Heather Gerken views the political party faithful in the Republican and Democratic parties as “the most glorious creatures in American politics.”

But Gerken, the J. Skelly Wright Professor at Yale Law School, told several hundred people in the Appellate Courtroom in Eckstein Hall on Monday that she is concerned that the party faithful are being left out as political power moves increasingly into “shadow parties” of powerful people in political elites. She feared the result would be a decrease in the force on parties to “do right” by voters.

Gerken, whose views on how politics works in America have received wide attention from both scholars and policymakers, gave the annual Boden Lecture at Marquette University Law School.

In a second session at the Law School, she addressed a separate provocative topic: how innovation in American policy has been undertaken increasingly at the state and local levels in recent years, rather than at the national level. She discussed “How ‘Local’ Should Politics Be?” along with Charles Franklin, professor of law and public policy at the Law School, and Craig Gilbert, Washington bureau chief of the Milwaukee Journal Sentinel, as part of the “On the Issues with Mike Gousha” series.

In her Boden Lecture, Gerken gave her perspective on the impact of the Supreme Court’s Citizens United decision in 2012 that lifted caps on political spending by corporations and labor unions. While many critics say that the decision opened the floodgates to super-rich individuals and corporations to back political campaigns with “dark money” that cannot be traced to specific donors, Gerken said that the floodgates were open in many ways before that decision.

What Citizens United in fact did, she said, is narrow the definition of what potentially could be corruption so that activity involving access to politicians and ingratiation of people or organizations with politicians is not covered. The result was an easing of regulation that gave what she called “shadow parties” powerful roles.

“As much as I worry about dark money, I worry more about shadow parties,” Gerken said. “I worry that the dark money trend is just a symptom of a deeper trend than campaign finance.” She said the issue “is less about the amount of money that is being spent, it’s about how it’s being spent. And it’s a point that is less about money and more about power and where power is moving.”

Rather than creating more independent—and potentially unconventional—powerbases separate from the major political parties funded with big money, as some predicted, Citizens United has given parties more power, but through the elites and “shadow parties” that it allowed, Gerken said.

“While the amount of money has shifted out of the formal party structure, it is not being controlled by independent millionaires and billionaires,” she said. “In fact, the parties are still in control of where the money is.” There was a lot of overlap and interaction between party bosses and the “super-PACS” that spent huge sums on the 2012 presidential election.

Gerken said that was powerfully illustrated by television comedian and commentator Stephen Colbert, who created his own super-PAC. She said Colbert’s depiction on his TV show of the way super-PACs work was “too accurate to be funny. He’s playing it straight. The reality is the farce, the comedy is the tragedy.”

Who is at risk of being left out of the decision making as elites and shadow parties exert more influence? Gerken put at the top of the list the party faithful—“the everyday people who are passionate about politics, the ones who do the ground work, the arms and legs of any campaign.” She said she was concerned about the impact as nomination and campaign decisions are increasingly made by shadow parties and the faithful are left in the shell of the formal parties.

During the “On the Issues” discussion of federal, state, local political decision making, Gerken said change and initiative were increasingly being found at state and local levels. She said the perspective that many liberals hold that problems are best solved at the national level does not really fit what is going on nationwide.

“This is not your father’s federalism anymore,” she said, even on issues such as race-related matters and protecting the rights of dissidents that liberals have often held up as best handled at the federal level. Things can be done at the state level that can’t be done at the federal level, Gerken said.

Gilbert, the Journal Sentinel political reporter who is doing research at the Law School for six months as a Lubar Fellow for Public Policy Research, agreed that “nobody’s agenda is getting very far in Washington.” He pointed to issues such as gay marriage and liberalization of marijuana laws as examples of changes that arose from local and state action but are becoming widespread.

Franklin said you could see the influence of state-based decision making in the way the new federal law on health insurance is being implemented. He wondered how much the role of policy initiatives mattered to voters when compared to classic government services such as picking up the garbage.

Gerken said the “messiness” of politics and policy development, including inconsistencies from state to state, was not a problem to her. In fact, she said, “I love it.”

Gousha asked her if she thought states were functioning as 50 laboratories for public policy. Gerken said that is “mostly a campfire story.” There are really two labs, she said: “a red lab and a blue lab.” Partisans are using states and, in some cases, local governments to “tee-up issues and show how an idea works.”

Gerken has been a strong voice for doing more to improve the way elections are conducted nationwide. She has focused on issues such as long waiting lines and the degree of accuracy of ballot counting. Gerken said the disputed outcome of the Florida presidential vote in 2000 and the close outcome in Ohio in 2004 put the issue in the spotlight, but poorly run elections are more common than many people realize.

Gousha asked her to describe an idea she had several years ago to create a “democracy index.” That led to creation of an “elections performance index” by the Pew Charitable Trusts.

Early work on that effort has found that Wisconsin and Minnesota score well when it comes to running elections, she said, but some states, even ones with reputations for well-run elections, did not do well when measured by the 17 factors involved.

What would she say to people who have criticized the way Wisconsin elections are run? “You are spoiled,” she said.

Gerken’s Boden Lecture will appear in future issues of Marquette Lawyer and the Marquette Law Review.

To view the Boden Lecture, click here.  

To view the “On the Issues” session with Heather Gerken, Charles Franklin, and Craig Gilbert, click here.