Emerging democracies face a quandary in devising party law: if governments have no law stating what parties are, and what they can do, then they risk unregulated parties operating with little accountability. Too much law (stipulating organisation, campaigning and operation) stifles political growth. This paper from the National Democratic Institute analyses party law in all its forms and asks how much law is just right. Exploring five models of regulation, it compares older democracies and those in transition, and warns against too much regulation, too soon.
Party law comprises both those state regulations determining the legal status of political parties, their constitution and operations, and also the state regulations that cover anything pertaining to political parties within electoral, campaign,political finance, and constitutional law.
Unquestionably, a nation’s party law affects its political parties. But which laws have what effects? If regulating parties through law is problematic in established democracies, designing law to produce desirable parties in transitional countries is hazardous. American practitioners concerned with democratic party-building abroad desire parties that, amongst other things, focus on political rather than ethnic/religious/regional ideologies, and are internally democratic, co-operative and accountable. Unfortunately, parties of this type are not very common in developing countries.
Assessing party law across nations, there are five broad policy models:
- Proscription: outlawing all political parties by denying them status. One method is to omit their mention within the constitution, although this is not a definite sign of proscription. Activities that foster disunity or division may be forbidden, or groups may be banned under certain conditions.
- Permission: the lack of any specification of what constitutes party membership, organisation, leader selection or finance.
- Promotion: laws enacted to promote the creation and continuance of certain political parties, such as in countries specifying proportional representation as a requirement. Granting party subsidies supports the continued existence of current parties, enhancing their capacity to resist challenges from newly mobilised alternatives.
- Protection: legal frameworks may be built to fend off competition from new parties, in practices such as controlling candidate and party access to election ballots. Immediate loss of seat for party defection is another method of control, benefiting party leaders.
- Prescription: micromanagement of party organisation and behaviour, citing intra-party democracy as a party pre-requisite, for example, or requiring multi-ethnic membership.
Prescriptive and protectionist models of party law can deter or control political parties. The permissive model risks the creation of a proliferation of minor parties, and chaotic government – easily remedied through additional legislation.
- Through party law, nations can preserve a competitive party system once created, but a system of independent competitive policies is unlikely to be created through legislation.
- In most advanced democracies, parties were created and grew without being mentioned in the national constitution. Given the increased complexity of changing regulations on a constitutional level, a more flexible approach to political development might be obtained through using legislative statutes.
- Aggregation or articulation? The collection and balancing of conflicting political interests is often high on the agenda of policy makers in emerging democracies, for example, to avoid violence between competing ethnic or religious groups. Greater emphasis on the articulation of such groups, however, may result in a more robust and legitimate democracy.
- Parliamentary or presidential government? The possible dampening influence of a strong president over the development of a young legislature should be considered.
- Prescriptive regulation can place parties under pressure to adapt to both the demands of competition with other parties as well as specified forms of internal democracy.
