Are Political Parties ‘Private’?

Are U.S. political parties “private” organizations, or are they public? The answer to that question may be at the heart of what is wrong with American politics, and there doesn’t seem to be an agreed-upon answer to it. Some say that political parties are “semi-public,” which sounds a bit like being “semi-private.”

In his The Parties in Court: American Political Parties under the Constitution (2013), Robert C. Wigton writes:

Political parties have long occupied an uncertain place in American constitutional law. Parties were not mentioned in the Constitution and developed largely outside the constitutional system. As a consequence, they have grown to possess attributes of both public and private organizations and undertake activities associated with both types of organizations.

If American political parties have evolved into hybrid entities, then another question arises: should the parties be entirely private? If not, should the parties have absolute autonomy in any area? If there is an area in which political parties should have self-determination, it is in deciding who their candidates for office are, especially their nominees for U.S. president.

If the parties are a mix of private and public, that’s surely due to the slew of state laws that regulate the parties. It is the states that make requirements on the parties to conduct primaries, caucuses, and conventions to determine who the delegates are to the parties’ national presidential nominating conventions. The states even presume to dictate (i.e. bind) how those delegates will vote. Such laws may well be unconstitutional.

On April 9, Cato Institute ran “Political Parties Belong to Their Members” by Roger Pilon, who writes: “Principled Republicans have been dismayed by the way this primary season has gone, rightly believing that their party has been hijacked by people having little or no connection with the party or its principles as articulated over the years in party platforms.” Pilon concludes that if the GOP convention delegates succeed in nominating a true Republican, “perhaps the first order of business should be to work with the states toward restoring the principle that political parties are private entities, not extensions of the government, and how they run their affairs are for their members alone to decide.” (Agreed, but who are these “members”?)

What occasioned Pilon’s blog was an article that appeared the previous day in the Wall Street Journal, “The Case for a Really Open GOP Convention” by Kimberly Strassel. The article is a profile of Eric O’Keefe:

The veteran Republican grass-roots activist sees a contested convention as a once-in-a-lifetime opportunity for the delegates of a private political party to assert their power. The results of the GOP primaries are hardly representative of the party’s will, Mr. O’Keefe says, because state parties have been wrecked by domineering state legislatures. Why should Republicans bow down, for instance, to the results of state-mandated open primaries that allow liberal and independent voters to bum-rush what is supposed to be a private poll?

“There’s nothing that special or even good about the government-run primary process,” Mr. O’Keefe says. Relishing the opportunity for Republican delegates to stand up for themselves, he is gearing up a campaign to educate and encourage them to exercise their prerogatives at the convention and to ignore specious insistence that they follow some imaginary obligations.

Kevin Williamson’s March 2 article at National Review, “Why Democrats Aren’t Democratic (and Republicans Shouldn’t Be),” should be read by “conservatives” who think that our political parties should be regulated:

One of the harebrained progressive reforms foisted upon our republic is the so-called open primary, which amounts to something close to the abolition of political parties as such. If anybody can vote in the Republican primary -- Republican, Democrat, Libertarian, Green, independent, etc. -- then membership in the party does not mean very much, and, hence, the party itself does not mean very much. […]

The political parties are not public agencies. We have constitutional guarantees of freedom of association, and the parties ought to be able to simply reject a candidate. They might not be able to simply select a nominee, but they could exercise, with complete propriety, a veto power. Under such a system, Trump would be free to run for president in any manner he saw fit, but not under the Republican banner, unless the Republican party itself consented.

Okay, but who are these people who “consent”? Indeed, what precisely is the Republican Party? How does one become a member of it?

Those are not idle questions. How you answer them would likely indicate what you think about the parties’ status as “private.” Some might think one is a Republican if one registers as a Republican in those states that have party registration; one could then say one is a “card-carrying Republican.” But anyone can register in any party. Some believe that voting in a Republican primary makes you a Republican. But anyone can do that. Some might contend that to be a real member of the GOP means you have to contribute to the cause, as in money or time.

Such positions on who is a member of the Republican Party are mistaken; party members are the apparatus, the people in the organization. Party members are also the delegates who attend the national convention to nominate their presidential nominee. Delegates should come from the party’s organization only, not be elected, nor chosen by candidates. If parties aren’t “private” enough to be able to choose their members and delegates, then parties are farce.

Why do the states have this plethora of laws governing the parties? The main reason is ballot access. The states need some mechanism to keep everyone and his idiot uncle from running for office. So they create hurdles to get on the ballot; perfectly reasonable. But in the case of our two major parties, and especially with regard to the presidency, some slack needs to be cut. The two major parties are the only parties since before the War Between the States that have provided us with presidents; the states should not be making them jump through hoops to grant them places on their ballots for their presidential nominees. The two major parties should be granted automatic ballot access without having to go through the rigors and expense of primaries or signature gathering.

For years now I’ve contended that convention delegates should just ignore the primaries and vote their consciences. But commenters counter with blather about “democracy,” as though the general election will not afford them the right to exercise their franchise. They feel that not only must they be able to decide who wins the game, but also who gets to play the game. This is all progressive thinking. Progressives understand that many voters will always vote their self-interest, not the interest of the country. And so the voters give us more Big Government to dole out even more free stuff. Progressives think there can never be too much “democracy,” even in a republic.

Jon N. Hall is a programmer/analyst from Kansas City.

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