Political Parties Are Illegal in the United States

This is a guest post by Michael Kinnucan. 

A longstanding concern on the US electoral left is the issue of “candidate accountability” – if we elect a left-wing candidate, how can we be sure that he or she will stay true to our politics while in office? It’s a big problem. One solution regularly proposed is that the left needs to break with the Democrats and build a third party. Rather than continuing to run candidates on the Democratic ballot line, the left should create its own party; such a party could endorse only candidates fully vetted by and accountable to the party membership, and could discipline candidates–even revoke their party membership–if they moved right in office.

This is an appealing idea. Unfortunately, here in the United States, creating a formal political party which exerts this kind of control over candidates is illegal. 

I want to be clear that I don’t mean building such a party is merely difficult. Many opponents of third-party strategies point to various aspects of the US political system that make it hard to get a third party off the ground: first-past-the-post elections, the presidential system, ballot access laws, Duverger’s Law, etc. These points are well-taken, but if our goal is to create an ideologically unified and accountable party, they’re simply beside the point. Building a party that can enforce candidate accountability to the collective political judgment of party members isn’t merely difficult in the US, it’s impossible. US election law simply forbids such parties.

What do I mean by this? Well, let’s say you and I and our friends feel like we have a good idea for doing Socialism, and we form the Socialism Party together, and we write some bylaws and create an endorsement process and jump through the hoops of getting ourselves a ballot line. (This process varies by state but usually involves collecting a lot of signatures and so forth. In most states the barrier isn’t insuperably high; even PSL often manages it.) Our idea is that we, the dues-paying members of the Socialism Party, will vote on who to endorse, and then whoever we endorse for any office will appear on the Socialism ballot line and voters who like Socialism can vote for them. The Socialism Party will never endorse milquetoast liberals, and if some of its elected officials stray from the fold, the Socialism Party will drop them from its line. When voters vote the Socialist ticket they’ll be sure they’re voting for genuine Socialists.

Procedural Regulation Makes Candidate Accountability Impossible

At this point many moderate progressives will raise pragmatic objections; they’ll ask whether we have enough of a base to launch a party, worry about the spoiler effect, and so forth. But these objections are irrelevant, because what I just described is illegal in the US. You just can’t do it! Because, in the US, the state will come in the moment we’ve won a ballot line, and it will say “hold up, wait a minute, you want to just have some self-selecting party insiders endorse candidates based on whatever made-up system is in your bylaws? Well, we won’t stand for that. We make the rules. The only way you’re legally allowed to select candidates is through a state-sponsored formal election (a “primary”) run according to state rules and administered by state and local boards of elections.”

What are the state’s rules? Well, they’re things like:

• Maybe the Socialism Party wants to select candidates at its annual convention after a rich and edifying political debate. Too bad, that’s illegal. The state doesn’t care for these smoke-filled room candidate selection processes, it got rid of them back in the Progressive Era. Candidates will be selected inside a state-sponsored ballot box by individual voters.
• Maybe the Socialism Party wants to select candidates on a statewide basis–deciding strategically which districts to run candidates in, strategically targeting resources to those races, and ensuring ideological unity across the slate. Too bad, that’s illegal. The state thinks local voters should have a voice in who runs locally. Candidates will be selected by party members in whatever district they want to run in. If the six party members in some random rural county want to run one of themselves for mayor, the rest of the party will just have to live with it.
• Maybe the Socialism Party wants to make sure that only dues-paying party members can vote in elections; they don’t want random people who joined because they heard about the Socialism Party on Twitter determining endorsements, and they especially don’t want some grifter stealing the party’s ballot line by persuading all his friends to join and vote in the primary. Too bad, that’s illegal. The Socialism Party is welcome to collect dues and require political education courses to its heart’s content, but the state says it can’t set up arbitrary barriers so that only insiders get to vote in primaries. The state says that the only thing you need to do to vote in the Socialism Party primary is check the appropriate box on a voter registration form.

And so on and so forth, for trivial matters and major ones. Do members of the Socialism Party want to pick candidates through RCV? Too bad, that’s illegal  (except for the few places where it is mandatory). Do members of the Socialism Party want to strip SP elected officials of party membership if they support a war or genocide? Too bad, the state says those elected officials will still be eligible to run and vote in SP primaries.

At this point we in the Socialism Party are really in a bad way. We created a party specifically so that we could escape corruption by the liberals and impose party discipline and so forth, but instead we’ve created a system where any state rep candidate who can get a couple dozen people to check a box on a form in any district in the state can run as an official candidate of the Socialism Party and we can’t do a thing about it.

The Practical Consequences of Procedural Illegalities

Would this really happen? It very much would. To take the most obvious example, in states where the Green Party has a ballot line, Republican candidates can and do pick up the Green line, figuring to get a few votes out of leftists who vote straight-ticket without doing much research.

Some may think this is just an edge case and not a fundamental objection. Sure, tiny and pointless parties like the Greens may not be able to use a ballot line effectively, but a true mass-base socialist party will be a different matter. A Socialism Party candidate running in a primary where only Socialism-registered voters can vote will still be accountable to Socialism.

This is an illusion. Candidates of the Socialism Party in local constituencies will become rooted in those constituencies; they’ll develop a strong base of local support among local Socialism-registered voters by tailoring their message to the views of those voters. They will also work (as they certainly should) to develop strong roots in their district and help build the Socialism Party’s base in their district, and will naturally encourage more people to register as Socialism Party voters. Many of those new registrants will have a much stronger connection to their local rep than they do to the party as a whole. An extremely successful Socialism Party, one that really came to dominate specific demographics and constituencies, would find itself in such a dominant position in some districts that many people would register Socialism just to vote in the primary—just as we do now.

In these conditions, there’s simply no reason to think that the Socialism Party as such could exercise meaningful control over its candidates. When the Party demanded that its elected officials take unpopular votes, many candidates would respond that they didn’t think those votes were right for their district, and that Socialism voters in their district agreed with them—and they’d be proven right in the next Socialism Party primary, which they would win hands-down.

Socialists who doubt me on this would do well to consider the case of Alexandria Ocasio-Cortez and the Democratic Socialists of America. Many people in DSA have spent an enormous amount of time worrying about AOC’s accountability to DSA. These concerns came to a head last year when DSA’s 18-member national leadership body voted not to endorse her last year (although New York City DSA chose to endorse anyway). But it has always been pretty clear that AOC would win a referendum vote of DSA members on endorsement at either the national or the local level. The average DSA member doesn’t know much about the complex concerns some DSA leaders have with her position-taking, they just know her as a prominent, charismatic and successful socialist elected official, and they like her. And no one can doubt that a poll of DSA members in AOC’s district would go overwhelmingly in her favor: Many of those people joined DSA because of AOC’s campaigns, many of them know her personally, and they are overwhelmingly aligned with her politics. If DSA were a formal political party, the only body empowered to make endorsement decisions about AOC would be those in-district members—and all it would take to become a member would be to check a box on a voter registration form. A DSA non-endorsement of AOC would become inconceivable.

Some people on the left wing of DSA argue that we need to form our own party so we can avoid candidate accountability issues like the ones they perceive in our relationship with AOC. But, as I have shown, this is exactly wrong: DSA can address candidate accountability issues only to the extent that it is not a formal political party. A formal political party would have no way of unendorsing someone like AOC.

Why is the US like this?

To be clear, this isn’t some special feature of left-wing third parties in the US; it applies to all ballot-line political parties, including the Democrats and the Republicans. That’s why AOC was able to win a Democratic primary in the first place, taking out one of the most powerful Democrats in Congress against the entire weight of the state and national Democratic Party structure. If the Democrats had been able to disqualify AOC from running as a Democrat, or disqualify left-wing voters from voting in primaries, or overturned her primary win at a higher level of government, no doubt they would have. But they can’t.

It’s a bit of an odd situation, when you think about it. If you and I and our friends decided to start some other kind of organization–a cat fanciers’ club, or a soup kitchen, or the National Rifle Association, or the Democratic Socialists of America–we could set whatever rules for membership and office-seeking we thought best and the state wouldn’t say a thing about it. Indeed, it would be seen as grossly intrusive and perhaps a First Amendment violation if the state were attempt to dictate the bylaws of civil society organizations. But the case is different with political parties. In the US, all the most significant decisions of a ballot-line political party are determined by state law.

This isn’t true in most countries. In the UK, for example, the national elected leadership of the Labour Party is perfectly capable of forbidding an individual from running for office as a Labour candidate; that’s what they did to Jeremy Corbyn. The Labour Party didn’t have to go to Corbyn’s district and door-knock, or drop a million-dollar independent expenditure on him, to knock him off the Labour line; they simply voted him off, as they had a perfect right to do. In most countries the idea that the elected leadership of a party can decide who runs on that party’s line seems quite natural–what else could it mean to have a political party?

But in the US, parties just aren’t allowed to do that—not the Democratic Party and not the Socialism Party. The Democratic Party can’t stop AOC (or Joe Lieberman, or Kyrsten Sinema, or Ilhan Omar) from running as a Democrat.

The question of why the US regulates political party selection of candidates down to the last detail would take us beyond the scope of this essay. Briefly, though, state regulation of parties is best seen as a reformist compromise ameliorating the anti-democratic effects of the two-party duopoly. In most countries, parties can choose candidates in any way they see fit, including in ways that exclude ordinary voters from having a voice. But the potentially undemocratic effects of these selection processes are mitigated by the fact that voters who don’t like the outcomes can split and form another party. In the US, our law on political parties reflects a judgment that voters can’t (as a practical matter) form a separate (viable) party, and so as a consolation prize we have the legal right to influence the candidate selection processes of the parties we’re stuck with.

This compromise means that US political parties are strange institutions, quite unlike political parties in other democratic countries. It would be barely overstating the case to say that the US simply doesn’t have political parties. The two major US political parties are perhaps best viewed not as civil society organizations but as features of the US electoral system; in this interpretation, the US effectively has a two-stage “runoff” electoral system like the French presidential election system, where anyone can run in the first round and the top two vote-getters then run head to head. But unlike in France, the first stage of this runoff is organized on roughly ideological lines, where candidates who choose to label themselves as vaguely left-of-center run in a separate first-round election from candidates who choose to label themselves as vaguely right-of-center.  In this analysis, becoming a “member” of a major party means no more than deciding which first-round election to vote in. The parties aren’t so much civil society organizations that have their major internal decisions shaped by electoral law, as features of the electoral law that for historical reasons are named after formerly significant institutions in civil society.

That may be going too far, but it’s very important emphasize the enormous gap between the major parties in the US and what the rest of the world understands by the term “political party.” If you went to the leadership bodies of political parties in other countries and said “we are forbidding you to choose which candidates run for election as candidates of your party,” they would be justified in asking “good lord, what’s left to us? What does it mean to be a party without that? How can we meaningfully advance a political program in the legislature if we can’t even determine in any organized way which candidates we elect to office?”

In the US, we know what’s left: Moribund and irrelevant state committee structures that serve as the replaceable appendages of wealthy donors and powerful individual politicians, plus a vague brand with which voters can vaguely identify. It’s really not very much.

The Objections

It is difficult for many Americans to grasp this point because Americans simply don’t have any experience of a “real” political party. They’ll say “how can you say that the Democratic Party doesn’t exist as a real political party? Democratic Party powerbrokers, including shadowy donors and prominent politicians, screwed Bernie Sanders and Jamaal Bowman, for example; the party exerted real power.”

The objection itself is telling. For Americans, a “party” is a vague and nebulous constellation of wealthy donors, prominent politicians and political brand identifications whose power consists in their ability to coordinate to influence primary voters. That nebulous constellation certainly exists, and it’s not tied to a particular ballot line—many interest groups, like AIPAC and the charter school lobby, coordinate to influence primary voters in both major parties (and could do so in the Socialism Party, too). But Americans tend to miss the glaringly obvious fact that “the Democratic Party,” as a formally constituted institution in civil society—as the DNC and state Democratic committees and so on—is utterly powerless to decide who runs as a Democrat, while the UK Labour Party can ban a prominent and popular former party leader by a simple vote at a scheduled meeting. Americans miss this because they’re barely aware of the formally constituted Democratic Party bodies, and they’re barely aware because these bodies mostly don’t matter. Because, again, having formal party bodies that matter in the way that the Labour Party’s leadership committee does is illegal in the US.

Finally, some will argue that this legal regime shouldn’t be an obstacle to the left. They’ll say “come on, Michael, you say that it’s illegal to form political parties in the US, but Socialists formed independent political parties even in tsarist Russia. Surely the legal regime is less hostile here, and in any case, surely it’s our job to overcome it.”

And what I’d say is–well, yes, if by “political party” you mean an organized group of socialists who make collective decisions on the basis of their shared politics and contest elections, we certainly can build such an organization–and not only that, but we already have done so. It’s called DSA!

But if you mean “an organization like DSA, and also we control a ballot line” – no, I’m sorry. Ballot lines are creatures of the state. The state gets to set the rules on who gets to use one and under what circumstances, and the state has set rules such that it is ILLEGAL for us to have an organized group of socialists who make collective decisions and have those decisions be binding on an electoral US party. It’s not merely hard or impractical – it’s impossible.

Conclusion

In DSA and on the US left more broadly, when we argue about whether to use the Democratic Party ballot line or create our own ballot line so we can have a disciplined party, the debate is often over whether our own ballot line is a necessary condition for party discipline and coherence (“can we build a caucus of elected socialists if they’re elected on the Democratic line, or do we need our own line?”) That’s the wrong question. The right question is whether our own ballot line is even compatible with discipline and coherence (“can we maintain electoral unity when our decision-making process on who to back electorally is taken out of our hands, broken up across hundreds of districts and opened to anyone who wants to participate?”) and the answer is, obviously, no we can’t.

This is a double-edged sword for the left. On the one hand, we can’t build our own ballot-line party that enforces candidate discipline through collective decisions. But on the other hand, neither can “the” Democratic Party. “The” Democratic Party is legally bound to let us run on “their” ballot line in “their” internal (primary) elections. If they weren’t – if the laws were different – then we’d find it both necessary and also possible to form a ballot-line third party. As things stand, it is not necessary and also not possible.

None of this is to say that we can stop worrying about candidate accountability and party discipline. The absence of real, disciplined political parties is a colossal problem in US politics; not only does it confront the socialist left with the constant threat of political co-optation, but the very same issue makes it enormously difficult for even moderate Democrats to enact their political agenda. One need think only of the fate of Biden’s very progressive domestic agenda in 2021-22 at the hands of Joe Manchin and Kyrsten Sinema. The lack of a framework for meaningfully accountable electoral representation in the US is a huge barrier to enacting not only radical but even moderate reforms.

But the left is deluded if it believes that forming a new ballot-line political party will help overcome this barrier. Realistic efforts to address the problem of party accountability and discipline must begin from the observation that these characteristics, which are intrinsic features of formal political parties in most democracies, are incompatible with formal political partyhood in the US.