Tarunabh Khaitan (University of Oxford – Faculty of Law; University of Melbourne – Law School; University of California, Berkeley – Berkeley Center on Comparative Equality & Anti-Discrimination Law) has posted Political Parties in Constitutional Theory on SSRN. Here is the abstract:
Democratic constitutions, especially in the Anglophone world, have largely been silent on political parties. In this paper, I will argue that this silence is a mistake. I will first provide a functional account of political parties. I argue that parties are difficult to regulate constitutionally because of their janus-faced public-private character. The key function they perform, when functioning as they ought to function, is to facilitate a mutually responsive relationship between public policy and popular opinion by acting as an intermediary between a state and its people. The second part of the paper will argue that democratic constitutions should seek to achieve three distinct, and sometimes conflicting, objectives in relation to political parties:
i. Support political parties to function as efficient intermediaries between the state and its people (the ‘party support principle’);
ii. Ensure a separation of the ruling party and the state (the ‘party-state separation principle’); and
iii. Discourage political parties from operating as factions (the ‘anti-faction principle’).
Finally, I will further map a range of design possibilities that might aid constitutions in pursuing these objectives, without destroying the dual public-private character of parties. In particular, I will highlight the (sometimes counter-intuitive) implications of the three principles for separation of powers, the rights to fair political participation and some fundamental freedoms, opposition rights, electoral systems, and party funding.