By Lambert Strether of Corrente.

An alert reader who is a representative of the class that’s suing the DNC Services Corporation for fraud in the 2016 Democratic primary — WILDING et al. v. DNC SERVICES CORPORATION et al., a.k.a. the “DNC lawsuit” — threw some interesting mail over the transom; it’s from Elizabeth Beck of Beck & Lee, the firm that brought the case on behalf of the (putatively) defrauded class (and hence their lawyer). Beck’s letter reads in relevant part:

[Y]ou may have heard on some early independent news reports (the earliest reports were via tweets from the attorneys on the case), the appellate court [the 11th Circuit Court of Appeals] has issued a preliminary order in our favor dispensing with one jurisdictional issue that the lower court had raised…. In dispensing with this issue, the Court is allowing the appeal to continue to proceed. The appellate court could have thrown out the appeal, but chose to allow Plaintiffs to amend the Complaint, and agreed with us that with the changes, the jurisdictional issue raised by the lower court is resolved. I would like to take this opportunity to caution against any premature exultation, as the ultimate odds are not in our favor (only about 5% or so of civil appeals are overturned, on average).

(Beck & Lee have stored documents relating to the case here. This is the amended filing; this is the appellate court’s decision.) It’s very good news that the DNC lawsuit is back from the dead, if only because it’s A Good Thing that the Democratic Party continues to be put on the record about what it thinks it is, and how thinks it is entitled to act. Truthdig summarizes the theory of the case:

All this is context for a lawsuit against the Democratic National Committee that has been slowly wending its way through a federal district court in Florida. The suit contends that the DNC engaged in fraud by reneging on a key commitment in its charter. The DNC charter is fairly explicit. Article V, Section 4 says: “In the conduct and management of the affairs and procedures of the Democratic National Committee, particularly as they apply to the preparation and conduct of the Presidential nomination process, the Chairperson shall exercise impartiality and evenhandedness as between the Presidential candidates and campaigns.” The charter goes on to state: “The Chairperson shall be responsible for ensuring that the national officers and staff of the Democratic National Committee maintain impartiality and evenhandedness during the Democratic Party Presidential nominating process.” DNC emails that reached the public a year ago show direct and purposeful violations of those DNC rules. As The New York Times reported with understatement days before the national convention, “The emails appear to bolster Mr. Sanders’s claims that the committee, and in particular [DNC Chair Debbie] Wasserman Schultz, did not treat him fairly.”

The theory of the case is, in other words, consumer fraud (!); small DNC donors were sold a bill of goods. From my own summary:

One prong of the plaintiff’s case is based on consumer fraud law: The DNC represented itself as being neutral and people donated money to it on that basis, when in fact (as shown by the Gufficer 2.0 documents) the DNC had its thumb on the scale for Clinton the whole time. I’m not sure I’m comfortable thinking of citizens as consumers.

That said, the revivification of the DNC lawsuit serves as a story hook for me to try to advance the story on the nature of political parties as such, the Democratic Party as an institution, and the function that the Democratic Party serves. I will meander through those three topics, then, and conclude.

What Sort of Legal Entity is a Political Party?

I present the following exchange between myself and a subject matter expert. I asked:

What sort of legal entity is the Democratic Party, anyhow? It’s not a profit-making corporation. It’s not a 501(c)(3) or whatever. It’s not a membership organization like the DSA or British Labour. But if you believe the DNC’s lawyer in the Beck case, the party can choose whatever candidates it wants in a smoke-filled room. So apparently it’s not an association of voters. They also get (yes?) public money for running elections.

And the expert concluded:

This question is fantastically complicated.

So yet again, I didn’t find the bird![1] However, the expert did recommend that I read this article: Benjamin D. Black, “Developments in the State Regulation of Major and Minor Political Parties,” Cornell Law Review, Volume 82, Issue 1, November 1996 (PDF). There, I found the following passage:

Political parties were purely private organizations from the 1790s until the Civil War. Thus, “it was no more illegal to commit fraud in the party caucus or primary than it would be to do so in the election of officers of a drinking club.” However, due to the efforts of Robert La Follette and the Progressives, states began to treat political parties as “public agencies” during the early 1890s and 1900s; by the 1920s “most states had adopted a succession of mandatory statutes regulating every major aspect of the parties’ structures and operations.” Because the parties were “public” under conventional constitutional doctrine, the courts “deprive[d] the parties of the protections of the Bill of Rights.” By the 1970s, federal courts considered “virtually every aspect of the party’s presidential nomination process .. .state action,” and thus, subject to state regulation. At the same time, however, the Court issued a number of decisions that treated political parties as private organizations that held First Amendment rights. By recognizing that political parties are holders of First Amendment rights in some circumstances, the Court created a dilemma— parties could be both public and private entities depending on the particular activity in question.

Oh good[2]. At this point, the reader will recall Zephyr Teachout’s work on corruption:

While 1787 delegates disagreed on when corruption might occur, they brought a general shared understanding of what political corruption meant. To the delegates, political corruption referred to self-serving use of public power for private ends, including, without limitation, bribery, public decisions to serve private wealth made because of dependent relationships, public decisions to serve executive power made because of dependent relationships, and use by public officials of their positions of power to become wealthy. Two features of the definitional framework of corruption at the time deserve special attention, because they are not frequently articulated by all modern academics or judges. The first feature is that corruption was defined in terms of an attitude toward public service, not in relation to a set of criminal laws. The second feature is that citizenship was understood to be a public office. The delegates believed that non-elected citizens wielding or attempting to influence public power can be corrupt and that elite corruption is a serious threat to a polity.

You can see how a political party — a strange, amphibious creature, public one moment, private the next — is virtually optimized to create a phishing equilibrium for corruption. However, I didn’t really answer my question, did I? I still don’t know what sort of legal entity the Democratic Party is. However, I can say what the Democratic Party is not.

Institutionally, the Democratic Party Is Not Democratic

Here I want to consolidate some earlier NC material. First, on why superdelegates have a voice in choosing candidates, this video from a Democratic superdelegate. From October 25, 2017:

The purpose of superdelegates, explained. Listen to the whole thing: #DNC Unity still supporting Super-Delegates everybody should listen very carefully. #SaturdayMorninghttps://t.co/3A6vygguhR 👈🏽👈🏽👆🏽👆🏽 pic.twitter.com/qb8iUXI6qs &mdash; StarLord35 🌹 (@StarLord35) October 21, 2017 So the purpose of superdelegates is to veto a popular choice, if they decide the popular choice “can’t govern.” But this is circular. Do you think for a moment that the Clintonites would have tried to make sure President Sanders couldn’t have governed? You bet they would have, and from Day One.

And since when do Democrats want to govern, anyhow? Obama had the chance to be a second FDR, and under the most charitable interpretation possible, he went into the Rube Goldberg Device-building racket (“… (M), allowing donations to a Presidential Library, thereby cashing in [ka-ching].” And no, I don’t care that the DNC Unity Commission has recommended reducing the number of superdelegates. First, the Rules and Bylaws Committee, having been purged of Sanders supporters[3], has yet to vote on the recomendation. More importantly, you can bet that the number of superdelegates retained is enough for the superdelegates, as a class, to maintain their death grip on the party.)

Second, on how candidates could be chosen if the Democratic Party decided to do it that way. From the DNC’s lawyer in the DNC fraud case:

The Democrat Party Has No Obligation to be Democratic Page 36 of the transcript: MR. SPIVA: [W}here you have a party that’s saying, We’re gonna, you know, choose our standard bearer, and we’re gonna follow these general rules of the road, which we are voluntarily deciding, we could have — and we could have voluntarily decided that, Look, we’re gonna go into back rooms like they used to and smoke cigars and pick the candidate that way. That’s not the way it was done. But they could have. And that would have also been their right, and it would drag the Court well into party politics, internal party politics to answer those questions. That’s exactly “the way it was done”, as the Podesta mails and the Guccifer 2.0 documents show.

Of course, if indeed the Democratic party is an amphibian, both public and private, there may very well be public questions that go beyond private “internal party politics” (though I’m not sure Beck’s consumer law-oriented theory of the case can take that line). And from the conflation of public and private we turn to corruption.

Functionally, the Democratic Party Is a Money Trough for Self-Dealing Consultants

Here once again is Nomiki Konst’s amazing video, before the DNC:

Those millions! That’s real money! In an earlier article in Medium, Konst wrote:

Today, it is openly acknowledged by many members that the DNC and the Clinton campaign were running an operation together. In fact, it doesn’t take much research beyond FEC filings to see that six of the top major consulting firms had simultaneous contracts with the DNC and HRC — collectively earning over $335 million since 2015 [this figure balloons in Konst’s video because she got a look at the actual budget]. (This does not include SuperPACs.) One firm, GMMB earned $236.3 million from HFA and $5.3 from the DNC in 2016. Joel Benenson, a pollster and strategist who frequents cable news, collected $4.1m from HFA while simultaneously earning $3.3 million from the DNC. Perkins Coie law firm collected $3.8 million from the DNC, $481,979 from the Convention fund and $1.8 million from HFA in 2016.

It gets worse. Not only do the DNC’s favored consultants pick sides in the primaries, they serve on the DNC boards so they can give themselves donor money. Andrew Dobbs, an activist and organizer from Austin, TX writes:

Primary among these structural choices is the fact that the DNC—the party’s governing body—actually allows political consultants to be elected as members and then even allows those members to be vendors to the party and to campaigns they are supporting .

And:

This self-dealing means that the interests of the consultant class will always have a privileged place in campaign decision-making.

As we saw in 2016, where the DNC consultants picked sides (and if that’s not “rigging” the primaries, tell me what is). Having self-dealt themselves contracts, the consultants[4] then maximize their fees:

These campaign consultants make a lot more money off of TV and mail than they do off of field efforts. Field efforts are long-term, labor-intensive, high overhead expenditures that do not have big margins from which the consultants can draw their payouts. They also don’t allow the consultants to make money off of multiple campaigns all in the same cycle, while media and mail campaigns can be done from their DC office for dozens of clients all at the same time. They get paid whether campaigns win or lose, so effectiveness is irrelevant to them.

Now, I think it would be a little strong to say that the Democratic Party is nothing more than a layer of indirection between the donor class and the Democratic consultants and the campaigns they run; after all, the Democratic Party — in its current incarnation — has important roles to play in not expanding its “own” electorate through voter registration, in the care and feeding of the intelligence community, in warmongering, in the continual buffing and polishing of neoliberal ideology, and in general keeping the Overton Window firmly nailed in place against policies that would convey universal concrete material benefits, especially to the working class. Those are all very important!

Conclusion

Seth Ackerman gives this definition of an “inside/outside” strategy; the bottom line is that if Democratic Party controls ballot access for the forseeable future, they have to be gone through as well as around. But if the nature of the Democratic Party as an institution and/or legal entity cannot be specified — and I’m not sure that either Ackermann in 2017 or Black in 1996 do this — it’s like going to war without knowing the enemy’s order of battle. Not a recipe for victory. More work needed. And it’s “fantastically complicated.” So, again, I haven’t found the bird!

* * *

Readers will note that in the headline I wrote “Democratic Party” out of deference to those who recall the Republicans of forty years ago deploying “Democrat Party” as a smear. However, I’ve come to prefer “Democrat Party” regardless of past party wars, on the grounds that Democrats have to earn to moniker “Democratic,” and not merely claim it.

NOTES

[1] “Every so often, I feel that I have cause to recall the famous New Yorker story about the writer who heard about a bird in the woods, said to be extinct. So he went to report on the story, found the local who thought they’d heard the bird’s song, bought some yellow waders, hired guides and a boat, and set out through the swamps and the Spanish moss and the dripping and the stinging insects in search of the bird. Long-form story short, they never found the bird. So what’s the point of a story where you don’t find the bird?”

[2] Black also writes:

Any interpretation of the Elections Clause should also recognize a simple historical fact: when this provision was drafted, political parties were generally unknown and positively feared. To the Founders, the entire structure of our government-the separation of powers-was predicated on a fear that factions, operating through parties, would impose their will on the country. John Taylor, a Founding Father and libertarian from Virginia, lamented: “The situation of the public good, in the hands of the two parties nearly poised as to numbers, must be extremely perilous. ‘ John Adams feared the specter of the “division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to one another.” Regardless of whether the Founders’ fears were politically naive, unreasonable, or unfounded, it is fair to conclude that the Founders evinced no particular theory of party politics, let alone one desiring continuous two-party domination of American politics.

(I’d speculate that the two parties feared by Taylor and Adams would be pro- and anti-slavery; whenever you see the word “property” in the Federalist Paper, remember that slaves were property.) Surely, then, a strict constructionist would conclude that there’s no Constitutional justification for parties. Parties don’t seem to be working very well. Perhaps, rather than tinkering round the edges with consumer law, a suit should be brought to abolish political parties altogether? (The DSA, a membership organization with no ballot line, would in my view not be a party in the same way that the Democrats and Republicans are.)

[3] In retrospect, despite Sanders evident appeal and the power of his list, I think it would have been best if their faction’s pushback had been much stronger; expressions of outrage were insufficient. Physical occupation of DNC premises would have been fully warranted.

[4] Oddy, or not, these consultants go unmentioned in the press, at least collectively. Individually, they’re all over the airwaves like cheap suits. Here’s a list: