United States Supreme Court
McCutcheon v. Federal Election Commission
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AbstractProfessors Joseph Fishkin’s and Heather Gerken’s essay for this symposium, The Two Trends That Matter for Party Politics, along with the larger project of which it is a part, marks a notable turn (or return) in the law-of-democracy field. Unlike much recent scholarship, Fishkin’s and Gerken’s work does not offer a comprehensive theory of corruption or equality, but instead analyzes the relationship between campaign finance law and the actual functioning of political parties in our democracy. In brief, Fishkin and Gerken tell us that our contemporary political parties are at once highly polarized and oddly weak. They claim this is so because of a shift in the center of gravity of the parties, away from the formal party structure and toward “shadow parties.” These shadow parties, controlled by big donors, undermine the influence of “the party faithful,” i.e., everyday voters who provide the energy and backbone of the political parties through volunteering, attending caucuses and conventions, and making small donations. On this view, the potential of McCutcheon v. FEC to reinvigorate parties may be overstated. The decision, Fishkin and Gerken warn, is more likely to exacerbate the trend toward shadow parties, rather than to encourage formal parties populated by party activists.