Friday, September 27, 2013

The Pro-Party Legislation that's All the Rage

In 2006, Senator Joe Lieberman, who had represented Connecticut's Democrats in the Senate since 1989, lost his re-nomination bid. Activists in his party had grown tired of his alliances with the Bush administration, especially on issues related to the Iraq War, and they decided they no longer wanted him as their standard-bearer. Famously, Lieberman ran in the general election under a new party label ("Connecticut for Lieberman") and retained his Senate seat. This feat is currently only possible in three states: Iowa, New York, and, of course, Connecticut.

As Michael Kang points out in his article "Sore Loser Laws and Democratic Contestation" in the Georgetown Law Review, 47 states have some sort of "sore loser" law in place. In such states, those who lose a primary may not participate in the general election that year. A group of political scientists and legal scholars (including Kang and me) spent some time discussing these laws at a panel on Thursday entitled "Do Partisan Primaries Serve the Public Interest?", hosted by the Bipartisan Policy Center at Ohio State University. As Kang explained, these types of laws are quite clearly and unapologetically pro-party. In an era when so many laws are design to constrain parties and limit their influence in elections, sore loser laws stand out as efforts to help prop up the party system. And whereas things like high ballot signature thresholds can make it difficult for minor parties or unaffiliated candidates to access the ballot, sore loser laws are an outright ban on candidates the parties don't like. And they really hurt the best of those candidates. As Kang argues in his article:
Sore loser laws target a pool of candidates -- losing primary candidates -- that is likely to be stronger than the usual array of noncontenders run by minor parties.
These are people like Lieberman, who have a strong support among the general electorate but are not loved by any particular party. Interestingly, as Kang shows, these laws did not all crop up at once. They've been adopted somewhat haphazardly over the past century, with half the states adopting them since 1976.

Do such laws have an effect on the political behavior of the officeholders elected through them? In theory, they prevent the election of more moderate candidates. Politicians in sore loser states know that they need to keep their party happy or they can't stay in office. Does this make them more partisan? Kang, working with Barry Burden and Bradley Jones, examined the ideological positions of congressional candidates across states with sore loser laws and those without them [PDF]. They found that congressional candidates are much more ideologically distant from each other in sore loser states. As they conclude, "Sore loser laws explain about 10 percent of the ideological distance between the major parties."

Now, there's obviously an endogeneity issue built in here -- the states that don't have sore loser laws may also be the ones that place greater value on officeholder moderation to begin with. But this strikes me as an area of the law that gets insufficient attention. Reformers are constantly looking for ways to mitigate polarization. Perhaps, as some suggested at this conference, there should be a "right to run" movement that seeks to abolish these laws. On the other hand, maybe it's just plain fair to prevent those who already ran and lost from getting another try. Either way, this seems like a good area for discussion.

7 comments:

  1. I'm interested in California's new open primaries, in which the top two candidates, no matter the party, compete in the general... it seems to be more inclusive, especially in districts that are heavily tilted toward one party or another. Because all voters get to participate, not just party activists.

    What do you think Seth?

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    1. Even before California passed Prop. 14 in June 2010, independent voters could vote in Democratic and Republican partisan primaries for Congress and partisan state office (there are no partisan local elections). Such independent voters didn't even need to ask. When an independent entered the polling place, he or she was told that a major party primary ballot was available, and the independent didn't need to join that party on the spot. There was always confusion about this in California because the Republican presidential primary (but not other office) was closed to independents. Prop. 14 had no effect on presidential primaries so it is still closed.

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  2. I've actually written a bunch about that. Check out this conference paper and these blog posts for some examples. Thanks!

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    1. The short version is that I'm not particularly optimistic about the top-two system's ability to change partisanship in California. Party elites are very good and getting around reforms like this and have already adapted to this one through a system of endorsements. What little evidence we have so far suggests that the legislators elected under the top two are no more moderate than the earlier ones. But it's still early -- a few more election cycles and things might look different.

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  3. Shouldn't Alaska be included in the grouping of non-sore loser states? Murkowski was reelected in 2010 through a write-in campaign, after losing the Republican primary to a Tea Party candidate.

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    1. Good point, WB. Kang categorizes Alaska as having a prohibition against a candidate who loses a primary running in another primary or as an independent for the same office. It may be that write-ins are a way around that rule.

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  4. It's still possible for a "sore loser" to get on the Vermont general election ballot. But the candidate has to think ahead, and complete ballot access for the general election before the primary is held.

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