New York University Public Law and Legal Theory Working Papers

Document Type



Yale Law Journal, Vol. 124, No. #3, 2014


American democratic romanticism contributes to the current dysfunctionality of the institutions of American government, or so this article argues. Three lines of thought are developed that shape this argument. First, to understand the paralysis of current American government, it is as important to focus on the problem of "political fragmentation" as on the extreme polarization of the political parties By fragmentation, I mean both the internal diffusion of political power away from the party leadership into the hands of individual members, and the external diffusion of power away from the parties to non-party organizations. Today's political polarization is a product of long-term historical processes and likely to be enduring; as a result, deals across party lines are most likely to come from party leaders, who have the strongest incentive to make the party label attractive to the largest electorate. But party leaders can do so only if they can press their recalcitrant members to join the deal; political fragmentation makes that more difficult to achieve. And the communications revolution and online fundraising now enable individual officeholders to function more as independent entrepreneurs than in the past.

Second, America's unique democratic culture and institutional design contribute to political fragmentation. Our system is much more individualistic and populist in structure than that of other mature democracies. Campaign finance laws, for example, are based on the idea of an individualistic, candidate-centered system of elections, rather than one in which the central organizations of politics -- the political parties -- play a central role. In the particular American version of "democratic accountability," our officeholders are subject to more frequent elections, including primaries, than elected officials elsewhere; we elect vastly more officials, including judges and prosecutors, than any other country; much of our political reform efforts seek a greater participatory role for the individual citizen. Many current proposals for changing campaign finance, for example, seek to empower "small donors," or to give individual citizens vouchers they can use to fund candidates. But reason exists for concern that doing so will fuel political fragmentation and make effective governance more difficult, to the extent individual donations are likely to flow to more ideologically extreme, polarizing candidates.

Third, a different direction for reform would seek to empower the forces of centrism and to focus more on organizational power in politics than on individuals. To resist political fragmentation, reform efforts can seek to strengthen the role of political parties and party leaders, so that individual members will have less of an effective veto power. This article suggests several different specific policies in the campaign finance area that might do so by giving political parties a greater role in the campaign finance system.

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democracy, democratic theory, campaign finance, political parties, polarization, constitutional law