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Subject: 	[Lpbr-full] THE PARTIES IN COURT: AMERICAN POLITICAL PARTIES 
UNDER THE CONSTITUTION
Date: 	Fri, 12 Dec 2014 11:11:11 -0500
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LAW AND POLITICS BOOK REVIEW:  ISSN 1062-7421

An Electronic Periodical Published by The Law and Courts Section,

The American Political Science Association

Herbert Jacob, Founding Editor

Please send all comments and questions to Stephen Meinhold, Editor, 
meinholds at uncw.edu <mailto:meinholds at uncw.edu>

*Vol. 24 No. 10 (October 2014) pp. 518-523***

*THEPARTIES IN COURT: AMERICAN POLITICAL PARTIES UNDER THE CONSTITUTION 
<http://www.lpbr.net/2014/12/the-parties-in-court-american-political.html>*by 
Robert C. Wigton. Lanham, MD: Lexington Books. 2013. 392pp. $120.00. 
ISBN: 978-0-7391-8967-2.

Reviewed by Graham G. Dodds, Department of Political Science, Concordia 
University (Montreal), g.dodds at concordia.ca <mailto:g.dodds at concordia.ca>.

When even casual observers of American politics are familiar with 
Citizens United, a new tome on how the judiciary has addressed 
legislative regulation of political parties is likely to be a welcome 
resource.  In The Parties in Court, Robert Wigton considers the vague 
constitutional status of American political parties and maps out how 
courts have judged their regulation. As every student of American 
politics well knows, even though political parties are not provided for 
in the Constitution and the Founding Fathers feared them, parties have 
long been a central part of American politics and government. How 
theyâ??ve been regulated is thus an important political, legal, and 
constitutional matter.

In Wigtonâ??s telling, the legislative regulation of U.S. political 
parties initially involved Progressive-era anti-corruption reforms like 
the Australian or secret ballot and direct primaries, but it expanded 
considerably from the mid-twentieth-century onward. According to Wigton, 
â??The tide of history in this country has clearly favored increasing 
government regulation of party activitiesâ?? (p. 33), such that 
â??modern American political parties are generally regulated more 
heavily and in more detail than parties in most other Western nationsâ?? 
(p. 37).

In addition to the issue of the degree of the regulation of parties, 
there is also the matter of its locus. And as Wigton notes, while 
Congress has on occasion passed laws to govern political parties in some 
fashion, most of the legislative regulation of political parties in the 
U.S. has occurred at the state level. The development of laws governing 
parties is therefore important for considerations of federalism, but it 
is also important for inter-branch relations, as Wigton explains:

State legislatures have been the primary engines for imposing 
regulations on political parties. But their overt partisanship makes 
them unlikely places for developing a balanced and comprehensive 
approach to the role of parties in our governmental system. The task of 
making progress in this area has thus by default fallen to the judiciary 
which, though hardly nonpartisan, is generally able to take a longer and 
more objective view of such matters (p. 344).

The judiciary has endeavored to sort out a host of issues relating to 
the regulation of political parties.   In many cases, this has entailed 
trying to make a judgment about the extent to which parties are private 
organizations and therefore entitled to substantial autonomy or 
governmental deference and the extent to which their activities have a 
public impact sufficient to warrant greater governmental intervention. 
Wigton contends that â??Since the late nineteenth-century American 
political [*519] parties have been gradually converted from primarily 
private associations into quasi-public entities akin to public 
utilitiesâ?? (p. 37).

Beyond questions of state action, Wigton notes that other constitutional 
principles that have often come up in litigation about parties include 
the political question doctrine, freedom of association, the Fourteenth 
Amendmentâ??s equal protection clause and the nationalization of the 
Bill of Rights, and the right to political participation (per the 
Fifteenth Amendment). Regardless of the particular constitutional 
questions that come up, Wigton says that the judicial treatment of these 
matters suggests that judges are quite divided about the value of 
political parties. As Wigton writes, â??On the one hand are those judges 
who regard political parties as â??facilitators of democracy,â?? relying 
on their roles as aggregators of political majorities in both elections 
and government. The opposing camp of judges â?¦ tends to see parties as 
corruptors of the political process and governmentâ?? (p. 341).

In what might be regarded as the bookâ??s primary thesis, Wigton says, 
â??Our objective will be to determine how far the courts have progressed 
in reconciling the independence of the political parties with ideals of 
democratic selectionâ?? (p. 49).In his discussion of all these matters, 
Wigton covers over 500 court cases, some of which involve multiple 
substantive and jurisprudential points.To organize this mass of 
information, the book utilizes a version of the well-known tripartite 
division of partiesâ?? activities first articulated by V. O. Key and 
Frank J. Sorauf, with separate chapters on partiesâ?? internal 
activities, parties in the electoral process, and parties in government.

Partiesâ?? Internal Activities

The regulation of partiesâ?? internal activities includes things like 
how parties are officially recognized (which is often a matter of what 
percent of the vote a party must receive in order to appear on future 
ballots), the sections or committees into which parties are organized 
and how their personnel obtain their positions, and how official 
nominees and delegates to national conventions are selected. Obviously 
those things are at the heart of how parties operate, so â??State laws 
which seek to place limitations on how political parties organize and 
govern themselves internally are the most serious threat to party 
independenceâ?? (p. 72).  However, says Wigton, â??as parties 
increasingly enter the public arena through performance of more 
electoral activities they should expect to be subjected to greater 
governmental supervisionâ?? (p. 73), and legislatures have indeed 
imposed various regulations on them.

Wigtonâ??s discussion of cases that have concerned the regulation of 
partiesâ?? internal activities focuses on several main areas. First, 
there is the issue of intra-party elections, with cases such as Lynch v. 
Torquato (1965). Second, starting in the 1970s, Wigton sees a shift to 
cases that involved the First Amendment and free association questions, 
like Marchioro v. Chaney (1979), Anderson v. Celebrezze//(1983/)/, 
Tashjian v. Republican Party of Connecticut//(1986),//and Eu v. San 
Francisco County Democratic Central Committee//(1989).//Third, there is 
the issue of the selection of presidential convention delegates, as 
addressed in cases like Oâ??Brien v. Brown (1972), Cousins v. Wigoda 
(1975) and Democratic Party v. [*520] Wisconsin ex rel. La Follette (1981).

Seeking to discern a general trend in cases about partiesâ?? internal 
activities, Wigton notes that courts have struggled to draw a line 
between party activities that should be subject to state regulation 
â??and those that should be largely free of such regulationâ?? (p. 117). 
Beyond noting that difficulty, Wigton says that courts appear to be 
willing to grant parties greater freedom concerning their internal 
organization, while being more sympathetic to regulations that more 
directly relate to the nomination process. Also, he says that 
â??Generally, the federal courts have been much more deferential to the 
independence and autonomy of the /national/ party organizations than 
they have been to the /state/ party organizationsâ?? (p. 113).

Parties In The Electoral Process

In terms of the regulation of political parties in the electoral 
process, there are laws that concern campaign finance, the disclosure of 
sponsors of political advertising, ballot access, and primary elections. 
And as with the regulation of partiesâ?? internal activities, the 
regulation of their electoral activity is mostly at the state level. 
According to Wigton, â??The only significant federal legislation here is 
the Federal Election Campaign Act (FECA)â?? of 1971 (pp. 133-4).

Nevertheless, there is a significant history of major federal cases 
dealing with the regulation of parties and campaign financing, and 
Wigton traces that development from Buckley v. Valeo (1974) to FEC v. 
Colorado Republican Federal Campaign Committee//(1993 and 2000), 
McConnell v. FEC (2003), and Citizens United v. FEC (2010). Wigtonâ??s 
book was published a few months before the Supreme Court decided 
McCutcheon v. FEC (2014)/,/ striking down aggregate limits on how much 
an individual could give to political parties during a two-year election 
cycle.

In terms of state-level campaign finance regulation, Wigton discusses 
Nixon v. Shrink Missouri Government PAC(2000), which he regards as the 
Courtâ??s â??most important modern ruling dealing with state campaign 
lawsâ?? (p. 172). The Courtâ??s decision barely mentioned political 
parties per se, but it granted states significant leeway in regulating 
campaign finance, and â??Most lower court decisions since /Shrink 
Missouri/ have upheld state efforts to regulate the financial side of 
their electoral processesâ?? (p. 174).

Beyond campaign finance, Wigtonâ??s discussion of partiesâ?? electoral 
activities includes cases that concern anti-fusion laws, elections in 
which the ballot includes a candidateâ??s name but not his or her party 
affiliation, â??blanketâ?? or â??jungleâ?? primaries that combine 
candidates of different parties, and whether primaries are open or 
closed. He also considers the judicial treatment of third parties, with 
a discussion of Timmons v. Twin Cities Area New Party (1997), in which 
the Court seemed divided about whether a state interest in stability 
could justify a substantial burden on third parties.

Parties In Government

Wigtonâ??s chapter on the regulation of parties in government (which he 
terms [*521] â??incumbent political partiesâ??) addresses two main 
issues: political patronage and partisan gerrymandering. While political 
patronage is â??one of the most venerable traditions in Americaâ?? (p. 
258), Wigton contends that â??The Supreme Court did not directly deal 
with the many issues raised by political patronage until 1976â?? (p. 
262). That year, in Elrod v. Burns, the Court sought to distinguish 
between public employees who were in â??policy-making positionsâ?? and 
those who were not, and it said that the former could be subject to 
patronage reprisals while the latter could not (p. 364). The case is 
also noteworthy for Justice Powellâ??s dissent, in which he extolled the 
value of patronage. In Rutan v. Republican Party of Illinois (1990), the 
Court took up the issue of what sorts of government actions could 
trigger the protections that Elrod afforded some governmental employees, 
and in that case Justice Scaliaâ??s dissent sought to validate patronage 
as important to the strength of political parties. According to Wigton, 
â??In recent years, the circuit courts generally seem to have been 
intent on preserving, or even expanding, the class of high-level public 
employees who remain subject to patronage hiring and firingâ?? (pp. 281-2).

Wigton says that â??the courtsâ?? willingness to rein in political 
patronageâ?? stands in sharp contrast to â??the general reluctance of 
the courts to employ judicial power to combat partisan gerrymanderingâ?? 
(p. 303). He claims that â??There has been virtually no congressional 
interest in regulating state and local electoral redistrictingâ?? (p. 
287), and while courts have often struck down racial gerrymanders, they 
have been much more permissive regarding partisan gerrymanders, 
â??Despite the similarities between the two types of gerrymanderingâ?? 
(p. 311). Wigton discusses cases like Davis v. Bandemer (1986), Vieth v. 
Jubelirer (2004), and L.U.L.A.C. v. Perry (2006) and says the Court is 
divided about whether partisan gerrymandering â??should be analyzed 
under First Amendment principles or under equal protectionâ?? (p. 349). 
He concludes that â??The judiciaryâ??s handling of partisan 
gerrymandering â?¦ has not progressed much beyond a thorough exposition 
of the issues and choices involvedâ?? (p. 314).

The Parties in Courtis well researched and very well documented: each of 
the substantive chapters is followed by hundreds of detailed endnotes 
spread over 18-24 pages.  It is also well written and easy to read (if a 
bit dry), though there are more than a few typographical errors.  The 
bookâ??s structure and its clear divisions within each chapter render it 
easy to follow, and it does a very good job of covering a lot of 
material; it is both comprehensive and comprehensible.

The bookâ??s main scholarly contribution is as an informational 
resource, and it may serve as an authoritative reference. But its more 
interesting parts are the few areas in which Wigton presents his own 
views. Wigton wishes to employ the tripartite model of political parties 
not just to disentangle judicial decisions about their regulation (i.e., 
the organizational scheme of the book), but also to govern how courts 
should approach their decision-making. As Wigton explains, â??My 
objective is to develop guidelines that preserve the â??desirableâ?? 
activities and contributions of parties while simultaneously curbing 
some of the problems and â??abusesâ?? that political parties can bring 
to government and electionsâ?? (pp. 342-3).

That objective sounds perfectly even-handed, but for Wigton it is 
explicitly predicated on a view that parties are both central and 
essential to the well-functioning of the American political and 
governmental systems: â??political parties are the keystone of the 
political system and their proper functioning is a vital element in the 
success of representative governmentâ?? (p. 343). Obviously, placing 
such a high value on political parties leads to great suspicion of their 
regulation. As Wigton puts it, â??Given their vital role in American 
politics, parties appear to be deserving of considerable freedom from 
governmental controlâ?? (p. 33). He further contends, â??What appears to 
be needed at this time is for the courts to create and enforce a 
bright-line boundary protecting the core activities of parties from 
further erosion by government regulationâ?? (p. 345).

Wigton suggests that some aspects of parties merit more regulation while 
others deserve less, as the tripartite model suggests that regulation of 
partiesâ?? internal functions and their activities in government â??is 
relatively easyâ?? (p. 351). However, â??In the electoral arena 
partiesâ?? roles are more mixed and the costs and benefits far less 
certainâ?? (p. 351), which is why â??The regulation of political parties 
in the electoral realm has always posed the most difficult questionsâ?? 
(p. 349).

In terms of partiesâ?? electoral activities, Wigton suggests that 
regulation should be lighter for primaries than in the general election 
(pp. 219-220). And he also sees a need for less regulation in the two 
areas in which he says party regulation is more straightforward, as he 
wants less regulation of parties in government (p. 315), and he says the 
â??historic erosion of the private side of political parties now 
imperils the benefits associated with independent, autonomous, and 
vigorous political partiesâ?? (p. 71).

Different readers, like different legislators and different judges, may 
come to different conclusions, but Wigtonâ??s book should be appreciated 
by a broad audience. The Parties in Court will be of particular interest 
to scholars of political parties and election laws, and it is suitable 
for graduate or advanced undergraduate students.

References:

Key, V. O. 1964. Politics, Parties, and Pressure Groups. New York: Crowell,

Sorauf, Frank J. 1968. Party Politics in America. Little Brown..

CASE REFERENCES://

Anderson v. Celebrezze, 460 U.S. 780 (1983).

Buckley v. Valeo, 424 U.S. 1 (1976).

Baker v. Carr, 369 U.S. 186 (1962).

Citizens United v. Federal Campaign Committee, 558 U.S. 310 (2010).

Cousins v. Wigoda, 419 U.S. 477 (1975).

Davis v. Bandemer, 478 U.S. 109 (1986).

Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981). 
[*523]

Elrod v. Burns, 427 U.S. 347 (1976).

Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 
(1989).

Federal Election Commission v. Colorado Republican Federal Campaign 
Committee/, /839 F. Supp. 1448 (D. Colo. 1993).

Federal Election Commission v. Colorado Republican Federal Campaign 
Committee/, /213 F3d 1221 (10^th Cir. 2000).

League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 
(2006).

Lynch v. Torquato, 343 F. 2d 370 (3^rd Cir. 1965).

Marchioro v. Chaney, 442 U.S. 191 (1979).

McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

McCutcheon v. Federal Election Commission/, /134 S. Ct. 1434 (2014).

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000).

Oâ??Brien v. Brown, 409 U.S. 1 (1972).

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990).

Tashjian v. Republican Party of Connecticut/, /479 U.S/. /208 (1986).//

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

Vieth v. Jubelirer, 541 U.S. 267 (2004).

***************

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