By Mike Dorf
Occasioned by the passing of Senator Lautenberg, my latest Verdict column sets out two criteria that I believe that governors generally ought to apply in naming interim replacements to fill Senate vacancies: 1) Name someone of the same political party as the departed Senator; and 2) name someone who will not run for election in the special or general election, i.e., a caretaker Senator. Both criteria aim to preserve the status quo: The first criterion respects the state electorate's most recently expressed party preference for the seat; the second criterion avoids conferring the advantage of incumbency on a candidate who never was elected.
The column explains why governors typically do not name a member of the opposite party and only sporadically name a caretaker. It then argues that state or federal laws that constrain a governor's choice along the foregoing lines are probably unconstitutional. I conclude that we are left with suboptimal reliance on the statesmanship of governors--whose own political constraints make such statesmanship difficult. That state of affairs, I suggest, is at least partly the result of the fact that we have a political system that is utterly dependent on political parties but a Constitution that was designed by men who loathed parties.
Here I want to add a few words about the more general issue of how parties are treated under the Constitution. It's not surprising that, given the original Framers' views, the original Constitution nowhere mentions political parties. What is surprising is that, with one small exception, none of the amendments do either. After all, political parties developed very early in American history, leading to the stalemate in the 1800 Presidential election. Yet the 12th Amendment, which facilitated smoother elections with party-based presidential tickets, does not expressly acknowledge the existence of parties. Neither do any (but one) of the subsequent election-related amendments: the 15th; 17th; 19th; 23rd; or 26th. The one exception is the 24th Amendment, which forbids the imposition of a poll tax in federal elections, including "primary" elections. That's it. In the entire Constitution, the only recognition of political parties is that one, almost tacit, acknowledgment that primary elections happen.
Contrast provisions of some other national constitutions, like Article 4 of the French Constitution or the German Constitution's Article 21--which protect political parties as such. To be sure, U.S. case law construes the First Amendment right to political association to afford broadly similar rights to form political parties, but the text of the U.S. Constitution does not say (as some other constitutions do) that political parties are essential to representative government. Meanwhile, some non-democratic constitutions, like the Chinese Constitution, expressly provide for the central role of just one party (in this case, the Communist Party).
The omission of any express role for parties in the text of the Constitution is not merely a stylistic oversight. It has potentially important consequences for how our system of government functions. The underlying theory behind Madisonian checks and balances is that various institutions would check one another: states versus national government; Congress versus the President. Political parties re-direct loyalties away from institutions.
Nonetheless, some scholars have explained that political parties actually do a creditable job of implementing, rather than frustrating, the original vision. For instance, in a 2000 article, Larry Kramer argued that political parties are a key, and often overlooked, vehicle by which the states take advantage of what Herbert Wechsler called the "political safeguards of federalism"--the protection for state autonomy in the structure of the national government.
The picture for separation of powers among the branches is more complex. As Daryl Levinson and Rick Pildes argued in a 2006 article, during periods of divided government, separation of powers may be even stronger than the framers anticipated: Although there is less loyalty to institutions, party loyalty ensures that if either the House or the Senate is in the hands of the party that does not hold the White House, we can expect vigorous inter-branch competition. Levinson and Pildes worried that in periods of unified government, party loyalty would mean that separation of powers would not function at all, but they wrote before the use of the filibuster had become as routine as it now has. In an era in which 60 votes in the Senate are required to accomplish anything substantial, even unified government will usually look like divided government, preserving the separation of powers.
The overall impression one gets from the two papers is that even though the framers thought ill of political parties, such parties in fact play a vital role in implementing the two key structural features of our constitutional system. From a libertarian perspective, this is good news. However, from a different perspective, this is terrible news, because the structural features of federalism and separation of powers serve mostly to frustrate the federal regulatory enterprise, and one might fairly conclude that the chief political problem in the United States relative to other advanced democracies is that our regulatory state is under-developed and under-funded.