1 Democracy and the Legal Regulation of Political Parties1 Richard S.

Katz The Johns Hopkins University Those who are concerned with the institutionalization, stability, or improvement of democracy often look first to legal reforms. It is easy to see why this should be so. On one hand, if democracy is defined in institutional terms2, then the most obvious way to improve democracy is to improve institutions. On the other hand, if political practice results from the pursuit of individual and group objectives in circumstances structured by culture and institutions, then it appears obvious that of this triad of objectives, culture, and institutions, the last is most easily changed, at least in the short run. Attempts to improve democracy through institutional reform have been most pronounced, and pronounced for the longest time, in the realm of electoral systems - in part because these are necessarily created by legislation - but more recently political parties have also been the object of efforts to improve or assure the quality of democracy through legislative reform. Political scientists and political practitioners alike generally accept E. E. Schattschneiders (1942: 1) dictum that political parties created democracy and that modern democracy is unthinkable save in terms of the parties....The parties are not therefore merely appendages of modern government; they are in the center of it and play a determinative and creative role in it. That being so, it is understandable that parties would be an object of interest for democratic reformers. Make the parties more democratic, and you make the system more democratic. This claim, however, is more problematic than it may appear at first blush, for three inter-related reasons. First, it is not clear what a more democratic party is. While it may appear reasonably easy to identify a non-democratic or anti-democratic party (the Communist Party of the Soviet Union or the Parti Dmocratique de Guine, for example), as Macpherson (1965) has shown, even such avowedly anti-liberal-democracy parties may have an historically valid claim to the epithet democratic. Moreover, once one enters the category of parties that do not overtly reject the principle of inter-party competition, the problem of identifying those characteristics that make some parties more democratic than others has no obvious solution. Part of the reason is the difficulty of predicting the actual consequences of institutional reforms. Another part, and the second reason why it is problematic to claim that making the parties more democratic will make the system more democratic, is that the meaning of democracy itself is contested. At the very least, this point is illustrated by the radically different institutions - including the radically different party systems - that define Lijpharts (1984; 1999) models of majoritarian and consensus democracy. And once one recognizes that both of these models fit squarely within the relatively

Prepared for USAID's conference on "Change in Political Parties," Washington, D.C., 1 October 2004. This intended to serve as what Jack Walker called a smirking paper. As such, it is intended to provoke discussion. I reserve the right to abandon, or even attack, any of the views expressed here.
2

For example, see Goodwin-Gill (1994).

2 narrow confines of what Bachrach (1967) called the elitist theory of democracy or what Barber (1984) called the thin theory of democracy, the range of meanings of democracy and the range of conditions that might identify a political system as more or less democratic expand enormously. The third problem with claim that making the parties more democratic will make the system more democratic is that it is not clear to what extent it is consistent with democratic values to make parties be anything in particular. As with support of capital punishment on the grounds that killing is the ultimate wrong, there is something potentially oxymoronic - particularly within the liberal tradition - about forcing parties to be democratic.3 In this paper, my objective is not to solve these problems, because they are fundamentally insoluble, but rather to make more explicit the normative choices that are implicit in reforms of political parties. My focus will be specifically on legal regulation of political parties through party laws, but the analysis is relevant mutatis mutandis both to the legislative regulation of other aspects of the political process (e.g., to electoral systems) and to reforms of parties that are not imposed by legislation. Purposes of Party Laws What have come to be identified as party laws (in contrast to party statutes, which generally are sets of rules generated by each party for its own internal governance) have been enacted for three basic purposes. One has been to resolve the question of who is entitled to be recognized as a political party. This has several aspects. The first has to do with ballot access. Assuming that the use of a partys label is valuable to a candidate and informative for the voters, who is entitled to use of the label, and how are conflicts over the label to be resolved? If established parties are to be given privileged access to the ballot, how does a group become an established party, and what must it do to retain that status? A second aspect has to do with the allocation of public resources such as financial subventions or access to publicly owned mass media. If it is accepted that, in the words of the German Basic Law for example, Political parties shall participate in the formation of the political will of the people (Art. 21, sect. 1), then parties might be deemed to be entitled to public support in discharging this public function. But given that all sorts of other organizations also might be seen to contribute to the formation of the political will of the people, who qualifies for this public support? A third aspect concerns the role of parties within the government itself. If, as is generally the case, parliamentary committee assignments, rapporteurships, etc., are allocated among parties, who is entitled to share in these allocations? While it is not, in fact, clear that parties must or should be officially recognized and distinguished from other kinds of organizations, and while there is room for dispute as to what the rules concerning the recognition of parties should be if they are to be officially recognized, it is clear that so long as the provision and interpretation of ballots is regarded as a public function, or public moneys are being spent, or public offices are being allocated, legislation is the appropriate means for making or changing these decisions. A second purpose of party laws is to regulate the forms of activity in which political

This notwithstanding Rousseaus famous claim that men might have to be forced to be

free.

3 parties may engage. In the absence of special party laws, political parties generally have been regulated in the same way as other organizations. In this respect, party laws may either impose greater restrictions on parties, most often with regard to the raising or spending of money but not necessarily limited to such financial activities, or they may confer special privileges on parties, such as free(r) (either in financial terms or in terms of being less subject to outside editorial control) access to media. Clearly, parties need to have some form of legal personality if they are to make contracts (e.g., for advertising or office space). Equally, some forms of behavior, such as bribery or assault, do not become acceptable simply because they are done in the name or interest of a political party. Some forms of behavior such as incitement to riot or sedition may, indeed, be thought to be more likely or more damaging if committed by a party or its agents. The questions are whether parties should be regulated differently from other organizations, and how regulations of this type, whether specifically applied to parties or of more general application, can be reconciled with such basic freedoms as freedom of speech and freedom of assembly that are thought to be essential to the maintenance of democratic competition and governance. The third, and most problematic, purpose of party laws has been to regulate the forms of internal organization and political behavior that are acceptable for political parties. Examples would include requirements that party executives be elected by a party congress or directly by the partys members, that party nominations be balanced between men and women or with regard to some other characteristic, or that parties refrain from campaign messages that would be offensive to religious or other minorities (or majorities). The problem, of course, is that if democracy is about the political resolution of contentious issues - including, for example, questions of gender equality or the acceptability of religious or cultural practices or the reaction of ones country to foreign events that are loaded in religious or ethnic terms (such as the conflict in the Middle East) - then far from contributing to popular democratic decision, regulations of this type may be seen as imposing one particular solution and muzzling its opponents. Moreover, as will be suggested below, it is far from clear that democracy at the level of the political system is furthered by the imposition of democratic processes within individual parties. What is Democracy? Before one can assess the democratic character of a political system or of political parties, or assess the democratic appropriateness of actions to reform the parties, one must first understand the nature of democracy. While there is a tendency to define democracy in the same way Potter Stewart defined pornography (I know it when I see it), this is fundamentally inadequate. Instead, five inter-related big questions must be addressed. The first big question concerns the scope of democracy. The I know it when I see it definition generally equates democracy with the choice of government through competitive elections in the sense that it sees competitive elections as both the necessary and sufficient condition for democracy. In Joseph Schumpeters words (1950: 269), for example, democracy is that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the peoples vote. A [political] party is a group whose members propose to act in concert in the competitive struggle for political power. (283) In this view, a democracy is no more nor less than a political system in which

4 political leaders are chosen in reasonably free competition among political parties. In contrast to this, there is a tradition (that is fundamentally truer to the original Greek idea of democracy) that identifies politics, and thus democracy as a form of politics, with (in Abbie Hoffmans words) the way you live your life. In this view, one would not talk about a democratic government, but rather about a democratic society, because to restrict attention to the method through which political decision makers are chosen is totally to strip democracy of its core meaning. Indeed, at the extremes, democratic theorists of this persuasion often are hostile, or at best deeply skeptical, about political parties and elections, both of which they identify with the elitist, thin, version of democracy, as no more than popular choice between competing elites. In more moderate form, with political parties accepted as institutions through which the values of societal democracy might be advanced, even if never completely achieved, however, the contrast between these two views has profound implications for the proper nature of political parties. The second big question is whether an election is properly understood as the choice of a government or as a choice of representatives. The key point, reflected in the grammar of the preceding sentence, is that a government is singular, whereas there may be many representatives. On one hand, this means that some standards of, for example, representativity that are considered appropriate for governments might more appropriately be applied to the parliament as a whole rather than to the individual parties that make it up. On the other hand, because choice of a government implies choice against some alternative, some forms of inclusiveness that might be considered appropriate for parliaments would be inappropriate for governments, even though governments are plural in the sense of including more than one person even if there is a single chief executive. Jumping ahead to clarify these points by way of examples, one might achieve ethnic balance within a parliament through the proportional representation of parties each of which is ethnically pure, but while one might regard proportional balance among the political views held by the voters to be appropriate at the level of the parliament as a whole, for all views to be represented in the government would make a nonsense of the idea of elections as choices between alternative governments.4 Third, are elections contests among parties or among candidates, or posed a bit less starkly and more realistically, are voters properly understood to be choosing among parties, each of which has particular individuals as its standard bearers, or rather are they choosing among individual candidates, each (or most) of whom are associated with political parties? Parliamentary democracy as actually practiced in modern states, and even more proportional representation electoral systems, of course, are predicated not only on the idea that parties are cohesive units but also on the idea that it is those cohesive units for which electors vote and which therefore have a democratic mandate from the voters. At the same time, many constitutions emphasize the personal responsibility of individual MPs either to their own

As this indicates, I would suggest that the election of a parliament that will determine which parties enter into government is fundamentally different in kind from the election of a parliament from which it is preordained that a grand coalition government must emerge, even if that government formally will be responsible to the parliament. This is not to say that such prenegotiated coalition governments are not desirable, or even necessary, in some circumstances, only that they, and the elections that produce them, are different.

5 constituents or to their own consciences. For example, the German constitution says that members of the Bundestag shall be representatives of the whole people, not bound by orders and instructions, and shall be subject only to their conscience5 -- even as the electoral system means that voters are choosing parties rather than individual MPs while the Constitution of the 5th French Republic says All binding instructions from outside bodies...shall be null and void.6 (at least here in the context of a candidate oriented electoral system). Fourth, is the objective of democracy to allow the citizens to protect themselves against their rulers, by giving them the opportunity reactively to punish those of whose policies, or results, they disapprove (what I have called liberal democracy or in its extreme form what Michael Pinto-Duschinsky has called removal van democracy)7, or is it to allow the citizens to rule themselves, by actively deciding the policies to be pursued (what I have elsewhere called popular sovereignty). Moreover, in addition to these two potentially opposed objectives, what attention is to be devoted to other, also potentially inconsistent democratic values or objectives: the personal development of citizens as autonomous human beings; the fostering of a true (as opposed to a merely juridical) political community; and political equality.8 The fifth big question concerns the primary role of citizens in the context of an election campaign. Are they primarily to be judges among the contestants or are they to be active participants and partisans? Implications for Parties In broad terms, in the case of each of these five questions, the first answer suggests a more elite and party oriented sense of democracy, where the second suggests a more egalitarian and participatory sense of democracy. Thus, although each question can be taken independently, all
5

Die Abgeordneten des Deutschen Bundestages werden in allgemeiner, unmittelbarer, freier, gleicher und geheimer Wahl gewhlt. Sie sind Vertreter des ganzen Volkes, an Auftrge und Weisungen nicht gebunden und nur ihrem Gewissen unterworfen.
6

Tout mandat impratif est nul.

In thinking about the version of democratic theory that I have identified as liberal democracy, it is important to remember the second, as well as the first, word of that phrase. In particular, while we might argue about the degree to which liberal political rights or a free market economy are prerequisites for the inauguration or sustainability of democracy, they clearly are not sufficient consitions, and hence a liberal free market economy is not a synonym for liberal democracy, let along democracy tout court. The point of adding democracy to the phrase, even for such unreconstructed liberals as Jeremy Bentham, would be a recognition that ordinary people need some protection against the natural rapaciousness of their leaders including judges and central bankers - and that they need such protection all the more given that natural rapaciousness is the fundamental assumption of liberalisam and especially of capitalism. I Democracy and Elections (Katz 1997), I took equality more or less as a given, and only developed the other four values.
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6 five are closely connected with regard to their implications for parties in general, and for both the appropriateness and the content of party laws in particular. Beginning with what was identified above as the third function of party laws, the regulation of the internal organization of parties, one point of contrast concerns what Austin Ranney, writing about the responsible parties debate with regard to American parties described as the little civil war about intraparty democracy (1962, 156). Does democracy require (or indeed is democracy even furthered) by requiring that parties be democratic with regard to their internal (policy formulation, candidate selection, etc.) procedures? Although it is appealing to assume that the answer to this question must be yes, and although there have been moves in this direction within the regulatory systems of many democracies (for example, tying subsidies to a democratic candidate selection process), the answer in fact is far from clear. If democracy implies active citizen participation and parties provide one of the venues for that participation, then internal democracy is important. Similarly, if democratic elections are about choices of representatives and among candidates, internal democracy may allow groups of citizens to determine the individuals who will represent them and the policy preferences that they will represent. On the other hand, there is a significant body of democratic theory that takes the opposite position -- arguing, in Giovanni Sartoris words, that democracy on a large scale is not the sum of many little democracies (1965, 124). Anthony Downs, for example, argues against an inclusive definition of party, or internal party democracy, because whatever policies emerge are likely to form a hodgepodge of compromises (1957, 25). In this case, even if the representational function of elections might be enhanced, the clarity of choice offered to the voters would be sacrificed. And indeed in the Downsian model, the aim of democracy is furthered by competition between parties that are motivated solely by the private interest of their leaders, who generate popular policies simply as a means of winning votes. It is the personal disinterest in policy of the party leaders that leads them to converge toward the first preference of the median voter - which is the policy package that has the best claim to the title will of the people. But since individual party members would not share in the personal rewards of office, the presumption is that they are motivated by policy. Thus, even if internal democracy did not produce the hodgepodge of compromise that Downs feared, it would produce proposals near to the median preference of each partys members, and therefore not at the median of the electorate as a whole. In other words, democracy within the parties would prevent the democratic outcome that is supposed to be furthered by competition among the parties. While the Downsian ideal of convergence requires a two-party system,9 the requirement in multiparty systems is that the leaders of the parties be willing and able to compromise with one another to form coalitions. Particularly because internal party democracy is likely to empower activists, who tend to be stronger and often more extreme in their preferences, rather than either base party members or party supporters in general, it is likely to make compromise less rather than more easy and indeed in Lijpharts original work on what he called in English consociational democracy (Lijphart, 1968) (kartel democratie in Dutch), elite autonomy from

It should be noted that the Downsian argument suggests that the outcome (centrism and moderation) that Lijphart claims as the special virtue of consensus democracy might best be produced by the institutions Lijphart associates with majoritarian democracy.

7 their followers was advanced as one of the secrets to maintaining liberal democracy in a deeply divided society. From this perspective as well, the claim that internal party democracy will further democracy at the system level is at least suspect. The idea that certain forms of campaign practice must be banned because they risk offending groups or inflaming passions, or that certain ideologies or individuals (for example, those tainted by involvement in a prior regime) must be banned as being anti-democratic similarly seem appealing at first glance but is problematic on closer inspection. In Rousseaus democratic theory, for example, the first question that should always be proposed, and never on any account omitted was whether the present form of government should be continued (1947, 91) in other words, democracy requires that the continuation of democracy always be regarded as an open question. In more practical terms, one consequence of barring the expression of anti-democratic views through party competition may be to force the expression of those views by less legitimate and less desirable means. Simply, a balance must be struck between containing those who would use the protections and privileges given to parties in order to destroy the system that allows those protections and privileges not only to themselves but to their opponents, and recognition that the enforcement of democracy against the wishes of the people is highly suspect in democratic terms, not to mention that it is likely to be a futile effort. Enforcement of good taste, civility, or truthfulness in campaign activity all necessarily involve not just the protection but also the constriction of democracy. While incitement to genocide, for example, clearly cannot be protected, it also must be recognized that the definitions of good taste, civility, or truth often are politically contentious, so that to impose definitions is to bias the discussion. Again, a balance is required rather than simply an attempt to impose civility through legislation. Requirements of ethnic or gender diversity pose a serious dilemma for democratic theory. Even if these were purely cosmetic, a phrase that I mean to be taken as even weaker than purely symbolic, they would still restrict the choices of party members or voters to be in accord with the preferences of those imposing the requirements. But when they have more substantial justification (to embody the equality of all citizens, or even more to assure that the interests of particular groups are represented regardless of the wishes of those choosing candidates or party officials), the problem is more severe for precisely those reasons. In basing diversity requirements on the asserted political relevance of certain demographic characteristics, one is truncating the sphere in which democracy is allowed to work. The possibly perverse results of such regulations can be seen if one imagines gender quotas having been applied in Iceland in 1995, which presumably would have required the Samtk um kvennalista to have both men and women among its candidates and party officials notwithstanding that its purpose was to be a party for women.10 The point here is that whatever the justification for insisting on demographic balance or diversity of representation in the parliament as a whole, to impose an analogous requirement on the individual parties that make it up is of a different order. Such requirements fundamentally alter the meaning of representation by parties in ways that may not further democratic government. Without taking sides in that debate, it should be noted, for example, that

In addition, there is the potential problem that assuring representation for particular groups will contribute to, rather than ameliorate, the balkanization of politics and society.

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8 one criticism of the Lebanese requirement that party lists in each district conform to a legally prescribed ethnic balance was that it drove the real leaders of all ethnic groups out of electoral politics. This conflict between the freedom of speech and other democratic values like community also arises with regard to regulation of party finance. First, there is a conflict between the ideals of equality and majority rule (which might suggest, among other things, strong limits on the size of allowable contributions from individual citizens and perhaps a total ban on political spending by anyone/anything except individuals), on the one hand, and the ideals of freedom of speech and the liberal pluralist notion that various groups, endowed with different mixes of resources (numbers for some groups; wealth for others; access to or ownership of strategic communications media for still others) should be allowed to protect and advance their interests as best they can. Second, there is a conflict between the ideal of politics as a labor intensive activity in which large numbers of citizens take part on a regular basis (again suggesting strict limits on party finance) and the reality that electoral politics has become a capital and expertise intensive activity, in which citizens often can take part more effectively by pooling their financial resources so as to hire experts.11 Third, there is a conflict between the idea that the effects of regulations concerning party fund raising, and especially concerning the provision of public resources or privileges, ought to be in rough proportion to current popular support, and recognition that those who want to challenge the status quo often depend on a very few large donors or access to public resources in order to build public support in the first place. In other words, apparent equity based on demonstrated support can be extremely conservative in its effect. Fourth, there is the conflict between the fear that enforcement powers will be used by those in power to repress, harass, or hamper their opponents for partisan reasons and the recognition that regulations without a timely and effective enforcement mechanism not only are unlikely to be effective but also are likely to bring the entire notice of fairness through regulation into disrepute. Fifth, there is a conflict between the idea that politics should be a public and collective activity so that citizens should be willing not only to acknowledge but also to defend their political actions to one another (including in the case of Barbers (1984) Strong Democracy, for example, even their votes which might not be secret) and a desire for individual privacy not only with regard to votes but to financial contributions as well as protection against undue influence or reprisals. Laws setting conditions under which political parties will be recognized, and given privileges like assured ballot access, public subsidies, or representation in parliamentary committees all can be justified as necessary to make elections manageable. An excessive number of choices is likely to so fragment the vote that the result will not be meaningful; similarly, excessive fragmentation in parliament, which is discouraged by requiring that parliamentary groups maintain a reasonable size in order to receive committee positions or by prohibiting MPs elected under one partys banner from defecting while retaining their seats or committee positions, is likely to make the maintenance of stable majorities impossible. If access to public

One implication of this argument, were it to be applied to the system of campaign finance regulation in the United States, would be to disallow all limits on spending by PACs while potentially retaining limits on individual contributions whether to PACs, to parties, or directly to candidates.

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9 resources is not limited to serious contenders, there is a risk of candidacies motivated by desire for the resources rather than desire to influence policy.12 An official party registry facilitates timely and definitive resolution of conflicts concerning the use of a party name and the right of individuals to identify themselves as candidates of the party. At the same time, however, one effect of such regulations is almost inevitably to stack the deck in favor of the existing parties: requiring new would-be parties to undertake extensive organizing efforts at a time when politics is likely to be less salient; freeing existing parties from the need to expend resources to collect petition signatures or otherwise to demonstrate support in advance of the election in order to secure a place on the ballot; giving established parties resources and a position in parliament that are denied to those who leave the parties for which they were elected, independents, or supporters of parties that only win a few seats; giving them access to public resources in greater amounts and on more favorable terms.13 Conclusion With regard to the democratic propriety of party laws, this paper has several relatively simple conclusions, all of which apply to electoral systems (Katz, 1997) as well as to party laws. The first is that democracy is a complex concept. Although there is virtually universal consensus that democracy is a good thing, there is no such consensus regarding the definition of democracy. One reason is that democracy is valued as a means to the achievement of a number of ends, all of which are at first glance desirable, but which on closer examination turn out to be incompatible. This means that compromises must be struck, and as with all compromises there can be disputes about the relative weight to be accorded to values, even if there is universal agreement that all of the values being compromised are desirable. The second is that the actual results of reforms often are extremely difficult to anticipate. The history of reform efforts is replete with examples of the law of unintended consequences. As has been found repeatedly with attempts to limit the influence of political money, while it may be possible legislatively to influence the channels through which money flows, those who want to influence politics almost always can find a new method for achieving the same end. Some results

While I phrase this as desire to influence policy rather than hope of being elected to allow for blackmail parties, or parties that simply want to influence the public debate. On the other hand, the British connoisseurs wine party - in reality a wine merchant using the free distribution of candidates election addresses to advertise his business, illustrates the possible results of excessive liberality. In the British case, with strong party loyalties, such actions may be regarded as quaint curiosities. In emereging democracies, where voters may have more trouble distinguishing between political and commercial candidacies, the potential for mischief might be more serious. The United States offers an instructive example, with the two major parties being treated equally with regard to presidential campaign funding, but minor parties receiving proportionately less and new parties not only receiving less but also receiving it only after the election - when it is for all purposes except paying down a campaign debt too late.
13

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10 simply may not be achievable by legal regulation. The third is that few, if any, institutional reforms are politically neutral. Some interests or parties are advantaged and others disadvantaged -- at least relative to other reforms that might equally plausibly have been proposed. Since there can be no unproblematic standard by which fairness can be assessed, this means that to propose reforms, even in the name of fairness or neutrality, is likely to be perceived by some participants as taking sides in the substance of political competition. Certainly there are some practices that are unacceptable by any reasonable standard of democratic propriety, and those should be opposed. Beyond that, however, those who advocate not just specific content for party laws, but even the principle that there should be party laws, would be well advised to recognize that such a proposal is not above politics, but is of politics.

11 References Bachrach, Peter. 1967. The Theory of Democratic Elitism (Boston: Little, Brown and Company). Barber, Benjamin. 1984. Strong Democracy: Participatpry Politics for a New Age (Berkeley: University of California Press). Downs, Anthony. 1957. An Economic Theory of Democracy (New York: Harper and Row). Goodwin-Gill, Guy. 1994. Free and Fair Elections: International Law and Practice (Geneva: Inter-Parliamentary Union). Katz, Richard S. 1997. Democracy and Elections (New York: Oxford University Press). Lijphart, Arend. 1968. The Politics of Accommodation: Pluralism and Democracy in the Netherlands (Berkeley: University of California Press). Lijphart, Arend. 1984. Democracies: Patterns of Majoritarian and Consensus Democracy in Twenty-One Countries (New Haven: Yale University Press). Lijphart, Arend. 1999. Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries (New Haven: Yale University Press). Macpherson, C. B. 1965. The Real World of Democracy (Oxford: Oxford University Press). Ranney, Austin. 1962. The Doctrine of Responsible Party Government (Urbana: University of Illinois Press). Rousseau, Jean Jacques. 1947. The Social Contract (New York: Hafner). Sartori, Giovanni. 1965. Democratic Theory (New York: Praeger). Schattschneider, E. E. 1942. Party Government (New York: Holt, Rinehart and Winston). Schumpeter, Joseph. 1950. Capitalism, Socialism and Democracy (New York: Harper and Row).