In Bostock, Gorsuch reaches the semi-mystical conclusion that any word or concept having to do with “sex” may constitute “sex discrimination."
Sidney Milkis represents the finest tradition of American political science. His research on the presidency and the parties has always been topnotch, and his broad understanding of political history gives his analysis of contemporary affairs special weight. Best of all, the University of Virginia’s White Burkett Miller Professor of Politics is interested in the big questions, the answers to which are useful not only to academics but to all of us who wish to become better citizens. Milkis’ talents are on full display in his fine Liberty Forum essay on the highly deranged state of our political parties and our politics.
America’s eighth President, Martin Van Buren, argued in his autobiography that because parties were the most effective way to check “the disposition to abuse power,” it behooves us to try to reckon with them in a sincere and wise manner, to “recognize their necessity, to give them the credit they deserve, and to devote ourselves to improve and to elevate the principles and objects of our own and to support it ingenuously and faithfully.” Professor Milkis has offered such an analysis, concluding that our present situation is marked by “an unfiltered partisanship without parties.” I think this thesis is almost certainly correct. Rather than quibble over this or that item in his essay, I’m instead going to take up his concluding exhortation for readers to think institutionally about the political parties.
Such an approach must begin with an acknowledgement that form ought to fit function. If the parties are to accomplish certain tasks, they must be designed to do so. History offers clarity on what those tasks are. The first major party—the “Republican” Party (not the modern version, but that founded by Thomas Jefferson, James Madison, and other opponents of the Federalists led by John Adams and Alexander Hamilton), was built to undertake three essential tasks.
First, it brought together agents in government who had common principles. Edmund Burke defined a party as “a body of men united, for promoting by their joint endeavors, the national interest, upon some particular principle in which they all agreed,” and such an alliance existed in our government as early as the Second Congress, spreading quickly thereafter to connect officeholders at the federal, state, and local levels. The depth and scope of this intergovernmental alliance became evident in 1792, the year that George Washington won his second presidential term in the Electoral College but the Republicans challenged the second-place finish of Vice President John Adams (there were no presidential “tickets” in those days).
It was also during the 1790s that Jefferson’s party began to nominate candidates for office, via extra-governmental organizations. This second major function grew out of the Republicans’ anxiety about officeholders’ potential conflicts of interest. They feared that candidates, lured by the prospect of personal riches from the Federalists’ economic policies, would betray the interests of their constituents once in office. A proper nomination process, the Republicans judged, could ensure that representatives of “fit character” would occupy the positions of public trust.
Third, the Republicans took responsibility for disseminating information to the public. The debut issue of the National Gazette, published in October 1791, marked the origins of the Republican press. By 1800, it had grown so extensive that Federalist Senator Uriah Tracey of Connecticut complained that there was a Republican paper “in almost every town and county in the country.” The Federalists viewed these as propaganda-spreading rags, and to a certain extent this was true; but they also served a pedagogical function, educating voters about the doings of the government, clarifying the stakes in the upcoming election, and differentiating candidates on the basis of who held which views. As Madison put it, such newspapers were essential in facilitating “a general intercourse of sentiments” in a polity as large as the United States.
It was not coincidental that the first organized party called itself Republican. For Madison, public opinion was the true sovereign in a republic. What was necessary was a government that not only respected the sentiments of the people, but elevated and broadened the civic discourse, so that popular opinion would better reflect the welfare of the nation.
Although this primordial Republican Party—from which not only the Democrats, but also the Whigs, and also the GOP we know today, sprang—was an extraconstitutional institution, it was working toward the same purpose that the Framers had set for the 1787 Constitution. The Framers were caught on the horns of a dilemma: Most of them rejected the idea of a mixed regime, akin to the British system. In a true republic, the people had to be the sole sovereign.
But history had shown this to be an ouroboros—a snake that eats its own tail. Even as the people must rule in a republic, the rule of the people leads to majoritarian tyranny, which in the end destroys the republic. The Constitution therefore intended to set up a government that empowered the people to rule, while guiding public opinion into its proper channels, and elevating it so that it was more commensurate with the public good. The Republican Party was to aid this constitutional process, by making public opinion count as much as possible but be as responsible as possible.
As Elmer Eric Schattschneider has written, parties are an “organized attempt to get control of the government.” Thus a proper party organization must be tailored specifically to the government it is trying to control. This suggests that political parties in America cannot remain static entities. As the government evolves, so too must the parties trying to manage it.
The politicos of the 19th century seemed to have an almost preternatural understanding of this fact, for Jefferson’s party and the others that came along (the Federalists petered out early in the century) evolved with breathtaking speed, remaining more or less suited to the demands of statecraft. The parties also became more sophisticated at courting public opinion—staging large rallies, initiating appearances by the major candidates, and refining their use of newspapers. At times when they failed to adapt, reform movements quickly rose up and often succeeded in updating the parties accordingly. It is outside the scope of this essay to detail the successes of the 19th century parties—but it suffices to say that they did a remarkable job of holding the union together for as long as possible before the Civil War, and after that conflagration managed deep sectional, ethnic, religious, and economic tensions so that the union itself never again came into jeopardy.
But the New Deal posed a stiff challenge to the parties, with the new functions it set for the federal government. The parties resisted revising their practices to manage these new functions. To be sure, one cannot blame Franklin Roosevelt, the architect of the New Deal, for this obstinacy. He was at his core a party man, with a 19th century-style intuition for the centrality of parties to American politics. He endeavored to modernize the Democratic Party just as he was modernizing the administrative state.
FDR worked behind the scenes in 1933 to displace Tammany Hall from the mayoralty of New York City, thereby defanging the most powerful local political organization in the United States. In 1936, he successfully had the two-thirds threshold removed from the presidential nomination rules of the Democratic National Convention, undercutting the ability of the segregationist Democrats in the South to dictate terms to their co-partisans in the North and West. In 1938, he sought to purge recalcitrant Democrats (mostly from the South) via party primaries. In 1944, he coordinated with key party “stakeholders,” like Sidney Hillman of the Amalgamated Clothing Workers, to select a new vice presidential nominee, demoting the party regulars on the convention floor to a perfunctory role. His goal was to transform the Democratic Party from a hodgepodge coalition built on local prejudices, personal loyalties, and ethnic-religious anxieties into a national coalition arranged around basic ideological commitments regarding how the federal government should function.
The New Deal itself necessitated this change. (And the very same change was to be felt, if indirectly, in the Republican Party.) As the prominent New Dealer James Rowe wrote to Harry Truman in a 1948 strategy memo: “Better education, the rise of the mass pressure group, the economic growth of government functions—all of these have contributed to the downfall of the [party] ‘organization.’” Rowe went on to argue that the Democratic Party was increasingly being “supplanted in large measure by pressure groups.” By bringing into being the modern administrative state, the New Deal was having substantial downstream effects on politics. The old ways of party business were no longer apt.
But the parties fought back, at least for a spell. FDR’s attempted purge of the Democratic Party in 1938 did not succeed—his chosen primary challengers mostly failed to unseat the members of Congress at whom he took aim—and for some time thereafter, politics still retained a decidedly regional aspect, as well as an ethnic cast traceable to the second-wave immigrants to America from southern and eastern Europe. The American Voter, a landmark study of public opinion published in 1960, found a body politic that seemed largely ignorant of the broader ideological stakes in their voting choices. That began to change, however, in the 1960s.
As Professor Milkis rightly notes, the “New Right” and “New Left” gave partisan conflict a notably ideological emphasis. The Northern Democrats elected in the 1958 midterms were substantially to the Left of their Southern counterparts. Meanwhile, the election of Senator John Tower (R-Texas) in 1961 and South Carolina Senator Strom Thurmond’s switch to the Republican Party in 1964 suggested that the GOP was becoming a home for conservatives, regardless of geography. The ideologues of the New Right and New Left forced major changes in the way Congress—especially, the House—functioned. The electoral waves of 1958, 1964, and 1974 produced a sizeable faction of Northern and Western Democrats intent on removing Southern conservatives from the positions their seniority had once entitled them to.
In due course the activists succeeded, and thereafter power would flow from the caucus itself, rather than from congressional committees, with leadership reflecting the views of its members. When the Republicans finally took control of the lower chamber in 1995, they too were inclined to jettison the tradition of the all-powerful committee chairmen. In recent memory, we have the dethronement, just after the 2008 election, of longtime House Energy and Commerce Chairman John Dingell (D-Mich.) by Speaker Nancy Pelosi (D-Calif.) in favor of a leftwing member of her state delegation, Henry Waxman (D-Calif.). Pelosi struck this blow—it would have been unthinkable half a century ago—to ease the adoption of the climate, energy, and health proposals of President-elect Obama.
Yet as the parties have enhanced their control of the government, the other core tasks I mentioned have atrophied. Consider the presidential nomination process. In Federalist 10, Madison argues that representative government is an improvement over direct democracy because it draws from “men who possess the most attractive merit and the most diffusive and established characters.” It was the job of the parties to select such characters and submit them to the judgment of the voters.
The manner in which the parties did this—most notably, their quadrennial conventions—had certainly become antiquated by the election of 1968, when liberal reformers finally forced the Democratic regulars to agree to modernize their procedures. But rather than update the parties to perform this task better, Democrats and Republicans alike took the nominating power away from the party and transferred it to the voters, in the form of party primaries. Though initiated during the Progressive Era, primaries declined in importance through the middle of the 20th century, until the 1970s, when they became the dominant form of candidate-selection for most offices all throughout the country. This came at the expense of the parties, which now have very little direct influence on who may represent them on the field of electoral battle.
The losers in this schema, ironically enough, are the voters, who while nominally empowered by the open primary are in practice often robbed of a real choice at election time. The primary has become, first and foremost, a way for incumbents to secure renomination—even if they have not been good stewards of the party’s or the public’s interests. It is simply too hard to challenge an incumbent’s monetary advantage in a primary. Primaries are also a way for interest groups to leverage their financial resources, by “investing” in the challengers they believe will give the best “return” if elected to serve.
Thus voters regularly confront a general election ballot that offers, not people of upstanding character with competing views of the general welfare, but a choice between insulated incumbents and self-interested hacks who enjoy the support of well-heeled special interests. The result is perverse: spectacularly high reelection rates for members of Congress combined with spectacularly low approval ratings for the U.S. Congress as a whole.
Moreover, the ancient pedagogical function of the parties has lately been perverted into irresponsible demagoguery by rabble-rousers with no formal ties to the parties, and often with personal interests that run contrary to the parties’ goals. The National Gazette was originally edited by Philip Freneau, who was given a clerkship in the State Department under Secretary of State Jefferson. That established the precedent that the government would fund the party press, via patronage. Party newspapers were rewarded with government printing and binding contracts, or by the prospect that their editors would be eligible for important positions within the government. This may not look good to modern readers, to be sure. But consider that it had the effect of giving partisan newspapers a stake in the success of their patrons, and therefore enabled the party to communicate its message to the voters.
Civil service reform, the rise of professional journalistic norms, and the consolidation of media outlets conspired to rob the parties of this messaging pipeline to the voters. By the 1960s, the average voter no longer received his news from the likes of Niles’s Register (a pro-Whig publication) or the Richmond Enquirer (a pro-Democratic publication), but from (putatively) nonpartisan journalists like Walter Cronkite.
In recent years, this order has been displaced yet again. The transmission of information is now much more ideological, but it would not be accurate to call it partisan, at least in the salutary 19th century sense of the term. The Democratic Party can exercise only indirect influence over the pronouncements at Vox or the DailyKos, while the Republican Party has no direct control over Fox News or the Rush Limbaugh Show. In many instances, these outlets have a stake—be it ideological or financial—that runs contrary to the interests of the party, which makes them very distinct from the media outlets of old run by Hezekiah Niles or Thomas Ritchie.
In sum, the political party has evolved markedly in the last century. It has undoubtedly consolidated its control over the legislature. Meanwhile, its influence over the broader public has weakened, having ceded control of nominations to the people and control over the flow of information to outsiders. One might, at first blush, think this situation consistent with Madison’s view of the large republic in Federalist 10. Is this not just the grand conflict that he had envisioned, playing out before our eyes?
Perhaps, but Madison’s writings for the National Gazette should give us pause. In an essay he published there on September 22, 1792, “A Candid State of Parties,” he warned about the potential of an anti-republican party (he meant the Hamiltonian Federalists) to bewitch citizens out of appreciating their true interests. Such a faction will try to
weaken their opponents by reviving exploded parties, and taking advantage of all prejudices, local, political, and occupational, that may prevent or disturb a general coalition of sentiments.
This seems like a good description of many of the aforementioned actors in today’s political drama—those with the power to influence public opinion, and who wield that power not for the sake of the general welfare but for their private interests. I’m reminded in particular of a comment from Les Moonves, president of CBS, who said Donald Trump’s candidacy “may not be good for America, but it’s damned good for CBS.”
In sum, we have parties that are simultaneously overdeveloped and underdeveloped. The legislature is characterized by bare-knuckle partisan conflict, conducted by leaders who can corral the support of the overwhelming majority of their respective caucuses. But outside the halls of Congress, the parties to which those combatants belong are basically nonentities. Instead, a variety of factions—from interest groups to radio personalities, television pundits, dimwitted “wonks” who write online click-bait, media moguls, eccentric billionaires, civic organizations—all push and pull against one another in a chaotic process to enlist and promote their preferred candidates and influence public opinion. The parties—at least as they were understood up through the New Deal—play virtually no substantive role.
The great insight of our nation’s first partisans was that political conflict had to be managed better than this. Madison and Jefferson intuited this truth more than 150 years before Schattschneider wrote that “the definition of alternatives is the supreme instrument of power.” The people will not rule by themselves, at least not properly. They need to have the realm of political conflict, a realm seemingly boundless in size and limitless in time, delimited and clarified. They need a process that nominates sterling candidates for office, so that their electoral choices may carry real impact. Just as republican government is superior to direct democracy, a partisan republic is superior to a non-party republic—both innovations serve to focus and refine public opinion so that it may exercise its rightful sovereignty. This is the purpose for which the first Republicans instituted their party. Today’s parties have abdicated most of this responsibility.
Recent events remind me of comments made at Constitutional Convention, those of Rufus King of Maine. King, an opponent of the Constitution who later became a High Federalist, was a skeptic of democracy and had good reason for his doubts. He had seen firsthand the dangers of populism in the form of Shays’ Rebellion. He was seated late at the Convention in Philadelphia, but quickly made his views known. On May 31, 1787 he told his fellow delegates:
The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In [Massachusetts] it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.
Most of the Framers had more faith in the people than King did, but they too were skeptical. The Constitution they designed empowered the people but simultaneously checked them. It sought to create a deliberative process that would enlarge the people’s views so they might take into account not just their own wellbeing but everyone’s. And if the Constitution was the hand, the party was the glove. We need to relearn the lesson of Madison and Jefferson, whose party was built to secure the sovereignty of public opinion and make it a responsible ruler. For the verdict of history is clear: an “unfiltered partisanship without parties” is not consistent with republican government in the long run.