Entrenching the duopoly: Why the Supreme Court should not allow the states to protect the democrats and republicans from political competition

Supreme Court Review

Volumn 1997, Issue 1, 1997, Pages 331-371

  Hasen, Richard L ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347203017     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1997.3109745     Document Type: Article

References (301)

1. 117 S Ct 1364 (1997).
2. Peter H. Argersinger, "A Place on the Ballot": Fusion Politics and Antifusion Laws, 85 Am Hist Rev 287, 288 (1980).
3. See Part I.
4. See Part III.
5. John B. Anderson and Jeffrey L. Freeman, Taking the First Steps Towards a Multiparty System in the United States, 21 Fletcher Forum World Affairs 73, 81 (Spring 1997) (affirmance of 8th Circuit decision in Timmons "would offer encouragement to those who view [fusion] as a practical solution to the problem of fostering the coalition-building capacity of a new party"); Richard Winger, How Ballot Access Laws Affect the U.S. Party System, 16 Am Rev Pol 321, 346 (1995) (blaming restrictive ballot access laws and the Supreme Court's decisions in the ballot access area for preventing the emergence of "substantial nationwide third parties in the U.S.").
6. John B. Anderson and Jeffrey L. Freeman, Taking the First Steps Towards a Multiparty System in the United States, 21 Fletcher Forum World Affairs 73, 81 (Spring 1997) (affirmance of 8th Circuit decision in Timmons "would offer encouragement to those who view [fusion] as a practical solution to the problem of fostering the coalition-building capacity of a new party"); Richard Winger, How Ballot Access Laws Affect the U.S. Party System, 16 Am Rev Pol 321, 346 (1995) (blaming restrictive ballot access laws and the Supreme Court's decisions in the ballot access area for preventing the emergence of "substantial nationwide third parties in the U.S.").
7. Not that the ideas lack academic proponents. See, for example, Douglas J. Amy, Real Choices/New Voices: The Case for Proportional Representation Elections in the United States 188-90 (Columbia, 1993) (advocating use of proportional representation and multimember districts to choose members of the House of Representatives). The single-member district requirement for the House of Representatives is statutory, not constitutional. See 2 USC § 2c (1994).
8. See note 77.
9. See Part III.B (discussing Duverger's law).
10. 393 US 23 (1968).
11. Id at 24. Among other provisions, the law required that new parties desiring a place on the ballot obtain petitions signed by voters totaling 15% of the number of ballots cast in the preceding gubernatorial election. Id at 24-25. In contrast, the Democratic and Republican parties were allowed to retain their positions on the ballot simply by obtaining 10% of the votes in the last gubernatorial election and did not need to obtain any signature petitions. In addition, Ohio laws made "no provision for ballot position for independent candidates as distinguished from political parties." Id at 25-26. Ohio also placed other burdens in front of minor party candidacies. Id at 27. The Ohio American Independent Party, founded by supporters of former Alabama governor George C. Wallace, obtained more than the required number of signatures, though not in the time limits set by the state. Id at 26-27.
12. Id at 31-32.
13. Id at 32.
14. Perhaps the court would understand the question as one of legislative intent: if the legislature (made up predominantly, if not exclusively, of Democrats and Republicans in all states, see notes 188-89 and accompanying text) enacts a law with an intention to discriminate against third parties or independent candidates, the practice should be barred. But if the legislature intends to promote a stable two-party political system, the practice should be allowed despite the resulting discrimination against third parties or independent candidates. See Mobile v Bolden, 446 US 55 (1980) (Constitution prohibits only intentional discrimination against minority voters, and not the discriminatory results of a law passed to further legitimate state interests); see also Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 Georgetown L J 491, 528-30, 535-36 (1997) (arguing that courts should void ballot access restrictions unless the legislature would have enacted the restriction at issue in the absence of entrenchment considerations). But proving or disproving such intent would be difficult indeed.
15. Perhaps the court would understand the question as one of legislative intent: if the legislature (made up predominantly, if not exclusively, of Democrats and Republicans in all states, see notes 188-89 and accompanying text) enacts a law with an intention to discriminate against third parties or independent candidates, the practice should be barred. But if the legislature intends to promote a stable two-party political system, the practice should be allowed despite the resulting discrimination against third parties or independent candidates. See Mobile v Bolden, 446 US 55 (1980) (Constitution prohibits only intentional discrimination against minority voters, and not the discriminatory results of a law passed to further legitimate state interests); see also Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 Georgetown L J 491, 528-30, 535-36 (1997) (arguing that courts should void ballot access restrictions unless the legislature would have enacted the restriction at issue in the absence of entrenchment considerations). But proving or disproving such intent would be difficult indeed.
16. 460 US 780 (1983).
17. Id at 802.
18. 415 US 724 (1974).
19. Anderson, 460 US at 803, quoting Storer, 415 US at 736.
20. Anderson, 460 US at 803, quoting Storer, 415 US at 736.
21. Anderson, 460 US at 803.
22. 478 US 109 (1986).
23. 427 US 347, 368-69 (1976) (plurality opinion) ("[H]owever important preservation of the two-party system or any system involving a fixed number of parties may or may not be, . . . we are not persuaded that the elimination of patronage practice . . . will bring about the demise of party politics" (citation omitted)). For a discussion of whether patronage practices help the two-party system, and for a look at the patronage cases generally,
24. see Cynthia Grant Bowman, The Law of Patronage at a Crossroads, 12 J L & Pol 341 (1996);
25. Richard L. Hasen, An Enriched Economic Model of Political Patronage and Campaign Contributions: Reformulating Supreme Court Jurisprudence, 14 Cardozo L Rev 1311 (1993);
26. and Cynthia Grant Bowman, "We Don't Want Anybody Anybody Sent": The Death of Patronage Hiring in Chicago, 86 Nw U L Rev 57, 83-89 (1991) (Bowman, Anybody Anybody).
27. Elrod, 427 US at 382 (Powell dissenting).
28. 445 US 507, 528 (1980) (Powell dissenting).
29. Id. This interest corresponds with my discussion of how parties solve collective action problems for politicians. In Part III, I argue that Supreme Court protection of the two major parties is unnecessary to preserve this benefit for politicians.
30. 445 US 507, 529 (Powell dissenting).
31. Id at 530-31. This interest corresponds with the desire to curb government gridlock, discussed in note 150.
32. 445 US 531. See Parts II.A.3 and II.C.3 (discussing the voting cue).
33. 497 US 62, 92 (1990) (Scalia dissenting).
34. Id at 107. On political stability, see Parts II.A.1 and II.C.1. In the most recent pair of patronage cases, Board of County Commissioners v Umbehr, 116 S Ct 2342 (1996), and O'Hare Truck Service v City of Northlake, 116 S Ct 2353 (1996), Justice Scalia, writing for himself and one other Justice, dissented from the Court's decision to extend patronage prohibitions to independent contractors, but he did not reiterate his reasons for favoring the two-party system.
35. Id at 107. On political stability, see Parts II.A.1 and II.C.1. In the most recent pair of patronage cases, Board of County Commissioners v Umbehr, 116 S Ct 2342 (1996), and O'Hare Truck Service v City of Northlake, 116 S Ct 2353 (1996), Justice Scalia, writing for himself and one other Justice, dissented from the Court's decision to extend patronage prohibitions to independent contractors, but he did not reiterate his reasons for favoring the two-party system.
36. Davis, 478 US at 144-45 (O'Connor concurring).
37. Id at 145. One other pre-Timmons case deserves mention: in Buckley v Valeo, 424 US 1 (1976), the Court considered a challenge by minor political parties to provisions of the Federal Elections Campaign Act that favored major political parties. See id at 93-108 (per curiam). The Court first rejected the challenge to the formula for public financing of presidential campaigns that favored major political parties. It held that Congress need not subsidize the proliferation of splinter parties, id at 98, and in any case the voluntary spending limits on major parties could enhance the relative position of minor parties, id at 99. It then applied similar logic to public funding of major party nominating conventions, id at 104-05, and to the minor parties' challenge to primary election campaign financing, id at 105-08. The Court did not discuss whether the public financing provisions could be justified on grounds that they favored the two-party system.
38. In support of his argument that the two-party system deserves special protection (as opposed to the argument that patronage furthers the interest in promoting the two-party system - though separating the two in his opinions is quite difficult), Justice Powell cited the following scholarly sources: Edward N. Costikyan, Behind Closed Doors: Politics in the Public Interest 253-54 (Harcourt, Brace & World, 1966) ; Richard Murray and Arnold Vedlitz, Party Voting in Lower-Level Electoral Contests, 59 Soc Sci Q 752, 756 (1979); and Martin Tolchin and Susan Tolchin, To the Victor . . . 19 (Random House, 1971). He also cited a few newspaper articles and a book by a journalist, David Broder, The Party's Over: The Failure of Politics in America 239-40 (Harper Collins, 1972). See Branti, 445 US at 528-
39. In support of his argument that the two-party system deserves special protection (as opposed to the argument that patronage furthers the interest in promoting the two-party system - though separating the two in his opinions is quite difficult), Justice Powell cited the following scholarly sources: Edward N. Costikyan, Behind Closed Doors: Politics in the Public Interest 253-54 (Harcourt, Brace & World, 1966) ; Richard Murray and Arnold Vedlitz, Party Voting in Lower-Level Electoral Contests, 59 Soc Sci Q 752, 756 (1979); and Martin Tolchin and Susan Tolchin, To the Victor . . . 19 (Random House, 1971). He also cited a few newspaper articles and a book by a journalist, David Broder, The Party's Over: The Failure of Politics in America 239-40 (Harper Collins, 1972). See Branti, 445 US at 528-
40. In support of his argument that the two-party system deserves special protection (as opposed to the argument that patronage furthers the interest in promoting the two-party system - though separating the two in his opinions is quite difficult), Justice Powell cited the following scholarly sources: Edward N. Costikyan, Behind Closed Doors: Politics in the Public Interest 253-54 (Harcourt, Brace & World, 1966) ; Richard Murray and Arnold Vedlitz, Party Voting in Lower-Level Electoral Contests, 59 Soc Sci Q 752, 756 (1979); and Martin Tolchin and Susan Tolchin, To the Victor . . . 19 (Random House, 1971). He also cited a few newspaper articles and a book by a journalist, David Broder, The Party's Over: The Failure of Politics in America 239-40 (Harper Collins, 1972). See Branti, 445 US at 528-
41. In support of his argument that the two-party system deserves special protection (as opposed to the argument that patronage furthers the interest in promoting the two-party system - though separating the two in his opinions is quite difficult), Justice Powell cited the following scholarly sources: Edward N. Costikyan, Behind Closed Doors: Politics in the Public Interest 253-54 (Harcourt, Brace & World, 1966) ; Richard Murray and Arnold Vedlitz, Party Voting in Lower-Level Electoral Contests, 59 Soc Sci Q 752, 756 (1979); and Martin Tolchin and Susan Tolchin, To the Victor . . . 19 (Random House, 1971). He also cited a few newspaper articles and a book by a journalist, David Broder, The Party's Over: The Failure of Politics in America 239-40 (Harper Collins, 1972). See Branti, 445 US at 528-
42. In support of his argument that the two-party system deserves special protection (as opposed to the argument that patronage furthers the interest in promoting the two-party system - though separating the two in his opinions is quite difficult), Justice Powell cited the following scholarly sources: Edward N. Costikyan, Behind Closed Doors: Politics in the Public Interest 253-54 (Harcourt, Brace & World, 1966) ; Richard Murray and Arnold Vedlitz, Party Voting in Lower-Level Electoral Contests, 59 Soc Sci Q 752, 756 (1979); and Martin Tolchin and Susan Tolchin, To the Victor . . . 19 (Random House, 1971). He also cited a few newspaper articles and a book by a journalist, David Broder, The Party's Over: The Failure of Politics in America 239-40 (Harper Collins, 1972). See Branti, 445 US at 528-
43. In support of the same argument in Rutan, Justice Scalia cited the following scholarly sources: Marie-France Toinet and Ian Glenn, Clientelism and Corruption in the "Open" Society: The Case of the United States, in Christopher Clapham, ed, Private Patronage and Public Power 193, 208 (St. Martin's, 1982);
44. and Michael A. Fitts, The Vices of Virtue: A Political Party Perspective on Civic Virtue Reforms of the Legislative Process, 136 U Pa L Rev 1567 1603-07 (1988).
45. See Rutan, 497 US at 107.
46. 117 S Ct 1364 (1997).
47. Id at 1374.
48. 117 S Ct 1364 (1997).
49. Id at 1367-68. "The DFL is the product of a 1944 merger between Minnesota's Farmer-Labor Party and the Democratic Party, and is a 'major party' under Minnesota Law." Id at 1367 n 2.
50. Id at 1367-68. "The DFL is the product of a 1944 merger between Minnesota's Farmer-Labor Party and the Democratic Party, and is a 'major party' under Minnesota Law." Id at 1367 n 2.
51. Id at 1368. Fusion is also called "cross-filing" or "multiple-party nomination." Id at 1367 n 1. To be fair to the DFL, there would be no reason for the party to have objected given that the practice violated state law. Nor was there any procedure in place for the DFL to lodge a formal objection. The Court's opinion does not reveal whether DFL officials objected in any informal way to Dawkins's fusion candidacy. The DFL was not a party to the litigation.
52. Id at 1368. Fusion is also called "cross-filing" or "multiple-party nomination." Id at 1367 n 1. To be fair to the DFL, there would be no reason for the party to have objected given that the practice violated state law. Nor was there any procedure in place for the DFL to lodge a formal objection. The Court's opinion does not reveal whether DFL officials objected in any informal way to Dawkins's fusion candidacy. The DFL was not a party to the litigation.
53. Id at 1368 n 3, citing Minn Stat §§ 204B.04(2), 204B.06(1)(b) (1996).
54. Twin Cities Area New Party v McKenna, 863 F Supp 988, 990 (D Minn 1994).
55. Twin Cities Area New Party v McKenna, 73 F3d 196, 200 (8th Cir 1996).
56. Timmons, 117 S Ct at 1372. The Court held the burden was not severe because Minnesota's laws do not restrict the ability of the New Party and its members to endorse, support, or vote for anyone they like. The laws do not directly limit the Party's access to the ballot. They are silent on parties' internal structure, governance, and policy-making. Instead, these provisions reduce the universe of potential candidates who may appear on the ballot as the Party's nominee only by ruling out those few individuals who both have already agreed to be another party's candidate and also, if forced to choose, themselves prefer that other party. They also limit, slightly, the Party's ability to send a message to the voters and to its preferred candidates.
57. Id.
58. Id at 1373.
59. Id.
60. Id at 1374.
61. The Court called the New Party's argument along these lines ironic because it amounted to a minor party calling tor more demanding ballot access requirements. Id at 1373. Current Minnesota law makes it quite easy to set up such a sham party. Candidates not from a major political party need only collect signatures from 2,000 voters (or 1% of the number of voters voting in the state in the election, whichever is less) to run for statewide office. See Minn Stat § 204B.08(3)(a) (1996); see also § 204B.03 (requiring non-major party candidates to collect signatures to appear on ballot); § 200.02(6) and (7) (defining, respectively, "political party" and "major political party"). The dissent considered Minnesota's concern over sham parties "entirely hypothetical." 117 S Ct at 1378 (Stevens dissenting). But in New York, a state that permits fusion, the "Tax Cut Now Party" served as the alter ego of the Republican party' in the 1994 election. See Ian Fisher, Minor Parties File Petitions for Pataki and Rosenbaum, NY Times B6 (Aug 24, 1994). Republican officials "said the new party was aimed at Democrats who opposed Gov Mario M. Cuomo but might still be reluctant to pull the lever for a Republican." Id. Over 50,000 voters voted for now-Governor George Pataki, the Republican candidate, on the Tax Cut Now Party line, entitling the party, renamed the "Freedom Party," to a spot on the New York state ballot for five years. Drive By, The Hotline (Apr 27, 1995). The party had only 419 members, however. Id.
62. The Court called the New Party's argument along these lines ironic because it amounted to a minor party calling tor more demanding ballot access requirements. Id at 1373. Current Minnesota law makes it quite easy to set up such a sham party. Candidates not from a major political party need only collect signatures from 2,000 voters (or 1% of the number of voters voting in the state in the election, whichever is less) to run for statewide office. See Minn Stat § 204B.08(3)(a) (1996); see also § 204B.03 (requiring non-major party candidates to collect signatures to appear on ballot); § 200.02(6) and (7) (defining, respectively, "political party" and "major political party"). The dissent considered Minnesota's concern over sham parties "entirely hypothetical." 117 S Ct at 1378 (Stevens dissenting). But in New York, a state that permits fusion, the "Tax Cut Now Party" served as the alter ego of the Republican party' in the 1994 election. See Ian Fisher, Minor Parties File Petitions for Pataki and Rosenbaum, NY Times B6 (Aug 24, 1994). Republican officials "said the new party was aimed at Democrats who opposed Gov Mario M. Cuomo but might still be reluctant to pull the lever for a Republican." Id. Over 50,000 voters voted for now-Governor George Pataki, the Republican candidate, on the Tax Cut Now Party line, entitling the party, renamed the "Freedom Party," to a spot on the New York state ballot for five years. Drive By, The Hotline (Apr 27, 1995). The party had only 419 members, however. Id.
63. The Court called the New Party's argument along these lines ironic because it amounted to a minor party calling tor more demanding ballot access requirements. Id at 1373. Current Minnesota law makes it quite easy to set up such a sham party. Candidates not from a major political party need only collect signatures from 2,000 voters (or 1% of the number of voters voting in the state in the election, whichever is less) to run for statewide office. See Minn Stat § 204B.08(3)(a) (1996); see also § 204B.03 (requiring non-major party candidates to collect signatures to appear on ballot); § 200.02(6) and (7) (defining, respectively, "political party" and "major political party"). The dissent considered Minnesota's concern over sham parties "entirely hypothetical." 117 S Ct at 1378 (Stevens dissenting). But in New York, a state that permits fusion, the "Tax Cut Now Party" served as the alter ego of the Republican party' in the 1994 election. See Ian Fisher, Minor Parties File Petitions for Pataki and Rosenbaum, NY Times B6 (Aug 24, 1994). Republican officials "said the new party was aimed at Democrats who opposed Gov Mario M. Cuomo but might still be reluctant to pull the lever for a Republican." Id. Over 50,000 voters voted for now-Governor George Pataki, the Republican candidate, on the Tax Cut Now Party line, entitling the party, renamed the "Freedom Party," to a spot on the New York state ballot for five years. Drive By, The Hotline (Apr 27, 1995). The party had only 419 members, however. Id.
64. The Court called the New Party's argument along these lines ironic because it amounted to a minor party calling tor more demanding ballot access requirements. Id at 1373. Current Minnesota law makes it quite easy to set up such a sham party. Candidates not from a major political party need only collect signatures from 2,000 voters (or 1% of the number of voters voting in the state in the election, whichever is less) to run for statewide office. See Minn Stat § 204B.08(3)(a) (1996); see also § 204B.03 (requiring non-major party candidates to collect signatures to appear on ballot); § 200.02(6) and (7) (defining, respectively, "political party" and "major political party"). The dissent considered Minnesota's concern over sham parties "entirely hypothetical." 117 S Ct at 1378 (Stevens dissenting). But in New York, a state that permits fusion, the "Tax Cut Now Party" served as the alter ego of the Republican party' in the 1994 election. See Ian Fisher, Minor Parties File Petitions for Pataki and Rosenbaum, NY Times B6 (Aug 24, 1994). Republican officials "said the new party was aimed at Democrats who opposed Gov Mario M. Cuomo but might still be reluctant to pull the lever for a Republican." Id. Over 50,000 voters voted for now-Governor George Pataki, the Republican candidate, on the Tax Cut Now Party line, entitling the party, renamed the "Freedom Party," to a spot on the New York state ballot for five years. Drive By, The Hotline (Apr 27, 1995). The party had only 419 members, however. Id.
65. The Court called the New Party's argument along these lines ironic because it amounted to a minor party calling tor more demanding ballot access requirements. Id at 1373. Current Minnesota law makes it quite easy to set up such a sham party. Candidates not from a major political party need only collect signatures from 2,000 voters (or 1% of the number of voters voting in the state in the election, whichever is less) to run for statewide office. See Minn Stat § 204B.08(3)(a) (1996); see also § 204B.03 (requiring non-major party candidates to collect signatures to appear on ballot); § 200.02(6) and (7) (defining, respectively, "political party" and "major political party"). The dissent considered Minnesota's concern over sham parties "entirely hypothetical." 117 S Ct at 1378 (Stevens dissenting). But in New York, a state that permits fusion, the "Tax Cut Now Party" served as the alter ego of the Republican party' in the 1994 election. See Ian Fisher, Minor Parties File Petitions for Pataki and Rosenbaum, NY Times B6 (Aug 24, 1994). Republican officials "said the new party was aimed at Democrats who opposed Gov Mario M. Cuomo but might still be reluctant to pull the lever for a Republican." Id. Over 50,000 voters voted for now-Governor George Pataki, the Republican candidate, on the Tax Cut Now Party line, entitling the party, renamed the "Freedom Party," to a spot on the New York state ballot for five years. Drive By, The Hotline (Apr 27, 1995). The party had only 419 members, however. Id.
66. 117 S Ct at 1375 n 13. According to the Court, the problem with sham parties is that they would "undermine the ballot's purpose by transforming it from a means of choosing candidates to a billboard for political advertising." Id at 1373. But that problem does not seem "sufficiently weighty" when measured against the burden on third parties' associational rights, and, as noted above, it can be solved by reasonable ballot access requirements.
67. 117 S Ct at 1375 n 13. According to the Court, the problem with sham parties is that they would "undermine the ballot's purpose by transforming it from a means of choosing candidates to a billboard for political advertising." Id at 1373. But that problem does not seem "sufficiently weighty" when measured against the burden on third parties' associational rights, and, as noted above, it can be solved by reasonable ballot access requirements.
68. A recent student note convincingly argues that the most important benefit of fusion to the third party is not the election of the multiparty candidates, but rather use of some of the multiparty votes to meet future ballot access requirements for the minor party. Note, Fusion Candidacies, Disaggregation, and Freedom of Association, 109 Harv L Rev 1302, 1305 (1996).
69. 117 S Ct at 1379 (Stevens dissenting).
70. Id at 1374.
71. Id, citing Williams v Rhodes, 393 US 23, 31-32 (1968).
72. Id, citing Williams v Rhodes, 393 US 23, 31-32 (1968).
73. Id.
74. 117 S Ct at 1374.
75. See Brief Amici Curiae of Twelve University Professors and Center for a New Democracy in Support of Respondent Twin Cities Area New Party, 1996 WL 496827, *14 (Aug 30, 1996) (CND Amicus Brief); see also Argersinger, 85 Am Hist Rev at 303 (cited in note 2) (arguing that antifusion laws at the end of the nineteenth century brought an end to "the importance and even existence of significant third parties").
76. See Brief Amici Curiae of Twelve University Professors and Center for a New Democracy in Support of Respondent Twin Cities Area New Party, 1996 WL 496827, *14 (Aug 30, 1996) (CND Amicus Brief); see also Argersinger, 85 Am Hist Rev at 303 (cited in note 2) (arguing that antifusion laws at the end of the nineteenth century brought an end to "the importance and even existence of significant third parties").
77. 117 S Ct at 1380 (Stevens dissenting).
78. Id at 1381 (Souter dissenting); see also id at 1379 (Stevens dissenting). The majority disagreed. See id at 1374 n 10.
79. Id at 1381 (Souter dissenting); see also id at 1379 (Stevens dissenting). The majority disagreed. See id at 1374 n 10.
80. Id at 1381 (Souter dissenting); see also id at 1379 (Stevens dissenting). The majority disagreed. See id at 1374 n 10.
81. Id at 1382 (Souter dissenting).
82. The remaining two Justices, Stevens and Ginsburg, also appear to agree that a state may enact laws that disadvantage third parties if there is a sufficiently strong showing that the law promotes political stability, at least so long as the laws do not infringe on the First Amendment rights of third parties. Id at 1378 (Stevens dissenting).
83. Id at 1374.
84. Id.
85. Libertarian Party of Florida v Smith, 687 S2d 1292, 1295 (Fla 1996), cert denied 118 S Ct 57 (1997).
86. Currently pending before the Supreme Court is a case involving a public television station's decision to exclude from a televised debate for a Congressional seat all candidates besides the Democratic and Republican candidates. The Eighth Circuit held that the debate was a limited public forum and that a government-employed journalist could not decide to exclude a third-party candidate on grounds that the candidacy was not "viable." Forbes v Arkansas Educational Television Comm'n, 93 F3d 497, 505 (8th Cir 1996), cert granted, 117 S Ct 1243 (1997).
87. See Branti, 445 US at 528 (Powell dissenting) ("Until today, I would have believed that the importance of political parties was self-evident.").
88. 117 S Ct at 1370.
89. Id, quoting Burdick v Takushi, 504 US 428, 434 (1991).
90. Id, quoting Burdick v Takushi, 504 US 428, 434 (1991).
91. 117 S Ct at 1370, quoting Burdick v Takushi, 504 US at 434.
92. 117 S Ct at 1370, quoting Burdick v Takushi, 504 US at 434.
93. 460 US 780, 789 (1983).
94. See notes 188-89.
95. See Samuel Issacharoff and Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan L Rev (forthcoming 1998); Hasen, 14 Cardozo L Rev at 1331 (cited in note 20).
96. See Samuel Issacharoff and Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 Stan L Rev (forthcoming 1998); Hasen, 14 Cardozo L Rev at 1331 (cited in note 20).
97. 479 US 189 (1986).
98. Id at 200 (Marshall dissenting).
99. But see Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 Mich L Rev 917, 920-23 (1990) (arguing in favor of centralized political institutions to disseminate information to the public).
100. 393 US 23, 32 (1968).
101. See David M. Kreps, A Course in Microeconomic Theory 524-31 (Princeton, 1990) (discussing collusion by duopolists and difficulty in predicting when collusion will be sustained).
102. Id at 326-28 (presenting Cournot model in which duopolists set prices above the competitive price but below the monopoly price); but see id at 330-35 (presenting Bertrand model in which duopolists set price equal to the competitive price).
103. Issacharoff and Pildes, 50 Stan L Rev (cited in note 68).
104. See Part III.
105. In the absence of any burdens on the First Amendment, I believe rational basis review of election laws that favor the two-party system should be sufficient. Thus, the Court would not need to apply heightened scrutiny to an argument that the use of single-member districts or plurality elections are unconstitutional. Though these laws more than any others tend to dictate the number of viable political parties, see Part III below, they do not explicitly restrict the exercise of rights protected by the First Amendment, as antifusion laws, ballot access laws, and patronage practices do. Under a rational basis review, single-member districts and plurality elections may be upheld on the ground that the state must make a choice among numerous possible electoral systems, and there is no a priori reason to choose one over the other; to hold otherwise would require the Court not only to choose between the current system and more proportional systems, but to choose among a huge variety of proportional systems. In addition, a state reasonably could prefer single-member districts and plurality elections because they may be easier or cheaper to administer than multimember or multiround elections.
106. For a detailed history of early responsible party government scholarship, see Austin Ranney, The Doctrine of Responsible Party Government (Illinois, 1962). Ranney characterized the position as follows: There must exist at least two (and preferably only two) unified, disciplined political parties. Each has its conception of what the people want and a program of various measures designed to satisfy those wants. In a pre-election campaign each attempts to convince a majority of the people that its program will best do what the people want done. In the election each voter votes for a particular candidate in his district, primarily because that candidate is a member of the party which the voter wants to take power, and only secondarily because he prefers the individual qualities of one candidate to those of the other. The party which secures a majority of the offices of government in the election then takes over the entire power of the government and the entire responsibility for what the government does. It then proceeds to put its program into effect. Or perhaps unforeseen circumstances arise which make the party decide to alter or even abandon its program. In any event, at the next election the people decide whether, on the whole, they approve of the general direction that the party in power has been taking - in short, whether their wants are being satisfied. If the answer is yes, they return that party to power; if the answer is no, they replace it with the opposition party. Id at 12.
107. For a detailed history of early responsible party government scholarship, see Austin Ranney, The Doctrine of Responsible Party Government (Illinois, 1962). Ranney characterized the position as follows: There must exist at least two (and preferably only two) unified, disciplined political parties. Each has its conception of what the people want and a program of various measures designed to satisfy those wants. In a pre-election campaign each attempts to convince a majority of the people that its program will best do what the people want done. In the election each voter votes for a particular candidate in his district, primarily because that candidate is a member of the party which the voter wants to take power, and only secondarily because he prefers the individual qualities of one candidate to those of the other. The party which secures a majority of the offices of government in the election then takes over the entire power of the government and the entire responsibility for what the government does. It then proceeds to put its program into effect. Or perhaps unforeseen circumstances arise which make the party decide to alter or even abandon its program. In any event, at the next election the people decide whether, on the whole, they approve of the general direction that the party in power has been taking - in short, whether their wants are being satisfied. If the answer is yes, they return that party to power; if the answer is no, they replace it with the opposition party. Id at 12.
108. Id at 25-47 (summarizing Wilson's views).
109. David E. Price, Bringing Back the Parties 103 (Congressional Quarterly, 1984). There is considerable controversy over whether the British party system ever lived up to this ideal. For a summary of the arguments, see Evron M. Kirkpatrick, "Toward a More Responsible, Two-Party System": Political Science, Policy Science, or Pseudo-Science? 65 Am Pol Sci Rev 965, 974-76 (1971).
110. David E. Price, Bringing Back the Parties 103 (Congressional Quarterly, 1984). There is considerable controversy over whether the British party system ever lived up to this ideal. For a summary of the arguments, see Evron M. Kirkpatrick, "Toward a More Responsible, Two-Party System": Political Science, Policy Science, or Pseudo-Science? 65 Am Pol Sci Rev 965, 974-76 (1971).
111. E. E. Schattschneider, Party Government 1 (Holt, Rinehart & Winston, 1942).
112. V. O. Key, Politics, Parties, & Pressure Groups 9 (Thomas Y. Crowell, 5th ed 1964).
113. Toward a More Responsible Two-Party System: A Report of the Committee on Political Parties American Political Science Association (Rinehart, 1950) (APSA Report). The report originally was published as a supplement to volume 44, number 3, 1950, of The American Political Science Review.
114. Toward a More Responsible Two-Party System: A Report of the Committee on Political Parties American Political Science Association (Rinehart, 1950) (APSA Report). The report originally was published as a supplement to volume 44, number 3, 1950, of The American Political Science Review.
115. Kirkpatrick, 65 Am Pol Sci Rev at 967 (cited in note 80).
116. APSA Report at 43 (cited in note 83); see also Larry T. Sabato, The Party's Just Begun: Shaping Political Parties for America's Future 176-99 (Scott, Foresman, 1988).
117. APSA Report at 43 (cited in note 83); see also Larry T. Sabato, The Party's Just Begun: Shaping Political Parties for America's Future 176-99 (Scott, Foresman, 1988).
118. APSA Report at 75 (cited in note 83).
119. Id at 15 (emphasis omitted). The report does not detail the reasons for supporting a two-party system, on grounds that "[t]he two party system is so strongly rooted in the political traditions of this country and public preference for it is so well established that consideration of other possibilities seems entirely academic." Id at 18.
120. Id at 15 (emphasis omitted). The report does not detail the reasons for supporting a two-party system, on grounds that "[t]he two party system is so strongly rooted in the political traditions of this country and public preference for it is so well established that consideration of other possibilities seems entirely academic." Id at 18.
121. See, for example, Kirkpatrick, 65 Am Pol Sci Rev at 978 (cited in note 80) ("It is interesting that, as normative political science, no effort whatsoever was made to clarify or justify this norm. Apparently its benefits were presumed to be self-evident and perhaps they were and are so for most Americans. But what is commonly acceptable is not necessarily good scholarship.").
122. The Committee's Declaration of Principles, Principles of Strong Party Organization, and Statement on Campaign Finance appear as Appendixes A-C in the committee's amicus brief in the case of Colorado Republican Fed. Campaign Comm. v Fed. Elect Comm'n, 116 S Ct 2309 (1996). Brief Amicus Curiae Committee for Party Renewal et al, 1996 WL 75770, *1a-16a (CPR Amicus Brief).
123. See Daniel Hays Lowenstein, Associational Rights of Major Political Parties: A Skeptical Inquiry, 71 Tex L Rev 1741, 1791 (1993) (criticizing party renewal advocates' focus on litigation and arguing in favor of taking the case to the American people).
124. For a sampling of views of responsible party government scholars on the association cases, see Mark E. Rush, Voters' Rights and the Legal Status of American Political Parties, 9 J L & Pol 487 (1993); Brian L. Porto, The Constitution and Political Parties: Supreme Court Jurisprudence and Its Implications for Partybuilding, 8 Const Comm 433 (1991); Roy Christman and Barbara Norrander, A Refection on Political Party Deregulation Via the Courts: The Case of California, 6 J L & Pol 723 (1990); Leon D. Epstein, Will American Political Parties Be Privatized? 5 J L & Pol 239 (1989);
125. For a sampling of views of responsible party government scholars on the association cases, see Mark E. Rush, Voters' Rights and the Legal Status of American Political Parties, 9 J L & Pol 487 (1993); Brian L. Porto, The Constitution and Political Parties: Supreme Court Jurisprudence and Its Implications for Partybuilding, 8 Const Comm 433 (1991); Roy Christman and Barbara Norrander, A Refection on Political Party Deregulation Via the Courts: The Case of California, 6 J L & Pol 723 (1990); Leon D. Epstein, Will American Political Parties Be Privatized? 5 J L & Pol 239 (1989);
126. For a sampling of views of responsible party government scholars on the association cases, see Mark E. Rush, Voters' Rights and the Legal Status of American Political Parties, 9 J L & Pol 487 (1993); Brian L. Porto, The Constitution and Political Parties: Supreme Court Jurisprudence and Its Implications for Partybuilding, 8 Const Comm 433 (1991); Roy Christman and Barbara Norrander, A Refection on Political Party Deregulation Via the Courts: The Case of California, 6 J L & Pol 723 (1990); Leon D. Epstein, Will American Political Parties Be Privatized? 5 J L & Pol 239 (1989);
127. For a sampling of views of responsible party government scholars on the association cases, see Mark E. Rush, Voters' Rights and the Legal Status of American Political Parties, 9 J L & Pol 487 (1993); Brian L. Porto, The Constitution and Political Parties: Supreme Court Jurisprudence and Its Implications for Partybuilding, 8 Const Comm 433 (1991); Roy Christman and Barbara Norrander, A Refection on Political Party Deregulation Via the Courts: The Case of California, 6 J L & Pol 723 (1990); Leon D. Epstein, Will American Political Parties Be Privatized? 5 J L & Pol 239 (1989);
128. Clifton McCleskey, Parties at the Bar: Equal Protection, Freedom of Association, and the Rights of Political Organizations, 46 J Pol 346 (1984). For a skeptical inquiry into political parties' rights of association,
129. see Lowenstein, 71 Tex L Rev 1741 (cited in note 90).
130. An amicus brief in Timmons signed by a number of responsible party government scholars, including Walter Dean Burnham, opposed the fusion ban, stating that "a two-party system that actively hinders minor parties tends to discourage meaningful electoral competition between issue-oriented political parties." CND Amicus Brief at *14 (cited in note 52).
131. Timmons, 117 S Ct at 1374; Rutan, 497 US at 107 (Scalia dissenting); Davis, 478 US at 144-45 (O'Connor concurring); Branti, 445 US at 527-28 (Powell dissenting).
132. Timmons, 117 S Ct at 1374; Rutan, 497 US at 107 (Scalia dissenting); Davis, 478 US at 144-45 (O'Connor concurring); Branti, 445 US at 527-28 (Powell dissenting).
133. Timmons, 117 S Ct at 1374; Rutan, 497 US at 107 (Scalia dissenting); Davis, 478 US at 144-45 (O'Connor concurring); Branti, 445 US at 527-28 (Powell dissenting).
134. Timmons, 117 S Ct at 1374; Rutan, 497 US at 107 (Scalia dissenting); Davis, 478 US at 144-45 (O'Connor concurring); Branti, 445 US at 527-28 (Powell dissenting).
135. Fitts characterizes political parties as encompassing coalitions, relying upon Mancur Olson's work in The Rise and Decline of Nations (Yale, 1982). See Fitts, 136 U Pa L Rev at 1607 (cited in note 31).
136. Fitts characterizes political parties as encompassing coalitions, relying upon Mancur Olson's work in The Rise and Decline of Nations (Yale, 1982). See Fitts, 136 U Pa L Rev at 1607 (cited in note 31).
137. See Xandra Kayden and Eddie Mahe, Jr., The Party Goes On: The Persistence of the Two-Party System in the United States 207 (Basic Books, 1985) (arguing that a weak party system cannot provide focus for political debate, cannot generate commitment to the political system by the public at large. It cannot bring the interests together for compromise and cannot promote consensus").
138. As Schattschneider put it, "A major party mobilizes a majority in order to take control ot the government and accepts responsibility for the whole conduct of public policy." Schattschneider, Party Government at 63 (cited in note 81).
139. See Price, Bringing Back the Parties at 114-16 (cited in note 80).
140. Schattschneider, Party Government at 85 (cited in note 81) (stating that two-party system produces "moderate" parties).
141. Anthony Downs, An Economic Theory of Democracy 137 (Harper Collins, 1957). More complex models have challenged this conclusion. See note 147.
142. See Downs, Economic Theory of Democracy at 115 (cited in note 99) ("Parties in a two-party system deliberately change their platforms so that they resemble one another . . . ").
143. For example, the APSA Report warned that weakened political parties "might . . . set in motion more extreme tendencies to the political left and the political right. This again would represent a condition to which neither our political institutions nor our civic habits are adapted." APSA Report at 95 (cited in note 83) (emphasis omitted); see also Price, Bringing Back the Parties at 111 (cited in note 80) (Parties "help offset the biases of pluralism, balancing the demands of society's best-organized and best-financed groups with appeals that are more directly responsive to broader public interests.");
144. For example, the APSA Report warned that weakened political parties "might . . . set in motion more extreme tendencies to the political left and the political right. This again would represent a condition to which neither our political institutions nor our civic habits are adapted." APSA Report at 95 (cited in note 83) (emphasis omitted); see also Price, Bringing Back the Parties at 111 (cited in note 80) (Parties "help offset the biases of pluralism, balancing the demands of society's best-organized and best-financed groups with appeals that are more directly responsive to broader public interests.");
145. Key, Politics at 167 (cited in note 82) ("[P]arties must do more than combine interests for the satisfaction of mutually compatible greed: they must . . . implant a widespread belief that their policies promote the common weal."); Schattschneider, Party Government at 85 (cited in note 81) ("[I]t is difficult to imagine anything more important than the tendency of the parties to avoid extreme politics.").
146. See David K. Ryden, Representation in Crisis: The Constitution, Interest Groups, and Political Parties 119 (SUNY, 1996) ("Parties are uniquely positioned to dampen the factional tendencies of intensified group participation."); Sabato, Party's Just Begun at 5 (cited in note 85) ("[T]He two parties serve as vital, umbrellalike, consensus-forming institutions that help counteract the powerful centrifugal forces in a country teeming with hundreds of racial, economic, social, religious, and political groups.");
147. See David K. Ryden, Representation in Crisis: The Constitution, Interest Groups, and Political Parties 119 (SUNY, 1996) ("Parties are uniquely positioned to dampen the factional tendencies of intensified group participation."); Sabato, Party's Just Begun at 5 (cited in note 85) ("[T]He two parties serve as vital, umbrellalike, consensus-forming institutions that help counteract the powerful centrifugal forces in a country teeming with hundreds of racial, economic, social, religious, and political groups.");
148. Walter Dean Burnham, Critical Elections and the Mainsprings of American Politics 133 (W. W. Norton, 1970) ("[P]olitical parties, with all their well-known human and structural shortcomings, are the only devices thus far invented by the wit of Western man which with some effectiveness can generate countervailing collective power on behalf of the many individually powerless against the relatively few who are individually - or organizationally - powerful.");
149. APSA Report at 19 (cited in note 83) (calling for a reinforced party system to cope with the "multiplied organized pressures");
150. Schattschneider, Party Government at 85 (cited in note 81) ("[P]arty managers need not meet every demand made by every interest."); but see id at 192 ("If the parties exercised the power to govern effectively, they would shut out the pressure groups.").
151. See Sabato, Party's Just Begun at 20-21 (cited in note 85); Price, Bringing Back the Parties at 110-11 (cited in note 80) (parties balance demands of special interests "against broader public interests"); CPR Amicus Brief at *14 (cited in note 89) ("Single-issue groups lead to fragmented government, the neglect of broader policy needs, and the neglect of needs of citizens not represented by groups."); Schattschneider, Party Government at 196 (cited in note 81) (pressure group tries to "alarm [a member of Congress] and threatens him with defeat.").
152. See Sabato, Party's Just Begun at 20-21 (cited in note 85); Price, Bringing Back the Parties at 110-11 (cited in note 80) (parties balance demands of special interests "against broader public interests"); CPR Amicus Brief at *14 (cited in note 89) ("Single-issue groups lead to fragmented government, the neglect of broader policy needs, and the neglect of needs of citizens not represented by groups."); Schattschneider, Party Government at 196 (cited in note 81) (pressure group tries to "alarm [a member of Congress] and threatens him with defeat.").
153. See Sabato, Party's Just Begun at 20-21 (cited in note 85); Price, Bringing Back the Parties at 110-11 (cited in note 80) (parties balance demands of special interests "against broader public interests"); CPR Amicus Brief at *14 (cited in note 89) ("Single-issue groups lead to fragmented government, the neglect of broader policy needs, and the neglect of needs of citizens not represented by groups."); Schattschneider, Party Government at 196 (cited in note 81) (pressure group tries to "alarm [a member of Congress] and threatens him with defeat.").
154. See Sabato, Party's Just Begun at 20-21 (cited in note 85); Price, Bringing Back the Parties at 110-11 (cited in note 80) (parties balance demands of special interests "against broader public interests"); CPR Amicus Brief at *14 (cited in note 89) ("Single-issue groups lead to fragmented government, the neglect of broader policy needs, and the neglect of needs of citizens not represented by groups."); Schattschneider, Party Government at 196 (cited in note 81) (pressure group tries to "alarm [a member of Congress] and threatens him with defeat.").
155. Schattschneider, Party Government at 208 (cited in note 81) (arguing that only strong parties, and not pressure groups can handle the "planning, . . . integration, and over-all management of public affairs for the protection of the great interests of the nation").
156. Sabato, Party's Just Begun at 8 (cited in note 85) ("party affiliation provides a useful cue for voters, particularly the least informed and interested, who can use party as a shortcut or substitute for interpreting issues and events they may little comprehend");
157. Price, Bringing Back the Parties at 109 (cited in note 80) ("By helping voters make rational and consistent electoral choices, parties link the popular base of the political order and the institutions of government.").
158. See Downs, Economic Theory of Democracy at 221-25 (cited in note 99).
159. For a summary of some of the evidence, see John H. Aldrich, Why Parties? The Origin and Transformation of Political Parties in America 169-78 (Chicago, 1995).
160. See Frank J. Sorauf and Paul Allen Beck, Party Politics in America 393 (Harper Collins, 6th ed 1988) (noting that critics of the responsible party government position have concentrated on "one insistent theme: the nonideological, heterogeneous, and pragmatic nature of the American parties").
161. APSA Report at 2 (cited in note 83).
162. Broder (cited in note 31).
163. Kayden and Mahe (cited in note 95).
164. Sabato (cited in note 85).
165. Key, Politics at 163-65 (cited in note 82) (describing meanings of "party").
166. As I explain in Part III.A, the "party-in-government," as measured by the percentage of legislators from one of the two major political parties and by party unity scores, appears to have strengthened moderately since World War II.
167. For a public choice history of the transformation, see Joseph D. Reid, Jr. and Michael M. Kurth, Public Employees in Political Firms: Part A. The Patronage Era, 59 Pub Choice 253 (1988),
168. and Joseph D. Reid, Jr. and Michael M. Kurth, Public Employees in Political Firms: Part B. Civil Service and Militancy, 60 Pub Choice 41 (1989).
169. Burnham, Critical Elections at 74-75 (cited in note 102); see also Argersinger, 85 Am Hist Rev at 290-91 (cited in note 2).
170. Burnham, Critical Elections at 74-75 (cited in note 102); see also Argersinger, 85 Am Hist Rev at 290-91 (cited in note 2).
171. Burnham, Critical Elections at 73 (cited in note 102);
172. Key, Politics at 639 (cited in note 82).
173. Burnham, Critical Elections at 74 (cited in note 102).
174. Jac C. Heckelman, The Effect of the Secret Ballot on Voter Turnout Rates, 82 Pub Choice 107, 119 (1995). Heckelman found that the introduction of the secret ballot in various states at the beginning of the century accounted for an average drop in turnout of 6.9%, a fact he attributes to the elimination of effective bribery.
175. See Bowman, Anybody Anybody, 86 Nw U L Rev at 84 (cited in note 20).
176. See Austin Ranney, Curing the Mischiefs of Faction: Party Reform in America 17-19 (California, 1975).
177. For an extensive discussion, see William Crotty, American Parties in Decline 75-89 (Little, Brown, 2d ed 1984).
178. Joel H. Silbey, The Rise and Fall of American Political Parties 1790-1993, in L. Sandy Maisel, ed, The Parties Respond: Changes in American Parties and Campaigns 3, 14 (Westview 2d ed 1994) (The Parties Respond).
179. Polsby has compared mounting a modern presidential campaign to the production of a Broadway show: "A company is newly created. It sells tickets, books theaters, writes a script (frequently known as 'the speech'), and advertises the star. Individual contributions are solicited through the mail." Nelson W. Polsby, Consequences of Party Reform 72 (Oxford 1983).
180. "Usually, only serious candidates for major offices - presidential, senatorial, and gubernatorial make substantial use of television advertisements. Probably only about one-half of the House candidates purchase television time, and its cost often represents just a small portion of their campaign spending." Herbert E. Alexander and Anthony Corrado, Financing the 1992 Election 233-34 (ME. Sharpe, 1995). But House candidates spend their money on direct mail advertising, another expensive medium.
181. Silbey in The Parties Respond at 17 (cited in note 123) (after the 1940s, candidates no longer ran for office "primarily by mobilizing the party faithful, if they did so at all.").
182. Aldrich, Why Parties? at 268-69 (cited in note 107).
183. For a summary of the post-1968 reforms, see William Crotty, Party Reform (Longman, 1983).
184. Sorauf and Beck, Party Politics in America at 314 (cited in note 108). The move to the direct primary below the presidential level began as a progressive reform in 1903 and was adopted by most states by the 1920s. See Burnham, Critical Elections at 75 (cited in note 102).
185. Scholars have debated the extent to which partisan identification is a social-psychological attachment as opposed to a rational affiliation. For a summary of the debate, see Aldrich, Why Parties? at 165-69 (cited in note 107), and for a spirited defense of the social-psychological theory that "party identification is a long-term predisposition, largely exogenous to the vote decisions within a given election campaign," see Warren E. Miller and J. Merrill Shanks, The New American Voter 149 (Harvard, 1996).
186. Scholars have debated the extent to which partisan identification is a social-psychological attachment as opposed to a rational affiliation. For a summary of the debate, see Aldrich, Why Parties? at 165-69 (cited in note 107), and for a spirited defense of the social-psychological theory that "party identification is a long-term predisposition, largely exogenous to the vote decisions within a given election campaign," see Warren E. Miller and J. Merrill Shanks, The New American Voter 149 (Harvard, 1996).
187. See Martin P. Wattenberg, The Decline of American Political Parties 1952-1984 (Harvard, 1986);
188. see also Aldrich, Why Parties? at 248-52 (cited in note 107).
189. Aldrich, Why Parties? at 260 (cited in note 107);
190. see also Polsby, Consequences of Party Reform at 132-33 (cited in note 124) ("Party is increasingly a label for masses of individual voters who pick among various candidates in primary elections as they would among any alternatives marketed by the mass media.").
191. Aldrich, Why Parties? at 269 (cited in note 107).
192. Frank J. Sorauf and Scott A. Wilson, Political Parties and Campaign Finance: Adaptation and Accommodation Toward a Changing Role, in The Parties Respond at 235, 248 (cited in note 123) (The parties' "ability to raise money and to direct the raising of money from others, as well as their ability to provide campaign technologies and services, has won the parties an active role in campaign politics that they did not have in the 1960s and 1970s.") ; Kayden and Mahe, The Party Goes On at 191 (cited in note 95) ("Today, campaigns are run by professionals (and even volunteers) who are trained in their tasks and who rely on advice and assistance from the national and state parties and the private consulting firms they employ to do their advertising, fund raising, and general campaigning.") ; but see Crotty, American Parties in Decline at 75 (cited in note 122) ("Television allows those candidates who can command the necessary financial resources to mount impressive challenges to incumbents at all levels. Such candidates are not dependent on the political party to sponsor their careers.").
193. Frank J. Sorauf and Scott A. Wilson, Political Parties and Campaign Finance: Adaptation and Accommodation Toward a Changing Role, in The Parties Respond at 235, 248 (cited in note 123) (The parties' "ability to raise money and to direct the raising of money from others, as well as their ability to provide campaign technologies and services, has won the parties an active role in campaign politics that they did not have in the 1960s and 1970s.") ; Kayden and Mahe, The Party Goes On at 191 (cited in note 95) ("Today, campaigns are run by professionals (and even volunteers) who are trained in their tasks and who rely on advice and assistance from the national and state parties and the private consulting firms they employ to do their advertising, fund raising, and general campaigning.") ; but see Crotty, American Parties in Decline at 75 (cited in note 122) ("Television allows those candidates who can command the necessary financial resources to mount impressive challenges to incumbents at all levels. Such candidates are not dependent on the political party to sponsor their careers.").
194. Frank J. Sorauf and Scott A. Wilson, Political Parties and Campaign Finance: Adaptation and Accommodation Toward a Changing Role, in The Parties Respond at 235, 248 (cited in note 123) (The parties' "ability to raise money and to direct the raising of money from others, as well as their ability to provide campaign technologies and services, has won the parties an active role in campaign politics that they did not have in the 1960s and 1970s.") ; Kayden and Mahe, The Party Goes On at 191 (cited in note 95) ("Today, campaigns are run by professionals (and even volunteers) who are trained in their tasks and who rely on advice and assistance from the national and state parties and the private consulting firms they employ to do their advertising, fund raising, and general campaigning.") ; but see Crotty, American Parties in Decline at 75 (cited in note 122) ("Television allows those candidates who can command the necessary financial resources to mount impressive challenges to incumbents at all levels. Such candidates are not dependent on the political party to sponsor their careers.").
195. Aldrich, Why Parties? at 256-60 (cited in note 107); see also Schattschneider, Party Government at 129-69 (cited in note 81) (describing weakness of national political parties as of 1942). Of course, some of that power is a shift from local to national political power, but probably not all of it.
196. Aldrich, Why Parties? at 256-60 (cited in note 107); see also Schattschneider, Party Government at 129-69 (cited in note 81) (describing weakness of national political parties as of 1942). Of course, some of that power is a shift from local to national political power, but probably not all of it.
197. Soft money is used to pay a portion of the overhead expenses of party organizations, as well as other shared expenses that benefit both federal and non-federal elections. It is used for issue advocacy, as well as generic party advertising. A portion is transferred from national committees to state and local party committees, while some is contributed directly to candidates in non-federal races. It also supports construction and maintenance of party headquarters. Federal Election Commission News Release dated March 19, 1997, FEC Reports Major Increase in Party Activity for 1995-96 2 (available on the Internet at http://www.fec.gov).
198. Republicans raised $416.5 million in hard money and $138.2 million in soft money. Democrats raised $221.6 million in hard money and $123.9 million in soft money. Id at 1-2.
199. Republicans spent $408.5 million in hard money and $149.7 million in soft money. Democrats spent $214.3 million in hard money and $121.8 million in soft money. Id at 1-2. This money does not include the over $24 million provided to both parties to help pay for their national nominating conventions. See Federal Election Commission, Financing the 1996 Presidential Campaign (available on the internet at http://www.fec.gov/pres96/ presgen1.htm).
200. As major party nominees, Clinton and Dole each received $61.8 million. As a minor party candidate receiving 1992 of the vote in the 1992 election, Perot received $29 million. Federal Election Commission, Financing the 1996 Presidential Campaign at 2 (cited in note 138).
201. Kayden and Mahe, The Party Goes On at 199-200 (cited in note 95). Of course, rational party leaders may not want to increase feelings of partisan intensity unless they believe that their party will benefit from it.
202. Id at 8.
203. Much of that is to blame the electoral college and simply illustrates the mechanical effect of Duverger's Law. See Part III.B. Perot captured about 19% of the vote in 1992 and 8.6% of the vote in 1996. Robert Famighetti, ed, The World Almanac and Book of Facts 1997 at 108 (World Almanac Books, 1996).
204. Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 Cal L Rev 1, 3 nn 3-4 (1996), citing unpublished data from the University of Michigan Center for Political Studies, American National Election Studies 1952-1996, Table 4.13.
205. See note 94 and accompanying text.
206. For an argument that the Israeli electoral system is not typical of most systems of proportional representation, and is therefore a misleading example, see Amy, Real Choices/ New Voices at 169-70 (cited in note 6).
207. Ronald Rogowski, Trade and the Variety of Democratic Institutions, 41 Intl Org 203, 209 (1987).
208. For example, Rogowski notes that Downs's argument that plurality systems tend toward two parties in the political center, see text accompanying note 99, depends entirely on Downs's assumption that parties compete along a single ideological dimension. Rogowski, 41 Int Org at 209 (cited in note 146). Where there is multidimensional conflict, the model predicts plurality elections leading to high turnover and extreme instability of policy. Id.
209. For example, Rogowski notes that Downs's argument that plurality systems tend toward two parties in the political center, see text accompanying note 99, depends entirely on Downs's assumption that parties compete along a single ideological dimension. Rogowski, 41 Int Org at 209 (cited in note 146). Where there is multidimensional conflict, the model predicts plurality elections leading to high turnover and extreme instability of policy. Id.
210. Id at 209-10 (footnotes omitted).
211. Id at 210-12.
212. According to responsible party government scholars, the decline in parties also has meant a decline in voter turnout and eras of divided government, where one party controls the presidency and the other party controls one or both houses of Congress. On the voter turnout point, see Paul R. Abramson and John H. Aldrich, The Decline of Electoral Participation in America, 76 Am Pol Sci Rev 502, 510 (1982) (finding that the decline in partisanship explains between 25% and 30% of the decline in voter turnout among white Americans). The correlation, however, does not prove causation, and it is possible that both turnout and decline in partisan identification are both effects of some other cause, such as a declining norm of voting. For a discussion, see Richard L. Hasen, Voting Without Law? 144 U Pa L Rev 2135, 2156-64 (1996). In any case, we do not know whether the decline in voter turnout has undermined political stability. See Stephen E. Bennet and David Resnick, The Implications of Nonvoting for Democracy in the United States, 34 Am J Pol Sci 771, 773-76 (1990) (arguing that widespread voting is essential to the survival of democratic government). Some have blamed divided government for government gridlock. But Mayhew found that Congress was just as likely to enact major legislation during periods of divided government as during periods of unified government. See generally David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990 (Yale, 1990). For a citation of other relevant authority on this debate, see Daniel Hays Lowenstein, Election Law: Cases and Materials 315-16 (Carolina Academic Press, 1995). In any case, we do not know if government gridlock has undermined political stability, or even whether gridlock exists.
213. According to responsible party government scholars, the decline in parties also has meant a decline in voter turnout and eras of divided government, where one party controls the presidency and the other party controls one or both houses of Congress. On the voter turnout point, see Paul R. Abramson and John H. Aldrich, The Decline of Electoral Participation in America, 76 Am Pol Sci Rev 502, 510 (1982) (finding that the decline in partisanship explains between 25% and 30% of the decline in voter turnout among white Americans). The correlation, however, does not prove causation, and it is possible that both turnout and decline in partisan identification are both effects of some other cause, such as a declining norm of voting. For a discussion, see Richard L. Hasen, Voting Without Law? 144 U Pa L Rev 2135, 2156-64 (1996). In any case, we do not know whether the decline in voter turnout has undermined political stability. See Stephen E. Bennet and David Resnick, The Implications of Nonvoting for Democracy in the United States, 34 Am J Pol Sci 771, 773-76 (1990) (arguing that widespread voting is essential to the survival of democratic government). Some have blamed divided government for government gridlock. But Mayhew found that Congress was just as likely to enact major legislation during periods of divided government as during periods of unified government. See generally David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990 (Yale, 1990). For a citation of other relevant authority on this debate, see Daniel Hays Lowenstein, Election Law: Cases and Materials 315-16 (Carolina Academic Press, 1995). In any case, we do not know if government gridlock has undermined political stability, or even whether gridlock exists.
214. According to responsible party government scholars, the decline in parties also has meant a decline in voter turnout and eras of divided government, where one party controls the presidency and the other party controls one or both houses of Congress. On the voter turnout point, see Paul R. Abramson and John H. Aldrich, The Decline of Electoral Participation in America, 76 Am Pol Sci Rev 502, 510 (1982) (finding that the decline in partisanship explains between 25% and 30% of the decline in voter turnout among white Americans). The correlation, however, does not prove causation, and it is possible that both turnout and decline in partisan identification are both effects of some other cause, such as a declining norm of voting. For a discussion, see Richard L. Hasen, Voting Without Law? 144 U Pa L Rev 2135, 2156-64 (1996). In any case, we do not know whether the decline in voter turnout has undermined political stability. See Stephen E. Bennet and David Resnick, The Implications of Nonvoting for Democracy in the United States, 34 Am J Pol Sci 771, 773-76 (1990) (arguing that widespread voting is essential to the survival of democratic government). Some have blamed divided government for government gridlock. But Mayhew found that Congress was just as likely to enact major legislation during periods of divided government as during periods of unified government. See generally David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990 (Yale, 1990). For a citation of other relevant authority on this debate, see Daniel Hays Lowenstein, Election Law: Cases and Materials 315-16 (Carolina Academic Press, 1995). In any case, we do not know if government gridlock has undermined political stability, or even whether gridlock exists.
215. According to responsible party government scholars, the decline in parties also has meant a decline in voter turnout and eras of divided government, where one party controls the presidency and the other party controls one or both houses of Congress. On the voter turnout point, see Paul R. Abramson and John H. Aldrich, The Decline of Electoral Participation in America, 76 Am Pol Sci Rev 502, 510 (1982) (finding that the decline in partisanship explains between 25% and 30% of the decline in voter turnout among white Americans). The correlation, however, does not prove causation, and it is possible that both turnout and decline in partisan identification are both effects of some other cause, such as a declining norm of voting. For a discussion, see Richard L. Hasen, Voting Without Law? 144 U Pa L Rev 2135, 2156-64 (1996). In any case, we do not know whether the decline in voter turnout has undermined political stability. See Stephen E. Bennet and David Resnick, The Implications of Nonvoting for Democracy in the United States, 34 Am J Pol Sci 771, 773-76 (1990) (arguing that widespread voting is essential to the survival of democratic government). Some have blamed divided government for government gridlock. But Mayhew found that Congress was just as likely to enact major legislation during periods of divided government as during periods of unified government. See generally David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990 (Yale, 1990). For a citation of other relevant authority on this debate, see Daniel Hays Lowenstein, Election Law: Cases and Materials 315-16 (Carolina Academic Press, 1995). In any case, we do not know if government gridlock has undermined political stability, or even whether gridlock exists.
216. According to responsible party government scholars, the decline in parties also has meant a decline in voter turnout and eras of divided government, where one party controls the presidency and the other party controls one or both houses of Congress. On the voter turnout point, see Paul R. Abramson and John H. Aldrich, The Decline of Electoral Participation in America, 76 Am Pol Sci Rev 502, 510 (1982) (finding that the decline in partisanship explains between 25% and 30% of the decline in voter turnout among white Americans). The correlation, however, does not prove causation, and it is possible that both turnout and decline in partisan identification are both effects of some other cause, such as a declining norm of voting. For a discussion, see Richard L. Hasen, Voting Without Law? 144 U Pa L Rev 2135, 2156-64 (1996). In any case, we do not know whether the decline in voter turnout has undermined political stability. See Stephen E. Bennet and David Resnick, The Implications of Nonvoting for Democracy in the United States, 34 Am J Pol Sci 771, 773-76 (1990) (arguing that widespread voting is essential to the survival of democratic government). Some have blamed divided government for government gridlock. But Mayhew found that Congress was just as likely to enact major legislation during periods of divided government as during periods of unified government. See generally David R. Mayhew, Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990 (Yale, 1990). For a citation of other relevant authority on this debate, see Daniel Hays Lowenstein, Election Law: Cases and Materials 315-16 (Carolina Academic Press, 1995). In any case, we do not know if government gridlock has undermined political stability, or even whether gridlock exists.
217. Parties cannot raise the money as well as interest groups because of the problem of collective action: interest groups are smaller and more focused than parties. They therefore can more easily extract contributions from their members. See generally Mancur Olson, The Logic of Collective Action (Harvard, 1971).
218. For a concise summary of current scandals, see David E. Rosenbaum, Campaign Finance: Developments So Far, NY Times 9 (Apr 3, 1996).
219. See 2 USC § 441a(a)(1)(A) (1996). Multicandidate political committees (commonly known as "political action committees" or "PACs") may contribute up to $5,000 per candidate per election. 2 USC § 441a(2)(A) (1996).
220. See 2 USC § 441b(a) (1996).
221. Colorado Republican Fed. Campaign Comm'n Fed. Elect. Comm'n, 116 S Ct 2309 (1996).
222. Justices Breyer, O'Connor, and Souter did not reach the issue on "prudential" grounds, id at 2311 (plurality opinion), and they failed to express an opinion on how the issue should be decided.
223. Richard Briffault, Campaign Finance, the Parties, and the Court: A Comment on Colorado Republican Federal Campaign Committee v Federal Elections Commission, 14 Const Comm 91, 115 (1997) (footnote omitted). Briffault presents an excellent overview of the case and its implications.
224. See Tobacco Lobby Dines with Dems (AP story dated July 9, 1997, on file with author).
225. Norman H. Nie, et al, The Changing American Voter 346 (Harvard, enlarged ed 1979).
226. See Morris P. Fiorina, The Electorate at the Polls in the 1990s, in The Parties Respond 123, 125-26 (cited in note 123).
227. For the classic study of low-salience elections, see Gary C. Byrne and J. Kristian Pueschel, But Who Should I Vote for for County Coroner? 36 J Pol 778 (1974). examine the voting cue related to the election of judges in Richard L. Hasen, "High Court Wrongly Elected": A Public Choice Model of Judging and Its Implications for the Voting Rights Act, 75 NC L Rev 1305, 1315-17 (1997).
228. For the classic study of low-salience elections, see Gary C. Byrne and J. Kristian Pueschel, But Who Should I Vote for for County Coroner? 36 J Pol 778 (1974). examine the voting cue related to the election of judges in Richard L. Hasen, "High Court Wrongly Elected": A Public Choice Model of Judging and Its Implications for the Voting Rights Act, 75 NC L Rev 1305, 1315-17 (1997).
229. Daniel Hays Lowenstein, American Political Parties 63, 65, in Gillian Peele et al, eds, Developments in American Politics (St. Martin's, 1992).
230. For a nuanced view on the decline of party identification among the electorate, see Leon D. Epstein, Political Parties in the American Mold 239-71 (Wisconsin, 1989).
231. New York, which has had fusion politics since the 1840s, still sees 100% of its state legislators affiliating with the Democrats or the Republicans. See The Book of the States 1996-97 68 table 3.3 (Council on State Governments, 1997);
232. Peter Field, Fusionism, in Kenneth T. Jackson, ed, The Encyclopedia of New York City 446 (Yale, 1995).
233. For a detailed analysis and criticism of New York's fusion laws, see Howard A. Scarrow, Parties, Elections and Representation in the State of New York (New York Univ Press, 1983).
234. And for that matter, voters could differentiate the occasional Liberal Republicans and Conservative Democrats from the others.
235. See Scarrow, Parties in New York at 70 (cited in note 164) (presenting evidence that Liberal and Conservative parties tend to endorse Democratic and Republican candidates of appropriate ideological leanings).
236. Timmom, 117 S Ct at 1372 ("Ballots serve primarily to elect candidates, not as fora for political expression.").
237. Unlike the Court in Munro v Socialist Workers Party, 479 US 189, 195 (1986), in cases where First Amendment rights are burdened, I think it prudent to require actual proof that voters are likely to he confused, rather than assuming this fact without empirical evidence.
238. Aldrich, Why Parties? at 3 (cited in note 107).
239. I assume that politicians are vote maximizers. Election translates into utility gained by the politician in terms of power, popularity, the ability to impose values, or some combination of these benefits. See Hasen, 75 NC L Rev at 1315 (cited in note 161).
240. See Aldrich, Why Parties? at 4 (cited in note 107).
241. Id.
242. Id at 5. 174 Id at 49 ; see also Sabato, Party's Just Begun at 8-9 (cited in note 85).
243. Id at 5. 174 Id at 49 ; see also Sabato, Party's Just Begun at 8-9 (cited in note 85).
244. Id at 5. 174 Id at 49 ; see also Sabato, Party's Just Begun at 8-9 (cited in note 85).
245. See note 106 and accompanying text.
246. Aldrich, Why Parties? at 49 (cited in note 107).
247. Thomas Schwartz, "Why Parties?" 1-3 (unpublished research memorandum, UCLA, July 1989) (on file with the author). John Aldrich provides an extended discussion of this example. See Aldrich, Why Parties? at 29-39 (cited in note 107).
248. Thomas Schwartz, "Why Parties?" 1-3 (unpublished research memorandum, UCLA, July 1989) (on file with the author). John Aldrich provides an extended discussion of this example. See Aldrich, Why Parties? at 29-39 (cited in note 107).
249. Schwartz, "Why Parties?" at 2 (cited in note 177).
250. Id at 3.
251. Assume that the payoffs in the matrix represent payoffs to the legislators' respective constituencies. From a social standpoint, formation of the Legislator 1-2 party yields a total social cost of -1 (4 + 4 - 9), while a vote against all three bills yields a total social cost of 0, a socially superior result.
252. For a good introduction to the social choice literature, see Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 Yale L J 1219 (1994).
253. For a slight variation on the numerical example, but reaching the same result, see Aldrich, Why Parties? at 42-43 (cited in note 107).
254. Schwartz, "Why Parties?" at 3 (cited in note 177). As Aldrich explains, "the value of the party would be to institutionalize for the long haul (and over issues) and reduce uncertainty, ensuring each member some benefits for being in this party, such as here in avoiding the worst outcome." Aldrich, Why Parties? at 42 (cited in note 107).
255. Schwartz, "Why Parties?" at 3 (cited in note 177). As Aldrich explains, "the value of the party would be to institutionalize for the long haul (and over issues) and reduce uncertainty, ensuring each member some benefits for being in this party, such as here in avoiding the worst outcome." Aldrich, Why Parties? at 42 (cited in note 107).
256. See Aldrich, Why Parties? at 26 (cited in note 107). That is not to say these forces are irrelevant.
257. See Schwartz, "Why Parties?" at 8 (cited in note 177) ("In a group blessed with the small size, intimacy, longevity, and organizational resources of a legislature, it is in general not too hard for subgroups - especially sovereign majorities - to solve their collective-action problems and prevent defections."). It is only to say that parties should survive even in the absence of ideological cohesion and social pressure.
258. A politician who is not vote-maximizing may rationally choose not to run with a political party or a major political party. For example, a politician who wishes to promote a particular unpopular ideological viewpoint may find it rational to run as an independent candidate, without a challenge from party members or leaders.
259. Ross Perot's 1992 bid for the presidency is a good counterexample. There, Perot's vast wealth and his strategy to run as a Washington outsider may have made it rational for him to run without the benefits of a political party. However, by 1996 Perot formed and ran under the banner of a new party, the Reform Party. This move may have been motivated, at least in part, to qualify Perot for $29 million m public financing. See Mimi Hall, Perot Accepts Taxpayer Funding, Asks Supporters to Match the $29M, USA Today 4A (Aug 20, 1996).
260. Morris P. Fiorina, The Electorate at the Polls in the 1990s, in The Parties Respond 123, 130 (cited in note 123).
261. See Congressional Yellow Book: 105th Confess Roster 11 (Leadership Directories, Inc, special ed Jan 1997).
262. I calculated these figures using data from Book of the States 1996-97 68 table 3.3 (cited in note 164). I omitted Nebraska's 49 legislative members from the calculations because they are elected on a nonpartisan basis.
263. Barbara Sinclair, Parties in Congress: New Roles and Leadership Trends, in The Parties Respond 299, 303 (cited in note 123) ("For the period 1951 through 1970, House Democrats' average party unity score was 78 percent; this fell to 74 percent for the period 1971-1982. After the 1982 election, the scores began rising and averaged 86 percent for the period 1983-1992.").
264. Id at 315 ("Republicans voted with their party 81.2 percent of the time on average from 1981 through 1986, the period they controlled the Senate, compared with 71.9 percent during the 1969-1980 period. From 1987 through 1992, Senate Democrats supported their party's position on 83 percent of the roll calls on average - compared with 74.3 percent for 1969-1980 and 76.2 percent for 1981-1986.").
265. See Aldrich, Why Parties? at 176 (cited in note 107).
266. Sorauf and Beck, Party Politics at 35 (cited in note 108).
267. See Key, Politics at 207-10 (cited in note 82).
268. For a summary of the different explanations for the number of political parties, see Sorauf and Beck, Party Politics at 43-47 (cited in note 108).
269. Maurice Duverger, Political Parties: Their Organization and Activity in the Modern State, trans Barbara North and Robert North (Wiley, 2d English rev ed, 1959).
270. Duverger called this a "simple-majority single-ballot" system, see id at 217, but that term is misleading because it implies a majority requirement: "With two or fewer candidates, the winner has a simple majority of the votes cast; with three or more candidates, the winner may have only a plurality." William H. Riker, The Two-Party System and Duverger's Law. An Essay on the History of Political Science, 76 Am Pol Sci Rev 753, 754 (1982).
271. For an intellectual history of the idea before Duverger, see Riker, 76 Am Pol Sci Rev at 754-58 (cited in note 197).
272. Duverger, Political Parties at 217 (cited in note 196). He also stated in less strong terms the hypothesis "the simple-majority system with second ballot and proportional representation favour multi-partism." Id at 239 (emphasis omitted). Riker termed this second idea "Duverger's hypothesis," in contrast to "Duverger's law." Riker, 76 Am Pol Sci Rev at 754 (cited in note 197).
273. Duverger, Political Parties at 217 (cited in note 196). He also stated in less strong terms the hypothesis "the simple-majority system with second ballot and proportional representation favour multi-partism." Id at 239 (emphasis omitted). Riker termed this second idea "Duverger's hypothesis," in contrast to "Duverger's law." Riker, 76 Am Pol Sci Rev at 754 (cited in note 197).
274. Duverger, Political Parties at 224 (cited in note 196).
275. Id.
276. Id at 226.
277. Id at 223. Riker set forth his own revision to take into account the Canadian and Indian electoral systems. See Riker, 76 Am Pol Sci Rev at 760-61 (cited in note 197).
278. Id at 223. Riker set forth his own revision to take into account the Canadian and Indian electoral systems. See Riker, 76 Am Pol Sci Rev at 760-61 (cited in note 197).
279. For a statistical analysis reaching the conclusion that district magnitude (M), "the number of seats filled at an election in a district, is a most important feature of electoral systems," see Rein Taagepera and Matthew Soberg Shugart, Seats and Votes: The Effects and Determinants of Electoral Systems 19 (Yale, 1989). The authors state what they call a "generalized Duverger's Rule" that "[t]he effective number of electoral parties [N] is usually within ± 1 unit from N = 1.25 (2 + log M)." Id at 145. In contrast, Aldrich claims that "Duverger's law does not depend on single-member districts, but it is clear that having single-member districts instead of at-large elections or multimember districts accentuates the pressures plurality elections impose toward two-party systems. " Aldrich, Why Parties? at 56, 303 n 24 (cited in note 107). Of course, the United States has both a prevalence of single-member districts and plurality voting, so it does not provide a good case for testing the alternative theories.
280. For a statistical analysis reaching the conclusion that district magnitude (M), "the number of seats filled at an election in a district, is a most important feature of electoral systems," see Rein Taagepera and Matthew Soberg Shugart, Seats and Votes: The Effects and Determinants of Electoral Systems 19 (Yale, 1989). The authors state what they call a "generalized Duverger's Rule" that "[t]he effective number of electoral parties [N] is usually within ± 1 unit from N = 1.25 (2 + log M)." Id at 145. In contrast, Aldrich claims that "Duverger's law does not depend on single-member districts, but it is clear that having single-member districts instead of at-large elections or multimember districts accentuates the pressures plurality elections impose toward two-party systems. " Aldrich, Why Parties? at 56, 303 n 24 (cited in note 107). Of course, the United States has both a prevalence of single-member districts and plurality voting, so it does not provide a good case for testing the alternative theories.
281. For a statistical analysis reaching the conclusion that district magnitude (M), "the number of seats filled at an election in a district, is a most important feature of electoral systems," see Rein Taagepera and Matthew Soberg Shugart, Seats and Votes: The Effects and Determinants of Electoral Systems 19 (Yale, 1989). The authors state what they call a "generalized Duverger's Rule" that "[t]he effective number of electoral parties [N] is usually within ± 1 unit from N = 1.25 (2 + log M)." Id at 145. In contrast, Aldrich claims that "Duverger's law does not depend on single-member districts, but it is clear that having single-member districts instead of at-large elections or multimember districts accentuates the pressures plurality elections impose toward two-party systems. " Aldrich, Why Parties? at 56, 303 n 24 (cited in note 107). Of course, the United States has both a prevalence of single-member districts and plurality voting, so it does not provide a good case for testing the alternative theories.
282. See Gerald M. Pomper, with Susan S. Lederman, Elections in America: Control and Influence in Democratic Politics 38-40 (Longman, 2d ed 1980).
283. See Aldrich, Why Parties? at 57 (cited in note 107) (the wasted vote logic "rests on the problematic assumption that voters base their decisions on the probability of making or breaking ties"). To speak of "wasting" a vote on a third party candidate implies that there is such a thing as a vote that is not wasted. As Riker has observed: "If the chance to influence is negligible, then energy spent on a calculus and sophisticated voting is wasted and irrational."
284. Riker, 76 Am Pol Sci Rev at 764 (cited in note 197);
285. see also Paul E. Meehl, The Selfish Voter Paradox and the Thrown-Away Vote Argument, 71 Am Pol Sci Rev 11 (1977). The rationality of sophisticated voting is best understood as part of the voters' illusion, whereby voters believe that their decision to vote affects whether many others decide to vote as well. On the voters' illusion,
286. see George A. Quattrone and Amos Tversky, Contrasting Rational and Psychological Analyses of Political Choice, 82 Am Pol Sci Rev 719, 733 (1988). Given the (nonrational) voters' illusion, voting (and, by extension, sophisticated voting) is rational.
287. See Hasen, 144 U Pa L Rev at 2164 (cited in note 150).
288. Schattschneider, Party Government at 82 (cited in note 81).
289. See, for example, Paul R. Abramson et al, "Sophisticated" Voting in the 1988 Presidential Primaries, 86 Am Pol Sci Rev 55 (1992); Jerome H. Black, The Multicandidate Calculus of Voting: Application to Canadian Federal Elections, 22 Am J Pol Sci 609 (1978); Bruce E. Cain, Strategic Voting in Britain, 22 Am J Pol Sci 639 (1978).
290. See, for example, Paul R. Abramson et al, "Sophisticated" Voting in the 1988 Presidential Primaries, 86 Am Pol Sci Rev 55 (1992); Jerome H. Black, The Multicandidate Calculus of Voting: Application to Canadian Federal Elections, 22 Am J Pol Sci 609 (1978); Bruce E. Cain, Strategic Voting in Britain, 22 Am J Pol Sci 639 (1978).
291. See, for example, Paul R. Abramson et al, "Sophisticated" Voting in the 1988 Presidential Primaries, 86 Am Pol Sci Rev 55 (1992); Jerome H. Black, The Multicandidate Calculus of Voting: Application to Canadian Federal Elections, 22 Am J Pol Sci 609 (1978); Bruce E. Cain, Strategic Voting in Britain, 22 Am J Pol Sci 639 (1978).
292. Amy gives the example of the 1980 U.S. Senate Race in New York: That year three candidates ran - Alphonse D'Amato (Republican party), Elizabeth Holtzman (Democratic party) and Jacob Javits (Liberal party). Eleven percent of the voters opted for Javits, which took votes awav from the other liberal candidate, Holtzman. She lost to D'Amato by one percentage point - 45 percent to 44 percent - largely because probable supporters defected to Javits. Polls indicated that most of Javits's votes would have gone to Holtzman in a two-way race between she and D'Amato. But in a plurality system those votes for the Liberal party candidate simply ensured that the most conservative candidate won. Amy, Real Choices/New Voices at 85 (cited in note 6).
293. See Aldrich, Why Parties? at 57 (cited in note 107).
294. Riker, 76 Am Pol Sci Rev at 765 (cited in note 197) (citation omitted).
295. John H. Aldrich and William T. Bianco, A Game-Theoretic Model of Party Affiliation of Candidates and Office Holders, 16 Mathematical Computer Modeling 103, 116 (1992). The choice of parties matters to politicians primarily during a time of party realignment, as when the Republican party challenged the Whigs to be the main competitor with the Democrats. See id at 114-15; see also Aldrich, Why Parties? at 126-56 (cited in note 107) (describing Whig-Republican competition).
296. John H. Aldrich and William T. Bianco, A Game-Theoretic Model of Party Affiliation of Candidates and Office Holders, 16 Mathematical Computer Modeling 103, 116 (1992). The choice of parties matters to politicians primarily during a time of party realignment, as when the Republican party challenged the Whigs to be the main competitor with the Democrats. See id at 114-15; see also Aldrich, Why Parties? at 126-56 (cited in note 107) (describing Whig-Republican competition).
297. John H. Aldrich and William T. Bianco, A Game-Theoretic Model of Party Affiliation of Candidates and Office Holders, 16 Mathematical Computer Modeling 103, 116 (1992). The choice of parties matters to politicians primarily during a time of party realignment, as when the Republican party challenged the Whigs to be the main competitor with the Democrats. See id at 114-15; see also Aldrich, Why Parties? at 126-56 (cited in note 107) (describing Whig-Republican competition).
298. Aldrich, Why Parties? at 12 (cited in note 107).
299. Cox indicates that elimination of single member districts and plurality elections would indeed affect the number of parties in the United States: "Does anyone believe that the United States would remain a two-party system, even if it adopted the Israeli electoral system?" Gary W. Cox, Making Votes Count: Strategic Coordination in the World's Electoral Systems 19 (Cambridge, 1997).
300. Timmons, 117 S Ct at 1381 (Stevens dissenting). In a sense, the Court majority was correct that successful fusion politics, as in New York, leads to a party system with more than two parties. But even in New York, the two parties still dominate: the Republican and Democratic candidates remain the only viable candidates. See Cox, Making Votes Count at 91-92 (cited in note 214).
301. Timmons, 117 S Ct at 1381 (Stevens dissenting). In a sense, the Court majority was correct that successful fusion politics, as in New York, leads to a party system with more than two parties. But even in New York, the two parties still dominate: the Republican and Democratic candidates remain the only viable candidates. See Cox, Making Votes Count at 91-92 (cited in note 214).