Political parties, representation, and federal safeguards

Northwestern University Law Review

Volumn 96, Issue 3, 2002, Pages 977-1026

  Frymer, Paul ^a,b   Yoon, Albert ^c  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c NONE

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[No Author keywords available]

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EID: 0041384235     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (227)

1. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
2. JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 176-81 (1980).
3. 469 U.S. 528, 554 (1985) (quoting EEOC v. Wyoming, 460 U.S. 226, 236 (1983)). The Court cited Wechsler, Choper, and Bruce La Pierre, as leading authorities defending nonjusticiability. Id. at 551 n. 11; see Bruce La Pierre, The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the States as Agents of the Nation, 60 WASH. U. L.Q. 779 (1982).
4. This thesis, however, continues to have its advocates on the Court. See United States v. Morrison, 529 U.S. 598, 660-661 (2000) (Breyer, J., dissenting). Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal balance . . . . Congress is institutionally motivated to do so. Its Members represent state and local district interests. They consider the views of state and local officials when they legislate, and they have even developed formal procedures to ensure that such consideration takes place. Id.; Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 95 n.4 (2000) (Stevens, J., dissenting) ("[T]he relevant constitutional provisions were crafted to ensure that the process itself adequately accounted for local interests."); Printz v. United States, 521 U.S. 898, 956 (1997) (Stevens, J., dissenting). Given the fact that the Members of Congress are elected by the people of the several States, with each State receiving an equivalent number of Senators in order to ensure that even the smallest States have a powerful voice in the Legislature, it is quite unrealistic to assume that they will ignore the sovereignty concerns of their constituents. It is far more reasonable to presume that their decisions to impose modest burdens on state officials from time to time reflect a considered judgment that the people in each of the States will benefit therefrom. Id.
5. See Board of Trustees v. Garrett, 531 U.S. 356 (2001); Morrison, 529 U.S. 598; Kimel, 528 U.S. 62; Printz, 521 U.S. 898; City of Boerne v. Flores, 521 U.S. 507 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992).
6. See Printz, 521 U.S. at 930. Members of Congress can take credit for "solving" problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects. Id.; New York, 505 U.S. at 182-83 ("If a federal official is faced with the alternatives of choosing a location or directing the States to do it, the official may well prefer the latter, as a means of shifting responsibility for the eventual decision.").
7. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
8. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
9. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
10. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
11. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
12. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
13. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
14. See, e.g., Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Marci A. Hamilton, The Elusive Safeguards of Federalism, 574 ANNALS 93 (2001); Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz or Principle?, 111 HARV. L. REV. 2180 (1998); Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979); William P. Marshall, Federalization: A Critical Overview, 44 DEPAUL L. REV. 719, 728-32 (1995); Deborah Jones Merritt, Three Faces of Federalism: Finding a Formula for the Future, 47 VAND. L. REV. 1563, 1583 (1994); Saikrishna B. Prakash & Jonh C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, 79 TEX. L. REV. 1459 (2001); Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 963 (1985).
15. Mark Tushnet, Two Version of Judicial Supremacy, 39 WM. & MARY L. REV. 945, 951 (1998).
16. See City of Boerne, 521 U.S. at 519, 536. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. . . . . . . . . . . When the political branches of the Government act againts the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court's precedent, not RFRA, which must control. Id. at 519, 536; Lopez, 514 U.S. at 557 n.2 ("[W]hether particular operations effect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.") (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring) (alteration in original)).
17. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000) [hereinafter Krame, Political Safeguards]; Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994) [hereinafter Kramer, Federalism].
18. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000) [hereinafter Krame, Political Safeguards]; Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994) [hereinafter Kramer, Federalism].
19. Kramer, Political Safeguards, supra note 10, at 278.
20. See id. at 280.
21. Id. at 279.
22. JOHN H. ALDRICH, WHY PARTIES? THE ORIGINS AND TRANSFORMATIONS OF PARTY POLITICS IN AMERICA 109 (1995).
23. See id. at 19. Political actors have chosen to alter their parties dramatically at several times in our history, reformed them often, and tinkered with them constantly. Of all major political bodies in the United States, the political party is the most variable in its rules, regulations, and procedures - that is to say, in its formal organization - and its informal methods and traditions. Id.
24. Kramer, Federalism, supra note 10, at 1538.
25. See John F. Bibby & Thomas M. Holbrook, Parties and Elections, in POLITICS IN THE AMERICAN STATES: A COMPARATIVE ANALYSIS (Virginia Gray, Russell L. Hanson & Herbert Jacob eds., 2000).
26. See ALDRICH, supra note 14, at 18-27.
27. See id at 4 ("The major political party is the creature of the politicians, the ambitious office seeker and officeholder. They have created and maintained, used or abused, reformed or ignored the political party when doing so has furthered their goals and ambitions.").
28. Kramer, Federalism, supra note 10, at 1524.
29. This is not to deny, as Samuel Issacharoff well argues, that at specific historical moments, activists and party organizational rules (particularly party nominating procedures) can radically alter the ability of party leaders to construct their own agenda. See Samuel Issacharoff, Private Parties With Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, 101 COLUM. L. REV. 274 (2001) However, we argue that over time, electoral incentives dominate all calculations, and activists and organizational rules that limit electoral opportunities are marginalized in the face of the constant necessity to maintain electoral viability. See PAUL FRYMER, UNEASY ALLIANCES: RACE AND PARTY COMPETITION IN AMERICA 42-44 (1999).
30. This is not to deny, as Samuel Issacharoff well argues, that at specific historical moments, activists and party organizational rules (particularly party nominating procedures) can radically alter the ability of party leaders to construct their own agenda. See Samuel Issacharoff, Private Parties With Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, 101 COLUM. L. REV. 274 (2001) However, we argue that over time, electoral incentives dominate all calculations, and activists and organizational rules that limit electoral opportunities are marginalized in the face of the constant necessity to maintain electoral viability. See PAUL FRYMER, UNEASY ALLIANCES: RACE AND PARTY COMPETITION IN AMERICA 42-44 (1999).
31. For a discussion of the support parties have historically received from political scientists, see FRYMER, supra note 21, at 12-15.
32. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997) (finding that states may "favor the traditional two-party system" and may "temper the destabilizing effects of party-splintering and excessive factionalism"); Rutan v. Republican Party, 497 U.S. 62, 107 (1990) (Scalia, J., dissenting) (stating that "[t]he stabilizing effects of such a [two-party] system are obvious"); Davis v. Bandemer, 478 U.S. 109, 144 (1986) (O'Connor, J., concurring) (writing that "[t]here can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government"); Branti v. Finkel, 445 U.S. 507, 532 (1980) (Powell, J., dissenting) (stating that "[b]road-based political parties supply an essential coherence and flexibility to the American political scene").
33. See Bruce Cain, Party Autonomy and Two-Party Electoral Competition, 149 U. PA. L. REV. 793 (2001); Issacharoff, supra note 21; Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REV. 750 (2001). But see Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331 (1997); Terry Smith, Parties and Transformative Politics, 100 COLUM. L. REV. 845 (2000).
34. See Bruce Cain, Party Autonomy and Two-Party Electoral Competition, 149 U. PA. L. REV. 793 (2001); Issacharoff, supra note 21; Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REV. 750 (2001). But see Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331 (1997); Terry Smith, Parties and Transformative Politics, 100 COLUM. L. REV. 845 (2000).
35. See Bruce Cain, Party Autonomy and Two-Party Electoral Competition, 149 U. PA. L. REV. 793 (2001); Issacharoff, supra note 21; Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REV. 750 (2001). But see Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331 (1997); Terry Smith, Parties and Transformative Politics, 100 COLUM. L. REV. 845 (2000).
36. See Bruce Cain, Party Autonomy and Two-Party Electoral Competition, 149 U. PA. L. REV. 793 (2001); Issacharoff, supra note 21; Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REV. 750 (2001). But see Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331 (1997); Terry Smith, Parties and Transformative Politics, 100 COLUM. L. REV. 845 (2000).
37. See Bruce Cain, Party Autonomy and Two-Party Electoral Competition, 149 U. PA. L. REV. 793 (2001); Issacharoff, supra note 21; Nathaniel Persily, Toward a Functional Defense of Political Party Autonomy, 76 N.Y.U. L. REV. 750 (2001). But see Richard L. Hasen, Entrenching the Duopoly: Why the Supreme Court Should Not Allow the States to Protect the Democrats and Republicans from Political Competition, 1997 SUP. CT. REV. 331 (1997); Terry Smith, Parties and Transformative Politics, 100 COLUM. L. REV. 845 (2000).
38. Persily, supra note 24, at 793.
39. See FRYMER, supra note 21.
40. Daniel Hays Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 TEX. L. REV. 1741, 1790 (1993).
41. See infra text accompanying notes 92-105.
42. 530 U.S. 567 (2000).
43. Fed. Election Comm'n v. Democratic Senate Campaign Comm., 454 U.S. 27, 41 (1981). The Court overturned a decision by the D.C. appeals court which had been concerned that such an agency agreement would lead candidates to "have little incentive to communicate with the State committee, preferring to deal with a committee of his colleagues that directs the flow of funds." Democratic Senatorial Campaign Comm. v. Federal Election Comm'n, 660 F.2d. 773, 781 (D.C. Cir. 1980).
44. See Colo. Republican Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604, 614-15 (1996) (overturning government restrictions on party committee efforts to make "independent expenditures"); Fed. Election Comm'n v. Nat'l Conservative Political Action Comm'n, 470 U.S. 480, 497 (1985) (overturning government restrictions on political committees to make "independent expenditures"); Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 263 (1986) (same); Buckley v. Valeo, 424 U.S. 1, 39-58 (1976) (overturning government restrictions on individuals to make "independent expenditures" and candidates to spend their own money).
45. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 944 (1994) ("Most of our states, the alleged political communities that federalism would preserve, are mere administrative units, rectangular swatches of the prairie with nothing but their legal definitions to distinguish them from one another."); JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 65-70 (1996); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623, 1654 (1994) ("The globalization of the economy is surely more important in determining what happens in the lives of residents of the United States than the intricacies of federalism doctrine.").
46. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 944 (1994) ("Most of our states, the alleged political communities that federalism would preserve, are mere administrative units, rectangular swatches of the prairie with nothing but their legal definitions to distinguish them from one another."); JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 65-70 (1996); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623, 1654 (1994) ("The globalization of the economy is surely more important in determining what happens in the lives of residents of the United States than the intricacies of federalism doctrine.").
47. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 944 (1994) ("Most of our states, the alleged political communities that federalism would preserve, are mere administrative units, rectangular swatches of the prairie with nothing but their legal definitions to distinguish them from one another."); JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 65-70 (1996); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623, 1654 (1994) ("The globalization of the economy is surely more important in determining what happens in the lives of residents of the United States than the intricacies of federalism doctrine.").
48. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 (1999) (upholding a Missouri law limiting size of campaign contributions to candidates); Fed. Election Comm'n. v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431 (2001) (Colo. Republican II) (upholding federal regulation of "coordinated expenditures" by political parties).
49. See supra note 31.
50. Colo. Republican II, 533 U.S. at 479.
51. Id. at 480.
52. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998); Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491 (1997).
53. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998); Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491 (1997).
54. See, e.g., Colo. Republican II, 533 U.S. at 493 (Thomas, J., dissenting). Justice Thomas was joined by Chief Justice Rehnquist and Justices Scalia and Kennedy.
55. Kramer argues that the changes in parties have failed to impact the political dependency between state and federal officials on each other. [W]hile parties and campaigns are vastly different enterprises than they were fifty or a hundred years ago, the changes have not been so important from the perspective of federalism . . . . The political dependency of state and federal officials on each other remains among the most notable facts of American government. Kramer, Political Safeguards, supra note 10, at 282.
56. See ALDRICH, supra note 14, at 282-83; John J. Coleman, The Resurgence of Party Organization? A Dissent from the New Orthodoxy, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES 311 (Daniel M. Shea & John C. Green eds., 1994).
57. See ALDRICH, supra note 14, at 282-83; John J. Coleman, The Resurgence of Party Organization? A Dissent from the New Orthodoxy, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES 311 (Daniel M. Shea & John C. Green eds., 1994).
58. ALDRICH, supra note 14, at 289.
59. ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 115 (1957).
60. See ANGELO PANEBIANCO, POLITICAL PARTIES: ORGANIZATION AND POWER (1988).
61. See Kramer, Federalism, supra note 10, at 1524.
62. See ALDRICH, supra note 14.
63. See THOMAS BYRNE EDSALL & MARY D. EDSALL, CHAIN REACTION: THE IMPACT OF RACE, RIGHTS AND TAXES ON AMERICAN POLITICS (1991).
64. See id.; Paul Frymer & John David Skrentny, Coalition-Building and the Politics of Electoral Capture During the Nixon Administration: African Americans, Labor, Latinos, 12 STUD. AM. POL. DEV. 131 (1998).
65. Even in the 1930s through the 1950s, however, national pressures seemed to be eroding state representation. See JAMES MACGREGOR BURNS, ROOSEVELT: THE LION AND THE FOX 198-202 (1956); PAUL T. DAVID, MALCOLM MOOS & RALPH M. GOLDMAN, PRESIDENTIAL NOMINATING POLITICS IN 1952: THE NATIONAL STORY 191-93 (1954).
66. Even in the 1930s through the 1950s, however, national pressures seemed to be eroding state representation. See JAMES MACGREGOR BURNS, ROOSEVELT: THE LION AND THE FOX 198-202 (1956); PAUL T. DAVID, MALCOLM MOOS & RALPH M. GOLDMAN, PRESIDENTIAL NOMINATING POLITICS IN 1952: THE NATIONAL STORY 191-93 (1954).
67. DAVID R. MAYHEW, PLACING PARTIES IN AMERICAN POLITICS: ORGANIZATION, ELECTORAL SETTINGS, AND GOVERNMENT ACTIVITY IN THE TWENTIETH CENTURY 205 (1986).
68. See SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES: THE TRANSFORMATION OF THE AMERICAN PARTY SYSTEM SINCE THE NEW DEAL 138-39 (1993) (referring to the influence of state and local public employees over elections in comparison to federal public officials); DAVID, MOOS & GOLDMAN, supra note 48 (emphasizing the importance of state actors in determining presidential nominations); John F. Manley, The House Committee on Ways and Means: Conflict Management in a Congressional Committee, 59 AM. POL. SCI. REV. 927, 936-37 (1965) (on the importance of constituencies dominating congressional behavior); William G. Mayer, A Brief History of Vice Presidential Selection, in IN PURSUIT OF THE WHITE HOUSE 2000: HOW WE CHOOSE OUR PRESIDENTIAL NOMINEES 329-30 (William G. Mayer ed., 2001) (recounting the necessity of Democratic Party presidential nominee James M. Cox in 1920 picking a running mate contingent on the acceptance of party bosses). Moreover, between 1832 and 1936 the Democratic Party maintained a "two-thirds rule" in nominating presidential candidates. To be selected as the party's nominee, a candidate had to receive two-thirds of the party's delegates - not the simple majority that governs nominations today. As a result, southern states that were a minority of the party's coalition maintained veto power over the party's selection, thereby preventing candidates who were too liberal on civil rights matters. See ALDRICH, supra note 14, at 129-133.
69. See SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES: THE TRANSFORMATION OF THE AMERICAN PARTY SYSTEM SINCE THE NEW DEAL 138-39 (1993) (referring to the influence of state and local public employees over elections in comparison to federal public officials); DAVID, MOOS & GOLDMAN, supra note 48 (emphasizing the importance of state actors in determining presidential nominations); John F. Manley, The House Committee on Ways and Means: Conflict Management in a Congressional Committee, 59 AM. POL. SCI. REV. 927, 936-37 (1965) (on the importance of constituencies dominating congressional behavior); William G. Mayer, A Brief History of Vice Presidential Selection, in IN PURSUIT OF THE WHITE HOUSE 2000: HOW WE CHOOSE OUR PRESIDENTIAL NOMINEES 329-30 (William G. Mayer ed., 2001) (recounting the necessity of Democratic Party presidential nominee James M. Cox in 1920 picking a running mate contingent on the acceptance of party bosses). Moreover, between 1832 and 1936 the Democratic Party maintained a "two-thirds rule" in nominating presidential candidates. To be selected as the party's nominee, a candidate had to receive two-thirds of the party's delegates - not the simple majority that governs nominations today. As a result, southern states that were a minority of the party's coalition maintained veto power over the party's selection, thereby preventing candidates who were too liberal on civil rights matters. See ALDRICH, supra note 14, at 129-133.
70. See SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES: THE TRANSFORMATION OF THE AMERICAN PARTY SYSTEM SINCE THE NEW DEAL 138-39 (1993) (referring to the influence of state and local public employees over elections in comparison to federal public officials); DAVID, MOOS & GOLDMAN, supra note 48 (emphasizing the importance of state actors in determining presidential nominations); John F. Manley, The House Committee on Ways and Means: Conflict Management in a Congressional Committee, 59 AM. POL. SCI. REV. 927, 936-37 (1965) (on the importance of constituencies dominating congressional behavior); William G. Mayer, A Brief History of Vice Presidential Selection, in IN PURSUIT OF THE WHITE HOUSE 2000: HOW WE CHOOSE OUR PRESIDENTIAL NOMINEES 329-30 (William G. Mayer ed., 2001) (recounting the necessity of Democratic Party presidential nominee James M. Cox in 1920 picking a running mate contingent on the acceptance of party bosses). Moreover, between 1832 and 1936 the Democratic Party maintained a "two-thirds rule" in nominating presidential candidates. To be selected as the party's nominee, a candidate had to receive two-thirds of the party's delegates - not the simple majority that governs nominations today. As a result, southern states that were a minority of the party's coalition maintained veto power over the party's selection, thereby preventing candidates who were too liberal on civil rights matters. See ALDRICH, supra note 14, at 129-133.
71. See SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES: THE TRANSFORMATION OF THE AMERICAN PARTY SYSTEM SINCE THE NEW DEAL 138-39 (1993) (referring to the influence of state and local public employees over elections in comparison to federal public officials); DAVID, MOOS & GOLDMAN, supra note 48 (emphasizing the importance of state actors in determining presidential nominations); John F. Manley, The House Committee on Ways and Means: Conflict Management in a Congressional Committee, 59 AM. POL. SCI. REV. 927, 936-37 (1965) (on the importance of constituencies dominating congressional behavior); William G. Mayer, A Brief History of Vice Presidential Selection, in IN PURSUIT OF THE WHITE HOUSE 2000: HOW WE CHOOSE OUR PRESIDENTIAL NOMINEES 329-30 (William G. Mayer ed., 2001) (recounting the necessity of Democratic Party presidential nominee James M. Cox in 1920 picking a running mate contingent on the acceptance of party bosses). Moreover, between 1832 and 1936 the Democratic Party maintained a "two-thirds rule" in nominating presidential candidates. To be selected as the party's nominee, a candidate had to receive two-thirds of the party's delegates - not the simple majority that governs nominations today. As a result, southern states that were a minority of the party's coalition maintained veto power over the party's selection, thereby preventing candidates who were too liberal on civil rights matters. See ALDRICH, supra note 14, at 129-133.
72. See SIDNEY M. MILKIS, THE PRESIDENT AND THE PARTIES: THE TRANSFORMATION OF THE AMERICAN PARTY SYSTEM SINCE THE NEW DEAL 138-39 (1993) (referring to the influence of state and local public employees over elections in comparison to federal public officials); DAVID, MOOS & GOLDMAN, supra note 48 (emphasizing the importance of state actors in determining presidential nominations); John F. Manley, The House Committee on Ways and Means: Conflict Management in a Congressional Committee, 59 AM. POL. SCI. REV. 927, 936-37 (1965) (on the importance of constituencies dominating congressional behavior); William G. Mayer, A Brief History of Vice Presidential Selection, in IN PURSUIT OF THE WHITE HOUSE 2000: HOW WE CHOOSE OUR PRESIDENTIAL NOMINEES 329-30 (William G. Mayer ed., 2001) (recounting the necessity of Democratic Party presidential nominee James M. Cox in 1920 picking a running mate contingent on the acceptance of party bosses). Moreover, between 1832 and 1936 the Democratic Party maintained a "two-thirds rule" in nominating presidential candidates. To be selected as the party's nominee, a candidate had to receive two-thirds of the party's delegates - not the simple majority that governs nominations today. As a result, southern states that were a minority of the party's coalition maintained veto power over the party's selection, thereby preventing candidates who were too liberal on civil rights matters. See ALDRICH, supra note 14, at 129-133.
73. CORNELIUS P. COTTER & BERNARD C. HENNESSY, POLITICS WITHOUT POWER: THE NATIONAL PARTY COMMITTEES (1964).
74. WILLIAM H. RIKER, FEDERALISM: ORIGIN, OPERATION, SIGNIFICANCE 91, 101 (1964).
75. See MARTIN SHEFTER, POLITICAL PARTIES AND THE STATE: THE AMERICAN HISTORICAL EXPERIENCE 75-81 (1994).
76. See id. at 84; MILKIS, supra note 50.
77. See AMY BRIDGES, MORNING GLORIES: MUNICIPAL REFORM IN THE SOUTHWEST 218-22 (1997); STEVEN P. ERIE, RAINBOW'S END: IRISH-AMERICANS AND THE DILEMMAS OF URBAN MACHINE POLITICS, 1840-1985, at 183-90 (1988); PAUL KLEPPNER, CHICAGO DIVIDED: THE MAKING OF A BLACK MAYOR 10-11 (1985); MANNING MARABLE, BLACK AMERICAN POLITICS: FROM THE WASHINGTON MARCHES TO JESSE JACKSON 191-246 (1985).
78. See AMY BRIDGES, MORNING GLORIES: MUNICIPAL REFORM IN THE SOUTHWEST 218-22 (1997); STEVEN P. ERIE, RAINBOW'S END: IRISH-AMERICANS AND THE DILEMMAS OF URBAN MACHINE POLITICS, 1840-1985, at 183-90 (1988); PAUL KLEPPNER, CHICAGO DIVIDED: THE MAKING OF A BLACK MAYOR 10-11 (1985); MANNING MARABLE, BLACK AMERICAN POLITICS: FROM THE WASHINGTON MARCHES TO JESSE JACKSON 191-246 (1985).
79. See AMY BRIDGES, MORNING GLORIES: MUNICIPAL REFORM IN THE SOUTHWEST 218-22 (1997); STEVEN P. ERIE, RAINBOW'S END: IRISH-AMERICANS AND THE DILEMMAS OF URBAN MACHINE POLITICS, 1840-1985, at 183-90 (1988); PAUL KLEPPNER, CHICAGO DIVIDED: THE MAKING OF A BLACK MAYOR 10-11 (1985); MANNING MARABLE, BLACK AMERICAN POLITICS: FROM THE WASHINGTON MARCHES TO JESSE JACKSON 191-246 (1985).
80. See AMY BRIDGES, MORNING GLORIES: MUNICIPAL REFORM IN THE SOUTHWEST 218-22 (1997); STEVEN P. ERIE, RAINBOW'S END: IRISH-AMERICANS AND THE DILEMMAS OF URBAN MACHINE POLITICS, 1840-1985, at 183-90 (1988); PAUL KLEPPNER, CHICAGO DIVIDED: THE MAKING OF A BLACK MAYOR 10-11 (1985); MANNING MARABLE, BLACK AMERICAN POLITICS: FROM THE WASHINGTON MARCHES TO JESSE JACKSON 191-246 (1985).
81. ERIE, supra note 55, at 181-190; SHEFTER, supra note 53, at 233.
82. ERIE, supra note 55, at 181-190; SHEFTER, supra note 53, at 233.
83. See Rutan v. Republican Party, 497 U.S. 62 (1990) (party affiliation not an "appropriate requirement" for hiring, transferring, recalling, or promoting public employees); Elrod v. Burns, 427 U.S. 347 (1976) (deciding that Chicago Democratic party organization was not allowed to fire public employees on the basis of party affiliation).
84. See WALTER DEAN BURNHAM, THE CURRENT CRISIS IN AMERICAN POLITICS (1982).
85. See ALAN WARE, THE BREAKDOWN OF DEMOCRATIC PARTY ORGANIZATION, 1940-1980 (1985).
86. See PHILIP A. KLINKER, THE LOSING PARTIES: OUT-PARTY NATIONAL COMMITTEES, 1956-1993 88-104 (1994). To clarify, much of the subsequent discussion on party reforms necessarily focuses on the Democrats and not the Republicans because it has been the Democrats who have been most active in initiating the reforms. In large part, the Republicans have followed along, though often with important variants.
87. See id. at 97.
88. NELSON W. POLSBY, CONSEQUENCES OF PARTY REFORM 131-156 (1983).
89. See, e.g., BYRON E. SKAFER, QUIET REVOLUTION: THE STRUGGLE FOR THE DEMOCRATIC PARTY AND THE SHAPING OF POST-REFORM POLITICS (1983).
90. See POLSBY, supra note 62, at 147.
91. SHAFER, supra note 63, at 252.
92. See THOMAS E. PATTERSON, OUT OF ORDER 216 (1993).
93. See GARY C. JACOBSON, THE POLITICS OF CONGRESSIONAL ELECTIONS 63 (1987); FRANK J. SORAUF INSIDE CAMPAIGN FINANCE: MYTHS AND REALITIES 30 (1992) (finding in 1990 that party contributions to candidates represented only 1% of total campaign contributions).
94. See GARY C. JACOBSON, THE POLITICS OF CONGRESSIONAL ELECTIONS 63 (1987); FRANK J. SORAUF INSIDE CAMPAIGN FINANCE: MYTHS AND REALITIES 30 (1992) (finding in 1990 that party contributions to candidates represented only 1% of total campaign contributions).
95. 424 U.S. 1 (1976).
96. JEFFREY M. BERRY, THE INTEREST GROUP SOCIETY 120-22 (1989).
97. See MARTIN P. WATTENBERG, THE DECLINE OF AMERICAN POLITICAL PARTIES, 1952-1994 (1996).
98. Gary C. Jacobson, Divided Government and the 1994 Elections, in DIVIDED GOVERNMENT: CHANGE, UNCERTAINTY, AND THE CONSTITUTIONAL ORDER 61, 62-63 (Peter F. Galderisi et al. eds., 1996).
99. See Morris P. Fiorina, The Causes and Consequences of Divided Government: Lessons of 1992-1994 in DIVIDED GOVERNMENT, supra note 71, at 35, 55-56.
100. See Paul Frymer, Thomas P. Kim & Terri L. Bimes, Party Elites, Ideological Voters, and Divided Party Government, 22 LEGIS. STUD. Q. 195 (1997).
101. See BURNHAM, supra note 58, at 121-65.
102. See PAUL S. HERRNSON, PARTY CAMPAIGNING IN THE 1980s (1988); ROBIN KOLODNY, PURSUING MAJORITIES: CONGRESSIONAL CAMPAIGN COMMITTEES IN AMERICAN POLITICS (1998).
103. See PAUL S. HERRNSON, PARTY CAMPAIGNING IN THE 1980s (1988); ROBIN KOLODNY, PURSUING MAJORITIES: CONGRESSIONAL CAMPAIGN COMMITTEES IN AMERICAN POLITICS (1998).
104. David Dodenhoff & Ken Goldstein, Resources, Racehorses, and Rules: Nominations in the 1990s, in THE PARTIES RESPOND: CHANGES IN AMERICAN PARTIES AND CAMPAIGNS 170, 183 (L. Sandy Maisel ed., 3d ed. 1998).
105. Id. at 183-186.
106. George W. Bush, for example, had raised $57 million from wealthy donors and interest groups by mid-1999, leading other candidates to immediately drop out of the race before a single vote had been cast in the presidential primaries. Steve Forbes, meanwhile, spent $37 million of his own money in 1996. Kevin Merida, Texas Two-Step: Run and Cut, WASH. POST, Oct. 28, 1999, at Cl.
107. William Crotty, Political Parties in the 1996 Election: The Party as Team or the Candidates as Superstars?, in THE PARTIES RESPOND, supra note 76, at 202, 204 ("The role of the political parties on the national level is best understood as an extension, for better or worse, of the presidential candidate's campaign.").
108. See Anthony Corrado, The Politics of Cohesion: The Role of the National Party Committees in the 1992 Election, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES 61 (Daniel M. Shea & John C. Green eds., 1994).
109. See KLINKNER, supra note 60, at 155-91; Corrado, supra note 80; Jon F. Hale, The Democratic Leadership Council: Institutionalizing a Party Faction, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES, supra note 80, at 249.
110. See KLINKNER, supra note 60, at 155-91; Corrado, supra note 80; Jon F. Hale, The Democratic Leadership Council: Institutionalizing a Party Faction, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES, supra note 80, at 249.
111. See KLINKNER, supra note 60, at 155-91; Corrado, supra note 80; Jon F. Hale, The Democratic Leadership Council: Institutionalizing a Party Faction, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES, supra note 80, at 249.
112. Dodenhoff & Goldstein, supra note 76, at 196.
113. Id. at 174.
114. Steven Greenhouse, Buchanan Criticizes G.O.P. Primary Rules, N.Y. TIMES, Nov. 21, 1995, at B6.
115. See id.
116. See KLINKNER, supra note 60, at 185-86.
117. KENNETH S. BAER, REINVENTING DEMOCRATS: THE POLITICS OF LIBERALISM FROM REAGAN TO CLINTON 100-01 (2000).
118. Id. at 103; see also KLINKNER, supra note 60, at 186 (noting that the DNC supported Super Tuesday because "it provided the party with another way to help shed its 'special interest' label and also allowed the constituency served by the [Democratic Leadership Council], southern, white moderates, to believe that the party was responsive to their demands").
119. See FRYMER, supra note 21, at 116-17.
120. Jonathan Bernstein, The New New Presidential Elite, in IN PURSUIT OF THE WHITE HOUSE 2000: HOW WE CHOOSE OUR PRESIDENTIAL NOMINEES, supra note 50, at 171-72.
121. Democratic Party of United States v. Wisconsin ex rel LaFollette, 450 U.S. 107 (1981).
122. Wigoda v. Cousins, 302 N.E.2d 614, 629 (1973).
123. Cousins v. Wigoda, 419 U.S. 477, 489-90 (1975).
124. Id. at 490.
125. LaFollette, 450 U.S.at 112.
126. Id. at 122.
127. See Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.), summarily aff'd, 429 U.S. 989 (1976) (upholding district court decision preventing an independent voter from voting in the Republican primary).
128. 479 U.S. 208 (1986).
129. See id. at 217-25.
130. 489 U.S. 214 (1989).
131. Id. at 217.
132. Id. at 223.
133. See id. at 224.
134. 530 U.S. 567 (2000).
135. See id. at 582-84.
136. Frank J. Sorauf, Political Parties and the New World of Campaign Finance, in THE PARTIES RESPOND: CHANGES IN AMERICAN PARTIES AND CAMPAIGNS, supra note 76, at 222, 231.
137. Id. at 238; Stephen Ansolabehere & James M. Snyder, Jr., Soft Money, Hard Money, Strong Parties, 100 COLUM. L. REV. 598 (2000).
138. There is also a new form of soft money: in the 2000 elections some Senate candidates - notably Hillary Clinton and John Ashcroft - established joint fundraising committees that collected both soft and hard money contributions.
139. The distinction between soft and hard money contributions can perhaps be best illustrated by an example: A political advertisement that states, "Vote for Candidate X because . . . ,"must come from hard money contributions, because its message directly advocates on behalf of a candidate. A political advertisement that states, however, "Candidate Y has supported the following [ostensibly 'detrimental policies]; be sure to vote," is technically an educational advertisement and not a political advocacy advertisement and therefore can be funded via soft money. The substantive difference between the two types of advertisements, of course, is often semantic.
140. See Ray La Raja & Elizabeth Jarvis-Shean, Assessing the Impact of a Ban on Soft Money: Party Soft Money Spending in the 2000 Elections, Policy Brief for the Institute of Governmental Studies and Citizen's Research Foundation 3 (2001) (on file with authors) (noting that in the 2000 elections, national parties spent over 40% of their soft money on "administrative and overhead," and state parties spent nearly 30% for this purpose).
141. Press Release, Federal Election Commission, FEC Reports on Political Activity for 1997-98, at http.//www.fec.gov/press/ptyye98.htm (Apr. 9, 1999) (listing party contributions, coordinated expenditures, and independent expenditures for each 1998 general election candidate). The statistics and graphs that follow in this text are drawn from this dataset.
142. The five candidates were Loretta Sanchez (Democrat of California), Robert Doman (Republican of California), Richard Gephardt (Democrat of Missouri), Phillip Maloof (Democrat of New Mexico), and Newt Gingrich (Republican of Georgia).
143. The two candidates were Richard Gephardt (Democrat of Missouri) and Floyd Spence (Republican of South Carolina).
144. Table compiled by authors from data available from The Center for Responsive Politics, a nonpartisan, non-profit research group based in Washington, D.C. that tracks money in politics, and its effect on elections and public policy. The data is available in annual reports and on their website at http://www.opensecrets.org. Data set created from these reports on file with the authors.
145. This difference is statistically significant at the 0.01 level. This subgroup also had a higher margin of victory in their election race, although this difference was not statistically significant.
146. This difference is statistically significant at the 0.01 level. This included Richard Gephardt (Minority Leader) David Bonior (Minority Whip), C.W. Young (chairman of the Appropriations Committee), and David Obey (ranking member of the Appropriations Committee).
147. This difference is statistically significant at the 0.01 level. This subgroup also had a higher margin of victory in their election race, but as with the House, this difference was not statistically significant.
148. This difference is statistically significant at the 0.01 level. This includes, among others, Tom Daschle (Senate Majority Leader), Christopher Dodd (chairman of the Rules Committee), Ted Kennedy (chairman of the Health and Education Committee), and Orrin Hatch (ranking member of the Judiciary Committee).
149. Table compiled by authors from the Virginia Public Access Project on the website, http:www.vpap.org. Data set created from these report on file with the authors. For a few of the members, some of their data were missing. This explains why an average figure may not simply be 1/100 of the total figure.
150. We could also measure how much of the contributions from the top ten zip codes compared with the total amount the candidate raised. On average, the amount raised in the top ten zip codes represented 57.2% of the total amount the representatives raised in direct contributions.
151. Table compiled by authors from the Virginia Public Access Project on the website, http://www.vpap.org. Data set created from these reports on file with the authors. For a few of the members, some of their data were missing. This explains why an average figure may not simply be 1/100 of the total figure.
152. Marianne Holt, The Surge in Party Money in Competitive 1998 Congressional Elections, in OUTSIDE MONEY: SOFT MONEY AND ISSUE ADVOCACY IN THE 1998 CONGRESSIONAL ELECTIONS 17, 19 (David B. Magleby ed., 2000).
153. Ansolabehere & Snyder, supra note 107, at 613-15.
154. Bibby & Holbrook, supra note 17, at 74.
155. See La Raja & Jarvis-Shean, supra note 110, at 4.
156. See id. at 2.
157. Bibby & Holbrook, supra note 17, at 74.
158. Id. at 75.
159. Victoria A. Farrar-Myers & Diana Dwyre, Parties and Campaign Finance, in AMERICAN POLITICAL PARTIES: DECLINE OR RESURGENCE? 149 (Jeffrey E. Cohen, Richard Fleisher & Paul Kantor eds., 2001).
160. The election results are available from the Open Secrets website, http://www.opensecrets.org/ politicians/candliststate.asp.
161. Bibby & Holbrook, supra 17, at 85.
162. See Gary F. Moncrief, Candidate Spending in State Legislative Races, in CAMPAIGN FINANCE IN STATE LEGISLATIVE ELECTIONS 43 (Joel A. Thompson & Gary F. Moncrief eds., 1998) (reporting that the mean total expenditures by candidates in state house races in 1994 varied from $322,688 in California to $3,947 in Maine).
163. See Anthony Gierzynski & David A. Breaux, The Financing Role of Parties, in id. at 187.
164. Press Release, Federal Election Commission, FEC Reports on Political Activity for 1997-98, at http://www.fec.gov/press/ptyye98.htm (Apr. 9, 1999).
165. In 1996, corporate PACS spent $18 million in Senate elections, and $51 million in House elections. Health care PACS added another $12 million and $44 million respectively. See 1995-96 Financial Activity of All Senate and House Campaign, at http://www.fec.gov/finance/allsum.htm (last visited Feb. 28, 2002).
166. Sorauf, supra note 106, at 227.
167. John F. Bibby, Party Networks: National-State Integration, Allied Groups, and Issue Activists, in THE STATE OF THE PARTIES: THE CHANGING ROLE OF CONTEMPORARY AMERICAN PARTIES 69, 75 (John C. Green & Daniel M. Shea eds., 1999).
168. Sorauf, supra note 106, at 239.
169. Bibby & Holbrook, supra note 17, at 85.
170. See. e.g., Donald P. Green & Jonathan S. Krasno, Salvation for the Spendthrift Incumbent: Reestimating the Effects of Campaign Spending on House Elections, 32 AM. J. POL. SCI. 884 (1988).
171. Rakove, supra note 32, at 63-68.
172. See also Helen Dewar & Guy Gugliotta, In Campaign Finance, One Party's 'Level Playing Field'ls Another's Shaky Ground, WASH. POST, Apr. 7, 1997, at A6.
173. THOMAS FERGUSON & JOEL ROGERS, RIGHT TURN: THE DECLINE OF THE DEMOCRATS AND THE FUTURE OF AMERICAN POLITICS (1981); Marie Hojnacki & David C. Kimball, PAC Contributions and Lobbying Contacts in Congressional Committees, 54 POL. RES. Q. 161 (2001); Woodrow Jones, Jr. & K. Robert Keiser, Issue Visibility and the Effects of PAC Money, 68 SOC. SCI. Q. 170 (1987); Richard A. Smith, Interest Group Influence in the U.S. Congress, 20 LEGIS. STUD. Q. 89 (1995).
174. THOMAS FERGUSON & JOEL ROGERS, RIGHT TURN: THE DECLINE OF THE DEMOCRATS AND THE FUTURE OF AMERICAN POLITICS (1981); Marie Hojnacki & David C. Kimball, PAC Contributions and Lobbying Contacts in Congressional Committees, 54 POL. RES. Q. 161 (2001); Woodrow Jones, Jr. & K. Robert Keiser, Issue Visibility and the Effects of PAC Money, 68 SOC. SCI. Q. 170 (1987); Richard A. Smith, Interest Group Influence in the U.S. Congress, 20 LEGIS. STUD. Q. 89 (1995).
175. THOMAS FERGUSON & JOEL ROGERS, RIGHT TURN: THE DECLINE OF THE DEMOCRATS AND THE FUTURE OF AMERICAN POLITICS (1981); Marie Hojnacki & David C. Kimball, PAC Contributions and Lobbying Contacts in Congressional Committees, 54 POL. RES. Q. 161 (2001); Woodrow Jones, Jr. & K. Robert Keiser, Issue Visibility and the Effects of PAC Money, 68 SOC. SCI. Q. 170 (1987); Richard A. Smith, Interest Group Influence in the U.S. Congress, 20 LEGIS. STUD. Q. 89 (1995).
176. THOMAS FERGUSON & JOEL ROGERS, RIGHT TURN: THE DECLINE OF THE DEMOCRATS AND THE FUTURE OF AMERICAN POLITICS (1981); Marie Hojnacki & David C. Kimball, PAC Contributions and Lobbying Contacts in Congressional Committees, 54 POL. RES. Q. 161 (2001); Woodrow Jones, Jr. & K. Robert Keiser, Issue Visibility and the Effects of PAC Money, 68 SOC. SCI. Q. 170 (1987); Richard A. Smith, Interest Group Influence in the U.S. Congress, 20 LEGIS. STUD. Q. 89 (1995).
177. DAN CLAWSON, ALAN NEUSTADTL & DENISE SCOTT, MONEY TALKS: CORPORATE PACS AND POLITICAL INFLUENCE (1992); Laura I. Langbein, Money and Access: Some Empirical Evidence, 48 J. POL. 1052, 1057-61 (1993).
178. DAN CLAWSON, ALAN NEUSTADTL & DENISE SCOTT, MONEY TALKS: CORPORATE PACS AND POLITICAL INFLUENCE (1992); Laura I. Langbein, Money and Access: Some Empirical Evidence, 48 J. POL. 1052, 1057-61 (1993).
179. See Diana Evans, Before the Roll Call: Interest Group Lobbying and Public Outcomes in House Committees, 49 POL. RES. Q. 287 (1996) (finding a relationship between contributions and committee member behavior); S.B. Gordon, All Votes are Not Created Equal: Campaign Contributions and Critical Votes, 63 J. POL. 249 (2001) (finding a relationship between campaign contributions and legislator votes in close roll calls); Richard L. Hall & Frank W. Wayman, Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees, 84 AMER. POL. SCI. REV. 797, 809-15 (1990) (finding that the greater the contributions to members of Congress, the more consistent the members' voting and behind the scenes activity was with the interest group).
180. See Diana Evans, Before the Roll Call: Interest Group Lobbying and Public Outcomes in House Committees, 49 POL. RES. Q. 287 (1996) (finding a relationship between contributions and committee member behavior); S.B. Gordon, All Votes are Not Created Equal: Campaign Contributions and Critical Votes, 63 J. POL. 249 (2001) (finding a relationship between campaign contributions and legislator votes in close roll calls); Richard L. Hall & Frank W. Wayman, Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees, 84 AMER. POL. SCI. REV. 797, 809-15 (1990) (finding that the greater the contributions to members of Congress, the more consistent the members' voting and behind the scenes activity was with the interest group).
181. See Diana Evans, Before the Roll Call: Interest Group Lobbying and Public Outcomes in House Committees, 49 POL. RES. Q. 287 (1996) (finding a relationship between contributions and committee member behavior); S.B. Gordon, All Votes are Not Created Equal: Campaign Contributions and Critical Votes, 63 J. POL. 249 (2001) (finding a relationship between campaign contributions and legislator votes in close roll calls); Richard L. Hall & Frank W. Wayman, Buying Time: Moneyed Interests and the Mobilization of Bias in Congressional Committees, 84 AMER. POL. SCI. REV. 797, 809-15 (1990) (finding that the greater the contributions to members of Congress, the more consistent the members' voting and behind the scenes activity was with the interest group).
182. Fred Monardi & Stanton A. Glantz, Are Tobacco Industry Campaign Contributions Influencing State Legislative Behavior?, 88 AMER. J. PUB. HEALTH 918 (1998).
183. BERRY, supra note 69, at 132.
184. United States v. Int'l Union United Auto., Aircraft & Agric. Implement Workers, 352 U.S. 567, 576 (1957) (quoting 65 CONG. REC. 9507-9508 (1924)).
185. See supra note 33.
186. See Sarah A. Binder, The Partisan Basis of Procedural Choice: Allocating Parliamentary Rights in the House, 1789-1990, 90 AMER. POL. SCI. REV. 8 (1996); Eric Schickler & Andrew Rich, Controlling the Floor: Parties as Procedural Coalitions in the House, 41 AMER. J. POL. SCI. 1340, 1372 (1997).
187. See Sarah A. Binder, The Partisan Basis of Procedural Choice: Allocating Parliamentary Rights in the House, 1789-1990, 90 AMER. POL. SCI. REV. 8 (1996); Eric Schickler & Andrew Rich, Controlling the Floor: Parties as Procedural Coalitions in the House, 41 AMER. J. POL. SCI. 1340, 1372 (1997).
188. See DAVID W. ROHDE, PARTIES AND LEADERS IN THE POSTREFORM HOUSE 20-23 (1991).
189. Id. at 17-34.
190. Because the South prior to 1965 lacked significant party competition, Democrats from the region generally won reelection until they decided to retire, and as a result, dominated committee leadership positions.
191. See ROHDE, supra note 151, at 98. The Speaker is chosen via a House vote that is inevitably a strict party-line.
192. For an overview, see id. at 98-105; STANLEY BACH & STEVEN S. SMITH, MANAGING UNCERTAINTY IN THE HOUSE OF REPRESENTATIVES: ADAPTATION AND INNOVATION IN SPECIAL RULES (1988); WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS (4th ed. 1996); BARBARA SINCLAIR, LEGISLATORS, LEADERS, AND LAWMAKING: THE U.S. HOUSE OF REPRESENTATIVES IN THE POSTREFORM ERA 136-62 (1995); Douglas Dion & John D. Huber, Procedural Choice and the House Committee on Rules, 58 J. POL. 25 (1996).
193. For an overview, see id. at 98-105; STANLEY BACH & STEVEN S. SMITH, MANAGING UNCERTAINTY IN THE HOUSE OF REPRESENTATIVES: ADAPTATION AND INNOVATION IN SPECIAL RULES (1988); WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS (4th ed. 1996); BARBARA SINCLAIR, LEGISLATORS, LEADERS, AND LAWMAKING: THE U.S. HOUSE OF REPRESENTATIVES IN THE POSTREFORM ERA 136-62 (1995); Douglas Dion & John D. Huber, Procedural Choice and the House Committee on Rules, 58 J. POL. 25 (1996).
194. For an overview, see id. at 98-105; STANLEY BACH & STEVEN S. SMITH, MANAGING UNCERTAINTY IN THE HOUSE OF REPRESENTATIVES: ADAPTATION AND INNOVATION IN SPECIAL RULES (1988); WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS (4th ed. 1996); BARBARA SINCLAIR, LEGISLATORS, LEADERS, AND LAWMAKING: THE U.S. HOUSE OF REPRESENTATIVES IN THE POSTREFORM ERA 136-62 (1995); Douglas Dion & John D. Huber, Procedural Choice and the House Committee on Rules, 58 J. POL. 25 (1996).
195. For an overview, see id. at 98-105; STANLEY BACH & STEVEN S. SMITH, MANAGING UNCERTAINTY IN THE HOUSE OF REPRESENTATIVES: ADAPTATION AND INNOVATION IN SPECIAL RULES (1988); WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS (4th ed. 1996); BARBARA SINCLAIR, LEGISLATORS, LEADERS, AND LAWMAKING: THE U.S. HOUSE OF REPRESENTATIVES IN THE POSTREFORM ERA 136-62 (1995); Douglas Dion & John D. Huber, Procedural Choice and the House Committee on Rules, 58 J. POL. 25 (1996).
196. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 62 (1974).
197. Id.
198. See id. at 53.
199. See GARY C. JACOBSON, THE POLITICS OF CONGRESSIONAL ELECTIONS 25-58 (1987).
200. See CHOPER, supra note 2, at 176-81.
201. See RHODE, supra note 151, at 20-28.
202. 521 U.S. 898 (1997).
203. Printz, 521 U.S. at 930. Under the present law, for example, it will be the CLEO and not some federal official who stands between the gun purchaser and immediate possession of his gun. And it will likely be the CLEO, not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected.
204. For Court discussion of the limits of political safeguards, see supra note 6.
205. 521 U.S. at 928-30.
206. See President Signs "Brady" Gun Control Law, 1993 CQ ALMANAC 300.
207. See Thomas: Legislative Information on the Internet, at http://thomas.loc.gov, a service of the Library of Congress, which provides the information for all Congressional legislation beginning with the 101st Congress. In particular, see S. 1236, 101st Cong. (1989).
208. H.R. 467, 101st Cong. (1990).
209. The Senate approved The Violent Crime Control Act of 1991, S. 1241, 102d Cong., while the House approved The Omnibus Crime Control Act of 1991, H.R. 3371, 102d Cong.
210. See No Compromise Forged on Crime Bill, 1992 CQ ALMANAC 311.
211. In the Senate, 60 votes are needed to pass cloture, and effectively end a filibuster. The vote on the first filibuster was 54-43, with Republicans voting 4-38, and Democrats voting 50-5. On the second filibuster, the vote was 55-43, with Republicans voting 3-39, and Democrats voting 52-4. See Senate Votes, 1991 CQ ALMANAC 36-S, 38-S.
212. See The Brady Handgun Violence Prevention Act, S. 3282, 102d Cong. (1992).
213. See The Violent Crime Control and Law Enforcement Act of 1993, H.R. 3131, 103d Cong.
214. See Paul Frymer, Ideological Consensus Within Divided Party Government, 109 POL. SCI. Q. 187 (1994).
215. See President Signs "Brady" Gun Control Law, supra note 166, at 301.
216. See 139 CONG. REC. 28,527 (1993) (emphasis added).
217. These failed amendments are discussed in 139 CONG. REC. 28,527 (1993).
218. Representatives Moakley and Gordon, both Democrats, did not vote in any of the amendment votes.
219. See 139 CONG. REC. 28,528-29 (1993).
220. Solomon submitted a chart showing that the use of restrictive rules grew from 15% of legislation in 1977-78 to 43% in 1985-1986 to 74% in 1993-94. See 139 CONG. REC. 28,529 (1993).
221. See 139 CONG. REC. 28,532 (1993).
222. Of the four members of the Rules Committees who voted against the rule, all voted against it on the floor.
223. See House Votes, 1993 CQ ALMANAC 136-H. These amendments will be discussed in greater detail, infra.
224. The House floor vote was 238-189, with Republicans voting 54-199, and Democrats voting 184-69. See id. at 138-H.
225. Id. at 136-H to 139-H These tables were compiled by the authors, and are available on file. We compared the voting on Roll Call 564 (the passage vote for the Brady Bill) with Roll Call 557 (vote on H Res 302). Specifically, two Democrats (Foley and Moakley) did not vote on either the resolution or the final floor bill. One independent (Sanders) voted for the resolution but against the final floor bill; one Republican (Ewing) voted for the resolution but against the final floor bill. Conversely two Republicans (McCandless and Shuster) voted against the resolution but did not vote on the final floor bill. As discussed in the text, 49 Democrats voted for the resolution but against the final floor bill, while 41 Republicans voted against the resolution but voted for the final floor bill. Four Democrat (Condit, Cooper Hutto, and Minge) voted against the resolution but voted for the final floor bill, while four Republicans (Bartlett, Bentley, Hunter, and Michel) did not vote on the resolution but voted againts the final floor bill. One Republican (Morella) did not vote on the resolution but voted for the final floor bill; one Democrat (de la Garza) did not vote on the resolution and voted against the final floor bill; and five Democrats (Dellums, McCloskey, Rangel, Slattery, and Torricelli) did not vote on the resolution but voted for the final floor bill.
226. The 49 Democrats who voted for the rule but against the bill came from congressional districts that on average supported Bill Clinton at a rate of 43.5% in the 1992 presidential election, just under Clinton's vote percentage nationwide. In contrast, the 22 Democrats who voted against both the rule and the bill came from districts that on average supported Clinton at a rate of 41.4%, while the 176 Democrats who voted both for the rule and the bill came from districts that on average supported Clinton at a rate of 54.5%. These averages were compiled from district electoral data in Michael Barone & Grant Ujifusa, ALMANAC OF AMERICAN POLITICS 1994 (1993).
227. Merritt, supra note 7, at 1574.