The legal regulation of political parties: Contesting or promoting legitimacy?

Introduction

The recent waves of protests and demonstrations sweeping over Southern Europe have brought a renewed interest in the notion of political legitimacy and its relationship with some of the main vehicles of political change: political parties. In the wake of the recent events taking place in Gezi Park and Taksim Square in Istanbul, the mass street protests against the recently sworn-in government of neighbouring Bulgaria, or the latest wave of unrest in Brazil, all of which show people’s dissatisfaction with the way they are being governed, one might ask the pertinent question ‘what makes political power legitimate?’ In this special issue we focus on the regulation of political parties and its effects, in a first attempt to evaluate the impact of party regulation on political legitimacy. Do rules and regulations legitimise the activity of institutions such as political parties, or do they serve the opposite purpose of eroding the public’s belief in their competency and integrity? Furthermore, when political regulation undergoes change, does this change serve to strengthen or weaken public support for the political system? How does change in regulation affect the current state of political competition? Do rules offer political actors additional freedoms, or do they restrict access to the political arena to a select few? These and similar questions, which interest not only political scientists and academics, but also government and non-government officials dealing with political pressure or political reform, guide the discussions in this special issue.

The idea of political legitimacy, albeit surrounded by a lot of controversy concerning its precise connotation and interpretation, has a long tradition within the field of political philosophy, as well as within political science more broadly. The pioneering works of Weber at the turn of the 20th century define a regime as legitimate when it is endorsed by the people participating in it. The basis of every system of authority, and correspondingly of every kind of willingness to obey, he contends, is a belief by virtue of which persons exercising authority are lent prestige (Weber, 1964: 382). Turning to the analysis of the modern state, and the need to find a more versatile definition of political legitimacy for this purpose, Beetham (1991a, 1991b) offers an alternative, multi-dimensional account of political legitimacy, one that is ‘always legitimacy-in-context, rather than absolutely, ideally or abstractly’ (1991a: 14). Beetham sees political legitimacy as composed of three factors: conformity to rules, justifiability of the rules in terms of shared beliefs, and legitimation through expressed consent (1991a: 20).

A focus on the regulation of political parties, on the other hand, is a more recent phenomenon in political science and, in particular, in the field of party politics. While parties, as such, have occupied the pages of a number of influential political texts for more than a century, the study of party regulation has only gained scholars’ attention in recent decades. Building on the original concepts developed in Maurice Duverger’s Political Parties (1954), Giovanni Sartori’s Parties and Party Systems (1976) or EE Schattschneider’s Party Government (1942), scholarship on the subject of party regulation seeks to answer more specific empirical, as well as philosophical, questions, on the role and purpose of the regulation of political parties. The puzzle, initially posed in Katz and Mair’s (1995) article on changing models of party organisation, about the possible cartelisation of parties in power, has led to a rising interest in the relationship between parties and the state (e.g. Biezen, 2004; Biezen and Kopecky, 2007; Casal-Bértoa et al., forthcoming), as well as in the effect of the growing regulation to which political parties have been subjected in recent years (e.g. Biezen and Rashkova, 2012; Gauja, 2010; Hopkin, 2004; Karvonen, 2007; Scarrow, 2006; Whiteley, 2011).

Building on this literature, and with a particular conceptual emphasis on legitimacy, this special issue aims to delve further into the party regulation of specific regions and countries in an attempt to seek answers to questions about the potential and actual effects of legal rules and their underlying normative beliefs. The collection draws on examples from virtually all continents across the globe, including Europe, Africa, North and South America, and Australasia. The inclusion of both established and new democracies in this special issue further allows us to draw attention to the salience of the link between legitimacy and regulation of political parties in developing democracies in particular, as in those parts of the world legitimacy crises more often than not have a strong direct impact on day-to-day politics and have the greatest potential to bring about important changes. Most of the articles included in this volume were first presented at the Conference on Political Legitimacy and the Paradox of Regulation workshop on ‘Contested Legitimacy and the Legal Regulation of Political Parties’ held in Leiden, the Netherlands, in January 2013. They all attempt to bridge the gap between the concept of political legitimacy and the political reality of a particular political institution – the political party. For that purpose, the collection of works focuses on one understudied feature of the political party, that of its regulation. Examining various aspects of party regulation, and its effect on party organisations, party system development and political competition, as well as the level of public trust, the authors seek to ultimately evaluate the guiding research question of the workshop: whether and to what extent the regulation of political parties promotes democratic legitimacy.

The concept of political legitimacy

The subject of political legitimacy is broad and widely contested, yet, a growing feeling of discontent with the present political system, or more so with the present form of governance, is noticeable across many democracies. It is noticeable not only from popular demonstrations against incumbent governments but also from the abundant academic discussion of the various aspects of legitimacy – from examining the role of political communication in legitimating governance in the European Union (EU; Meyer, 1999), through investigations into the question whether compulsory voting may contribute to the act of voting as a public duty (Lever, 2010), to the rising interest in the idea of a democratic audit. The idea of the democratic audit–that governments should be audited for the quality of democracy they provide and the level of legitimacy they enjoy–has gained strength. Created first to evaluate the level of democracy in the UK, ¹ it has spread to other countries throughout the world via the International Institute for Democracy and Electoral Assistance (IDEA). ²

In studying legitimacy from any perspective, one ought to examine both the political system and the opportunities for competition, change or preservation of the status quo it provides, as well as devote attention to its endorsers – the people – and how they evaluate their government’s level of legitimacy. Beetham (1999) identifies popular control and political equality as the two key democratic principles whose presence provides the ultimate test for how far a country’s political life can be regarded as democratic. In present-day democracies regulation is often used as a legal instrument aimed at guaranteeing rights and freedoms in political and social life. Yet, a standing paradox remains that those who create the laws governing political parties are often those who have to abide by them – something that may breach the ideal of political equality among parties, especially for those not currently in power. Given the pressing need for evaluating the legitimacy of political governments, and the increasing adoption of party regulation as a means to secure it, we use Beetham’s framework for analysing the relationship between party regulation and political legitimacy.

Beetham (1991a) defines legitimacy through the eyes of lawyers, philosophers and social scientists. He states that for the legal expert, what makes it possible to call power legitimate and rightful depends on how it was acquired and how it is exercised. To be legitimate, power has to be acquired and exercised according to justifiable rules and with ‘evidence of consent’ (1991a: 4). Then, the first step to achieving legitimacy according to Beetham is when power is obtained and enjoyed according to the established law, or in other words when it is legally valid. Legality of power, however, is not sufficient for the ‘moral and political philosopher’. For the philosopher, Beetham argues, the legitimacy of power stems from its moral justifiability and rightfulness, ‘where rules governing it [power] are justifiable according to rationally defensible normative principles’ (1991a: 5). Lastly, for the social scientists, whose concern is ‘rather with identifying the empirical consequences that legitimacy has for the character of power relations’ and whose purpose is ‘primarily an explanatory one’, ‘a given power relationship is not legitimate because people believe in its legitimacy but because it can be justified in terms of their beliefs’ (1991a: 5–11). It is then much more related to a specific context, rather than an abstract philosophical idea, and it is this that allows social scientists to evaluate and assess the degree of legitimacy that different political systems have achieved.

Distinguishing himself from earlier political philosophers, Beetham’s work on political legitimacy advances a multi-dimensional view of the criteria for legitimacy, which is easily transferable to the study of different political phenomena. According to his classification, power is legitimate to the extent that it conforms to the established rules, that these rules can be justified, and that there is evidence of consent or popular support for the particular power relation (1991a: 16). We have adopted this classification as a guide for the study of the degree of legitimacy of regulation of political parties, which the articles included in this volume examine.

Transferring the three-dimensional framework of what makes power legitimate – its legal validity, its justifiability and its legitimation through the expressed consent of its subordinates – to the subject of party regulation, we have identified three distinct puzzles to further explore. The first puzzle is that of the legality of political parties. Just as political power is seen as legitimate when it is established and exercised according to the law, which makes it legally valid, so are political parties. The establishment and activity of the latter is often enabled and governed by the rule of law, which in a majority of the post-war European democracies involves the development of an extensive body of law to regulate political parties, most notably specific party laws, party finance laws and provisions in the national constitution (Janda, 2005). Party laws include regulation of aspects of party organisation varying from their definition, composition, structure, programme and activities to specific rules about party finance and external control (Casal-Bértoa et al., forthcoming). Thus, political parties find legal guidance concerning their activities within the body of party law. One conundrum is that the rules about political parties are not exogenous to parties; political elites, who arguably represent the interests of the very same parties, are responsible for their creation and implementation. This creates the potential for the cartelisation of parties and party systems (Katz and Mair, 1995) with the purpose of excluding outsiders from the system, preserving power within the hands of the elected incumbents and limiting the possibilities for change in the existing distribution of resources. As a result, key questions involve the effects of party regulation on the ability of political entrepreneurs to form new parties and enter the political arena, as well as the overall stability of the party system and the fate of existing parties. Svåsand’s article addresses this topic, studying the development of party regulation in the context of Malawi. From a different perspective, focusing on the role of the judiciary as lawmakers, Gauja argues that along with written laws, courts are also important political actors in legitimising the activities of the parties and the contours of the party system.

A second potential puzzle arises from the justifiability criteria for political legitimacy as advanced by Beetham. According to Beetham’s framework, legal validity is insufficient to secure legitimacy on its own and ‘power is legitimate to the extent that the rules of power can be justified in terms of beliefs shared by both dominant and subordinate’ (1991a: 17). In the context of political parties this condition can be interpreted to refer to the role of political parties or what justifies the existence of parties. Party laws are the main legal source that underpins the formal and legally accepted role of political parties. One could argue, however, that as a consequence of the growing regulation of political parties, both in country constitutions and in party and electoral laws, parties are departing from their original state of private representative institutions and are being increasingly transformed into semi-state agencies, or as Biezen (2004) refers to them, into ‘public utilities’. The close relationship of political parties and the state, and the ultimate debate about whether and how the role of the party can still be justified, is exacerbated by the strong financial dependency of parties on the state after the introduction of public funding. Bartolini and Mair (2001) warn that the close relationship between the parties and the state undermines their traditional character as private associations and has the potential to weaken their internal organisational autonomy; consequences that raise both normative and empirical questions about the role of political parties in modern democracies. Questions that fall within this area are those that explore how countries differ with regard to the degree of party constitutionalisation (Biezen, 2012) or in their development of public laws regulating political parties, and what such codification means for the role of political parties in modern democracy. The two contributions in this special issue examining party regulation in Latin America stand out in this respect. Molenaar traces the development of legal rules for political parties in the region, exploring the extent to which attempting to legitimate political power solely with the rules originally provided to uphold it can erode the political legitimacy of political parties. Scherlis, on the other hand, offers a deeper view of specific regulations – ballot access rules – alluding to a trend for the adoption of such rules in relation to the legitimacy status of political parties. In addition, for common law democracies, Gauja analyses the tensions that may arise between parties and judiciary as lawmakers when the courts need to find a balance between laws that legitimately restrict political competition and those that unfairly create political cartels.

Finally, the puzzle of legitimation relates to the third criterion of consent that Beetham offers as necessary for power to be considered legitimate. Power can only be deemed legitimate if it involves ‘the demonstrable expression of consent on the part of the subordinate… through actions which provide evidence of consent’ (1991a: 18). Beetham claims that the type of actions that count as consent are culturally determined and cannot be defined a priori. Yet, he notes that actions, besides legitimating power, can have a delegitimating effect if they show non-cooperation, passive resistance or open disobedience to current power holders. This is perhaps the legitimacy condition that is easiest to relate to everyday modern politics, as popular protests against incumbent governments abound across many regions of the world. These are an active representation of what Beetham called ‘opposite or negative of legitimacy’, a process that he referred to as delegitimation. Political parties, being created or thought of as the main vehicles of representation and political change, are directly subjected to the expressed consent of their electorate. Most directly, consent or disapproval of political parties is conveyed through voting at general elections, but it is also reflected in public opinion, public trust, protests and demonstrations, or party activism and party membership. Recent research on political parties suggests that the legitimacy of European representative democracies is slowly eroding (Whiteley, 2011) and that some of the underlying motives for subjecting political parties to a growing number of regulations and rules restricting their activity are the hopes that this would restore, at least partly, their legitimacy (Biezen, 2008).

Party regulation, therefore, can be seen as a tool for strengthening the legitimacy of political systems, and of political parties in particular, but at the same time, it can be seen as an attempt of those in power to retain the status quo and prevent change, by creating additional legal barriers for outsiders or new entrants. Whether party regulation promotes or inhibits legitimacy is therefore a complex question unlikely to have an unequivocal answer. Consequently, a debate about the actual effects of party regulation, as well as examinations of pre- and post-regulation political realities, might prove fruitful, for academics as well as policy-makers and political activists concerned with party legislation reform. We have therefore encouraged authors to elaborate on the extent to which party law has an effect on the party organisations and the party systems, as well as broader phenomena such as political accountability or political corruption.

The legal regulation of political parties

Political parties’ role and participation in a state’s political life can be seen not only from the number of parties entering electoral competitions around the world, but also from the increased attention devoted to these institutions, especially by legislators. National constitutions, for example, include an increasing number of references to political parties, while a growing number of countries have also adopted specific laws on parties and party finance, aimed at regulating the political parties’ internal and external organisational activities, as well as matters related to their financial management (Biezen, 2012).

With the rising amount of regulation that political parties are subjected to in the present day, a central question relates to the consequences that these regulations have on the party systems within which parties operate as well as on the organisation and functioning of the parties themselves. It is interesting to investigate not only the regulations and their development per se, but also how they affect the behaviour and political choices of both parties in power and parties outside parliament. However, despite the degree of legal regulation of contemporary political parties, and despite recent interest in the subject of party regulation in the academic community (Avnon, 1995; Biezen, 2013; Casal-Bértoa et al., forthcoming; Gauja, 2010; Janda, 2005; Karvonen, 2007), little has been said so far about the theoretical and empirical puzzles that party regulation creates. The latter have many faces. Notwithstanding the intentions with which party regulation was first promulgated, it has been pointed out that rules often create inequalities among parties (e.g. Biezen and Rashkova, 2012), among party members (e.g. Biezen and Piccio, 2013) or even among opportunities for future change, for example in the equality of gender representation (Biezen and Rashkova, 2014a).

Offering one of the first comparative accounts of the effect of party regulation, Biezen and Rashkova (2012) examine the potential deterrence that legal regulation may have on the parliamentary entry of new parties. Using data from over 30 European democracies, their analysis shows that while regulation does not hinder the formation of new parties, it does have an adverse effect on the number of new legislative entrants. In addition to its impact on the party system, party regulation is often responsible for shaping a party’s internal affairs. Biezen and Piccio (2013), for example, in their analysis of the legal regulation of internal party organisation, conclude that the increased levels of state intervention in internal party democracy raise concerns about democratic legitimacy and state centralisation of political participation. Furthermore, the existing question of women’s under-representation has recently inspired a series of works aiming at deciphering the role of party regulation in achieving, or obstructing, gender equality (see Biezen and Rashkova, 2014b).

Other works studying party regulation examine the effect of the payout threshold of public funding for political parties on the party system (Scarrow, 2006) or the factors influencing variation in the time of the adoption of state funding for parties across Europe (Koss, 2011). Turning to Latin America, Casas-Zamora’s (2005) excellent contribution to the study of the regulation of party funding gives a detailed account of the development of state funding systems in this region of the world and their effect on parties, the party system and political finance practices. One of the notable conjectures of his work is that direct state funding is a far less powerful instrument for shaping party systems than envisaged. In a very recent study comparing Australia, Canada and Germany, McMenamin (2013) changes the focus from public to private financing of political parties and examines why businesses contribute to political parties and ‘if money talks, what does it say?’

The findings of the scholarship on party regulation thus far seem to suggest that the regulation of political parties is related both theoretically and empirically to the concept of political legitimacy. Yet, even when broadly defined, the relationship has thus far received significantly less attention than it deserves. In that vein, we put together the workshop that hosted the papers that are presented here.

The contributions

In the context of the works on political legitimacy and party regulation discussed above, the current collection of articles stands out in a number of ways. Its first and most distinctive feature is the attempt made by the authors to theoretically link particular aspects of party regulation to the concept of political legitimacy. Svåsand’s account of party regulation in Malawi, for example, translates the first of Beetham’s legitimacy conditions – that of legality – into a detailed examination of the legal regulation of access to power. The article looks at candidate nomination procedures, campaign rules and rules on representation in parliament and evaluates their effect on the structure of the political system. The justifiability of rules, and in particular the justifiability of parties through legal rules, is examined in the contributions of Gherghina and Scherlis, as well as Molenaar, who discuss regulation vis-à-vis specific issues such as membership rates and party-formation costs, as well as their broader relevance concerning different stages of evolution of party regulation. Gauja examines the role of the courts and finds that, even when working within similar parameters, courts may arrive at very different decisions, underscoring that the regulation of political parties through public law is inherently connected to the lawmakers’ own normative conception of representative democracy (cf. Biezen, 2008). At the same time, Whiteley’s (2011) critique of the adverse effect of heavy regulation of political parties on public trust, and the complexity of the role of party regulation on public opinion about party corruption demonstrated by Casal-Bértoa et al., speak to the last criterion of political legitimacy that Beetham (1991a) delineates – that of legitimation through expressed actions and consent. These articles offer an examination of Beetham’s criterion of the demonstrable expression of consent.

A second distinctive feature of the present volume is its emphasis on the empirical effects of party regulation. Each article examines a unique aspect of the relationship between party regulation and the political outcomes that ensue. Providing new data on the chronological development of party regulation in Latin American countries, Molenaar paints a rather grim picture for the proponents of legitimation through legal rules. She maintains that, while present-day party laws aim to create internally democratic, well-institutionalised and transparent political parties, in reality, observed party behaviour deviates considerably from that intended by law. A somewhat different perspective is provided by Scherlis’ account of electoral reform in Argentina, Colombia, Mexico and Peru. He looks for the reasons behind the specific chain of events during reforms in those four countries, and concludes that there is an observable, but thus far overlooked trend in the lowering and then the raising of ballot access requirements, as the answer to first a spiralling legitimacy crisis and then to the political fragmentation that followed the initial reforms. In essence, these two articles provide an account of opposite sides of the same coin – one in which legal regulation aims to achieve political legitimacy and another in which the regulatory reform emerges as a reaction to a perceived legitimacy crisis.

Casal-Bértoa et al. further study the question of whether party regulation increases political legitimacy or not. They examine the effect of regulation of the public and private funding of political parties on perceived corruption of political parties. Questioning conventional wisdom – that party regulation should restrain political malpractice – Casal-Bértoa et al. provide preliminary evidence that party regulation more often than not fails to live up to expectations of its effects. Gherghina’s survey of internal party regulation on membership requirements across East-European states and Whiteley’s examination of the relationship between political parties’ dependency on the state and declining party memberships across Europe make a perhaps inconvenient, but important contribution to the findings of this volume. The authors suggest that the more heavily regulated political parties are, the smaller their membership. Echoing these and the findings of most of the other articles, Svåsand’s analysis of the development and the effect of party regulation in Malawi offers a similar conclusion – that formal rules meant to strengthen political parties have not functioned as intended.

A third distinctive feature of the collection of articles included in this volume is the diversity of method and data selection. The combination of articles using qualitative analysis and quantitative techniques, as well as comparative examination versus case study designs, gives a richness of empirical account that cannot be achieved with studies favouring a single methodological approach. In addition to employing alternative methods, the broad empirical coverage spanning from East and West Europe to North and South America, Australasia and Africa gives supplementary strength to the offered findings.

A final contribution that this volume offers is the unique data offered in individual reports. Gherghina’s article surveying intraparty membership provisions in 28 East-European political parties stands out particularly in this respect. The study of perceived corruption of political parties executed by Casal-Bértoa et al. also employs a set of explanatory factors originally coded by the authors using the Leiden Database on Legal Regulation of Political Parties (Biezen, 2013). This data is publicly available and can be used in further analyses of the content or the effect of party regulation across post-war European democracies. Svåsand provides evidence of the evolution of the party system under the influence of party regulation in Malawi. The works of Scherlis and Molenaar, respectively, offer invaluable information about party-formation costs in Latin American states and chronological data on the introduction of spending restrictions and limits to private donations to political parties in the regions. Gauja examines the common law democracies of Australia, Canada, New Zealand, the United Kingdom and the United States and provides an in-depth examination of key court judgements.

Using diverse methodological approaches and a wealth of data to make their case, the articles included in the volume find a substantial link between the growing regulation of political parties and the legitimacy that these institutions enjoy. Most authors conclude that despite its intention, the conventional truth that quantity does not imply quality is valid also for the relationship between regulation and legitimacy. The collection of articles demonstrates that adding rules and regulations does not result in more institutionalised, transparent or more trusted political parties. Quite the opposite, in fact, as some of our authors find that the creation of too many formal rules can not only undermine trust in political parties and lower public opinion about their practices and intentions, but can also alienate their core supporters – the party members. The findings of these investigations suggest that regulation in itself does not necessarily promote political legitimacy and the adoption of additional rules, whether they constrain or liberate party behaviour, is not sufficient for the legitimation of those who are in power. This conclusion offers scope for further rethinking of the three criteria for legitimacy identified by Beetham. In light of the analyses of the relationship between political legitimacy and party regulation presented in this volume, it is possible that there may be a missing link between the justification and the legitimation criteria, and this link could, at least in the context of political parties, very well be that of implementation. With that thought in mind, we hope that this special issue will enrich the existing scholarship on party regulation and political legitimacy and will inspire future work on the subject from both a normative and an empirical perspective.