Nov. 8, 2016 – A leading constitutional law scholar said the roles of Democratic and Republican parties were diminished in the 2016 presidential election at the Houston Law Review's 21st Annual Frankel Lecture.
Samuel Issacharrof, the keynote speaker, delivered his comments in a talk titled "Outsourcing Politics: Political Parties and the Theory of the Firm" last week at the JW Marriott in downtown Houston, four days before the election.
"If you go back in American history, there are certain characters and functions that the party and the party alone could do," Issacharoff said. "The erosion of that is in part because of changes of mores, society and law. It has made our parties quite vulnerable."
Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at New York University School of Law. His research deals with issues in civil procedure, law and economics, American and comparative constitutional law and employment law. He is considered a pioneer in the law of political process. His 1998 "Law of Democracy" casebook helped pioneer constitutional law as an area of study. He worked in both presidential campaigns for Barack Obama, with a focus on election and voting issues.
He began the lecture by pointing out the resilience of the American two-party system, and how it has survived civil war, two world wars, the rise of the administrative state, and a number of realignments in national politics. Issacharoff said despite the persistence of both parties in American politics, their roles have been marginalized by nontraditional candidates like businessman Donald Trump and Vermont Senator Bernie Sanders.
"Somehow the parties have been survivors, yet something odd happened this election," Issacharoff said. "You have on the Republican side a candidate who until the eve of the primary process was not a Republican and was not a member of the party. He did not register as a Republican and did not vote Republican the best anyone can tell."
"On the Democratic side, the leading candidate at times and almost the nominee, was somebody who was not registered as a Democrat, was in the Senate, but never declared himself a member of the Democratic Party."
Issacharoff pointed to super PAC funding and the caucus and primary processes as examples that show how parties have less of a say over their nominee. He suggested that if campaigns were financed by the parties, it would lead to more centrist, moderate candidates. However, the combination of super PACs and individual donors has galvanized the extremes of both parties, and has allowed candidates to circumvent the traditional structure to raise substantial amounts of campaign dollars.
"It is not a surprise that the outsiders who challenged this year were the ones who mastered the small donor approach – Bernie Sanders and Donald Trump," Issacharoff said. "If you think about the state of our parties, it's become easier and easier to be an outsider.
"Someone can get elected to the Senate, never serve on any committees and never do anything except announce your candidacy after two years and run for president right away. Of course, that's in reference to Ted Cruz, but it's also true of Barack Obama."
Heather Gerken, the J. Skelly Wright Professor of Law at Yale Law School, provided a response to Issacharoff's talk. She illustrated a concern that even if parties are given more authority through successful reform, it is not a given it will lead to moderate behavior.
"Perhaps the real question we should be asking is not how to reduce polarization, but whether we can," Gerken said. "One worry is what if strengthening party leadership won't be enough to overcome the enormous forces of polarization.
"The other alternative scenario is that reforms will work, and they will succeed and give party leadership a position of power. It could lead to skepticism because if party leaders become more powerful. They will become crucial targets from the exact same polarizing forces like activists and donors, who are busy now focusing their interest on candidates."
Robert Bauer, a partner at Perkins Coie provided a final response to Issacharoff. Bauer served as White House Counsel to President Barack Obama and in 2013 was named Co-Chair of the Presidential Commission on Election Administration. He said law will not be able to eliminate the impact of super PACs on campaigns, but it can be used to help parties operate more effectively.
"Super PACs are here to stay," Bauer said. "We have to take Super PACs as a fixed feature of our political system and try to determine how we can regulate an environment in which Super PACs and parties operate, so if they're going to co-exist they're going to function efficiently."
The lecture was presented by the Houston Law Review, and moderated by Assistant Professor of Law D. Theodore Rave.