be mollified, and shutting people completely out of the process only stands to lose votes, rather than threatening your long-term existence.

And that’s the real danger of things like the White Primary; with the ballot access locked up by the state, the market has no ability to react, and the entrenched status quo is easily perpetuated. The parties certainly respond to market forces in regard to gaining voters; but they have little incentive right now from market forces that threaten their own existence, and thus their own internal regulations tend to be created in response to things other than basic market forces.

Now, none of this is not to say that market failures don’t exist. Even an utterly private party system in Texas in 1940 might not have been able to save African-Americans who wanted to participate. They were perhaps too small a minority operating in a one-party system. Even if the state didn’t control the ballot access, it’s not clear they could have achieved meaningful participation. So the state may have had to step in anyway.

But I’m less sure of that than most, and I’m dubious about whether it would be a problem today under an utterly private party system. In much of the south, there was no Republican party to vote for in the general election. But that had nothing to do with market forces; it was directly the result of the state itself destroying the market, quite purposefully. Not only was the state explicitly trying to keep African-Americans from  voting, but the threat of private and/or state violence was discouraging African-Americans and their white allies from even trying to form a Republican party to compete with the one-party white democrats. You could imagine that in a situation where there were zero ballot access hurdles (i.e. print up your tickets and hand them out to your friends) and the state was ensuring everyone’s right to vote in the general election, African-Americans and their white allies could have easily put together a Republican party that was not only competitive, but very quickly the majority in many district across the South.

And if that happened, the Democratic party would have, by necessity, needed to respond to market forces and start trying to attract African-American votes. And presumably that would have eventually led to ditching the White primary. The point being that we shouldn’t assume the problem was inherently with the party system, given that the entire state apparatus of the South was conspiring to prevent African-Americans from voting in the general election. Which was clearly out of bounds, both legally and under any normative theory of voting and parties. So I’m disinclined to learn that the lesson of the White Primary is that no private party system can create equal opportunity because you are bound to get things like racial discrimination. I’m just not sure it follows.

But, of course, it did. The White Primary was real, and not only African-Americans but also aggregate public choice suffered from its existence. So we have to be wary of it. But I’d be less wary of it today than 70 years ago. If we completely privatized the party system now — and I mean completely — I have a hard time imagining we’d see very much in the way of systematic racial discrimination. Mostly because of the reasons stated above: the state generally has a commitment to universally protect the right to vote in the general election, and if it could do that at an acceptable level (I know many people think it currently does not), then I think market forces under an privatized ballot system would almost certainly destroy the possibility of a White Primary cropping up.

In fact, I think discrimination would be the least of our worries about private parties. Although I support the idea of deregulating the party system, I worry a lot about corruption. If you truly want to privatize the parties, you need to get rid of all laws punishing corruption in party activities or primaries. You have to force the parties to hold their own elections, in private dwellings, and count the ballots on their own. In effect, you have to make them do it privately. And that could result in a real mess, and it’s the main reason I retain some skepticism about deregulation; I think the possibility of vote buying and election fraud and the like would almost certainly raise the appearance of impropriety over the parties, if not an actual massive problem. And don’t think this wasn’t an issue in the 19th century, it was. The parties tended to use the caucus/convention system for just this reason; organizing a state-wide private vote without the help of the government is really hard.

Which is probably an odd way of saying that while I think normatively there should be no relationship between parties and the state, in practice I think we should simply move toward a system that lets parties behave more like, well, parties. And the first thing I’d do on that count is get rid of all open primaries. They go against the very spirit of a party system, and I can’t think of any legitimate purpose that they serve, except to weaken the control of the co-partisans over the nomination, in favor of mass participation. But that mass participation only serves to render the parties something more like an extra layer of elections, rather than a coherent group of like-minded political actors.