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Professor Tabatha Abu El-Haj’s Pathbreaking First Amendment Scholarship Appears in Columbia Law Review

Professor Tabatha Abu El-Haj

June 18, 2018

Supreme Court jurisprudence concerning political parties is based on a theory of democratic accountability that has “run its course” and produced a system that is ripe for reform, Professor Tabatha Abu El-Haj argues in a new article published in Columbia Law Review.

In “Networking the Party: First Amendment Rights and the Pursuit of Responsive Party Government,” Abu El-Haj calls for applying a theory of the First Amendment that promotes broad participation in the political process.  

Supreme Court rulings have largely helped party elites control their political brands at the expense of competitive elections, Abu El-Haj contends.

“Merely consuming the political brands manufactured by party elites has not been enough to produce accountability,” Abu El-Haj writes. “At the national level, our leaders are millionaires, ‘only weakly accountable’ to the people, who leverage their enormous policy discretion largely to the advantage of others like themselves.”

Yet, the article says, the isolation that blindsided Democratic and Republican leaders in the 2016 presidential election has “heightened awareness of the costs to operating within a super-elite social network” as well opportunities to reshape partisan networks.

Citing sociological and political scientific research on public engagement in the political process, Abu El-Haj underscores the power of membership organizations and social networks to inform and mobilize voters who can hold elected leaders accountable and lays out an “associational-party framework” for addressing the dysfunction that has pervaded U.S. politics.

“The central premise underlying an associational-party path is that curtailing the political influence of donors and other unrepresentative policy demanders requires creating a counterpoint to that influence by empowering and mobilizing millions of ordinary Americans through civic and political organizations. Any deregulation of party financing must, therefore, be narrowly tailored to the goal of encouraging peer-to-peer party-building and voter-mobilization strategies that significantly rely on face-to-face interactions,” Abu El-Haj argues.

Existing doctrine has focused on protecting political parties–as speakers–from burdens placed on their brand messaging, the article contends.

Abu El-Haj says, however, that the associational-party path to responsive governance fits comfortably within First Amendment tradition, and she argues for applying the Anderson-Burdick framework used by the courts to review election regulations to cases implicating the associational rights of major political parties.

“The primary concern is burdens placed on the party’s ability to foster deep and wide social ties to a representative electorate,” she says. “Burdens on the clarity of a party’s message, by comparison, are much less important.”

Contending that her proposal is “not entirely a professorial pipe dream,” Abu El-Haj notes that Supreme Court political party jurisprudence is “already structured around the idea that First Amendment rights must be allocated to facilitate democratic accountability.”