So You Want to Run for President?  Ha! Barriers to Third-Party Entry

by RALPH NADER and THERESA AMATO

National Civic Review, Summer 2001, page 163

Article II of the U.S. Constitution, the part where it says "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President," is disconnected from realpolitik. If it reflected today's reality, it would read more along these lines:

No person who cannot overcome arcane ballot access laws in fifty states and is not a billionaire shall be eligible to the office of president except those nominated by the reigning duopoly and condoned by the New York Times and Washington Post or the five polling companies that are contracted to provide polls to the bipartisan, corporate-funded commission on presidential debates lest they be thought to clutter the playing field or deprive one of the other candidates of their rightful entitlement to all the votes that the aspiring person might otherwise take.

Running for president as a third-party candidate permits an eyewitness view of the multifaceted barriers that prevent third parties in this country from competing fairly in the democratic process. The hurdles are so prevalent that leaders of oligarchic regimes in foreign countries might blush. From media coverage to ballot access and participation in the presidential debates, the obstacles to competing in the political process loom large and the political will to reduce them is puny.

Media Coverage

Our campaign was launched in February 2000 to seek the presidential nomination of the Green Party because of the democracy gap in our country. The announcement came at an opening address at the Madison Hotel in Washington, D.C., replete with an extensive explanation about how civil society is having a harder time getting things done because corporate influence and dollars have rendered a bought-and-paid-for political scene in Washington that either is beholden to their corporate paymasters or largely indifferent to corporate control of some of our basic public institutions. The resulting loss attributable to this gap was discussed in detail. The Washington Post, which is headquartered across 15th Street, could not be bothered to send a reporter. There were some cameras and other reporters, but almost no coverage. The announcement earned a three-hundred-word squib in the New York Times, akin to the amount of space they devote to a couple of marriage notices.

The first lesson of entering the race for president as a citizen seeking a third-party nomination rather than as a major party candidate was that one can count on receiving almost no media coverage. If you don't speak in eight-second sound bites, you're not likely to get coverage in the standard seventeen minutes of corporate news cycles exclusively filled by leads that bleed, lengthy weather reports, cute animal stories, and chitchat between the anchors. Even when the campaign filled Madison Square Garden in mid-October, on ten days' notice, with more than fifteen thousand paying people, the Washington Post still did not cover it. The Nader campaign was unique in its ability to draw such large paying crowds to its political rallies. It is one thing to fail to provide daily coverage of third-party candidates, even while routine coverage of major party candidates extends to the trivial, but it is another matter to fail to report the history-making aspects of a third-party campaign.

Throughout the campaign, all that the press wanted to cover was the horse race. A candidate can talk about the death penalty; child poverty; racial profiling; corporate crime, fraud, and abuse; the failed war on drugs; the millions of people without health insurance; campaign finance failures; and all the pressing problems of the day. The candidate can go to all fifty states, to housing projects and homeless shelters, and put out sixty-plus position papers, and two to four press releases a day. Yet at the end of the day, the only thing the press cares about is the horse race and whether a third-party candidate is "stealing" votes from either or both of the major party candidates. The use of the press's language itself is indicative of the two-party mind-set: a candidate who competes in a primary is accorded equal footing as a "challenger" with the "frontrunner," while a third-party candidate who competes in the general election is considered a "spoiler" for daring to enter the duopolists' playing field and s tealing votes.

If you do get coverage as a third-party candidate, it is likely to be cast as some kind of style or feature story. Third-party candidates are not news; they are treated just as oddities--or worse, clutter. The New York Times, as early as June, pronounced in its lead editorial that the voters should have a clear thumbs up or down choice on just Bush and Gore. The Nader-LaDuke campaign was considered to be cluttering the field. Over the course of the campaign, it became apparent that the New York Times would say just about anything to make sure that Al Gore won. This was the case not only for the editorial board, since some reporters would editorialize as well. There were some notable exceptions among the media, such as the Village Voice and The Nation, but not many

Of course, most third parties cannot afford much media advertising. Our campaign spent under $2 million on media advertising. Pat Buchanan spent nearly everything from the Reform Party millions on ballot access or advertisements. According to posted FEC records, the Bush campaign spent approximately $73 million on media. The Gore campaign spent approximately $51 million. This does not include what the parties or advocacy groups spent on media on behalf of the major-party candidates. A substantial percentage of the contributions made to campaigns or parties are thus funneled into the television broadcasters' pockets to pay for ads that are mostly displayed in the swing states, with virtually all other states being ignored.

The Alliance for Better Campaigns, a public-interest group led by Paul Taylor, has a study on its Website (www.bettercampaigns.org) about the broadcasters and their price gouging entitled "Gouging Democracy" (See also www.Greedytv.org, and the article in this issue of the National Civic Review by Matt Farrey of the alliance.) The television industry raked in more than $770 million for political ads in the 2000 elections; of the stations surveyed, most provided less than forty-five seconds a night of coverage--total--for the candidates. No wonder the television networks barely cover the two major party conventions. It appears to be better for their bottom line to freeze out the politicians and make them pay top dollar for ads in order to get any time at all on the publicly owned airwaves.

Of course, since the system serves the duopolists well, neither party in Congress has much incentive to change it. Candidates seem to prefer having controlled messages compacted into thirty-second ads. (Some candidates refused to have a press conference for weeks on end!) If we want fair elections, though, then the landlords of the airwaves--the taxpayers who own this piece of the commonwealth--should be able to require that the tenants (the broadcasters who rent these public assets) provide free airtime to candidates who are on the ballot for public office.

Ballot Access

Apart from the problems in getting coverage, how do candidates for president actually get in the position where the voters can vote for them? In the United States, each state has not only its own specially designed (butterfly) ballot but also its own arcane set of grossly complicated procedures for getting on the ballot. Mind you, bipartisan-controlled state assemblies created all these incredible obstacles.

Richard Winger, who publishes Ballot Access News (www.ballot-access.org), does a formidable job of chronicling these outrages. Among the crippling provisions encountered during election 2000, consider these:

• To qualify for the ballot in Texas, a political party needed to collect 37,713 signatures in a seventy-five-day period; those who signed the petition could not have voted in the state's primary.

• In North Carolina, a party needed 51,324 signatures by May 15 of the election year. By statute, the petition has a must-carry phrase that reads "The signers of this petition intend to organize a new political party. . . ." To contemplate the chilling effect, simply ask yourself: When was the last time you signed something that would require you to commit to organizing a new political party?

• In Virginia, a candidate needs 10,000 signatures, four hundred from each congressional district. Circulators there can only petition in the county they live in and an adjacent county.

• In Illinois, a new party needs 25,000 signatures to get on the ballot, while "established parties" only need 5,000 signatures.

• In Oklahoma, 36,202 signatures are required for a candidate to qualify for the ballot. With a population of 3,350,000, Oklahoma ranks 28th in the nation in population, but its total signature requirement is the fourth highest in the United States and the highest per capita in the country.

• Oklahoma (along with South Dakota) doesn't allow write-in votes, which strikes us as a lawsuit waiting to happen.

Those are just the raw number barriers. But there are also excessive filing fees, early deadlines, and administrative hurdles. For example, in Pennsylvania, the state requires signature forms on special colored paper; it only provided four hundred forms though our volunteers needed more than two thousand. The state would not accept forms downloaded from the Internet. In West Virginia and Georgia, the filing fee is $4,000! In Michigan, petition forms had to be on odd-sized paper (8-1/2 by 13 inches).

In many states, our petitioners were harassed and threatened with arrest by officials with a shallow understanding of the First Amendment for circulating petitions in public places or taxpayer-financed parks and recreation areas. In Mississippi, the mayor of Tupelo stopped our petitioners from working in the town square at a festival on the Fourth of July. In Ohio, our petitioners were stopped from collecting signatures at a public market in West Cleveland. The reports from our volunteer petitioners were profiles in courage.

Of course, the Green Party is not the only one to face this challenge. The Libertarian Party the Reform Party, the Natural Law Party, and the Constitutional Party . . . all of the third parties have to go through this charade every time they seek to compete with the established duopolists. What happens when progress is made? The Democrats and Republicans who control the state assemblies and legislatures just run back into session to make the hurdles tougher.

For these reasons, we need to encourage adoption of a model ballot law and remove barriers to entry The Appleseed Center for Electoral Reform and the Harvard Legislative Research Bureau set forth a Model Act for the Democratization of Ballot Access [1] that includes these reforms:

• Lower signature thresholds to a reasonable level

• Eliminate outrageous filing fees

• End constraints on the identity of petitioners and signers

• Establish a filing deadline of, and allow corrections until, September 1 of election year

• Use random sampling for verification

• Eliminate so-called sore-loser bans

• Accept all write-in candidates

• Apply all reforms to independent candidates

• Allow performance in the last two elections as qualification

• Optimally, use a threshold of 0.05 percent party registration to determine ballot access. We also suggest these additional voting reforms to engage more voters in the process:

• Adopt same-day voter registration. Just when most people get excited about politics, in the last few weeks before the election, it is too late to register to vote in most states. State and local officials should act to follow the lead of those six states that allow eligible voters to register right up to the election.

• Open up the two-party system by adopting proportional representation. Around the world, multiparty systems of proportional representation allow citizens more-direct representation in their government. Municipalities across the nation--including New York City--used proportional representation systems for years before the major parties crushed the system. There are countless opportunities at the state and local levels to reestablish this markedly more democratic system.

• Gauge public opinion at the polls by initiating a national nonbinding advisory referendum. We should put forth nonbinding referenda on salient local, state, and national issues for voting on Election Day. This would allow the public an additional mechanism to directly instruct their representatives--instead of forcing elected officials to rely on questionable commercial polls.

• Make every vote count by allowing instant runoff voting. At every government level, we should follow the lead of London and the countries of Ireland and Australia and establish a system of instant runoff voting. By allowing voters to rank candidates (see the articles in this issue of the National Civic Review by Castillo and McGrath, and Richie and Hill, for explanations of how this works), we can liberate citizens to choose their favorite candidate, and ignore the cries of "wasted vote" and "spoiler."

• Adopt a binding, none-of-the-above option. Voters should be able to reject unsatisfactory candidates by choosing none of the above and, if NOTA wins, force a new election with new candidates.

• Demand strict enforcement of the Voting Rights Act. The debacle in Florida highlighted the extreme need for reassessing the impact of race and class on electoral mechanics. The VRA must be enforced strictly to safeguard the basic rights of citizens across the nation.

• Accept a standardized national ballot. There would have been no butterfly-ballot controversy if state and local officials had cooperated in creating an effective standardized system for national elections.

• Make election officials nonpartisan (not bipartisan) at the local, state, and national levels. Officials usually respect the notion that democracy trumps party loyalty, but inherent in a party system is the danger that a few partisan officials will tilt the process in practice. State and local officials must establish systems by which nonpartisan officials control the all-important mechanics of election.

• Count write-in ballots in all states.

• Provide public disclosure of vote totals by precinct on the Internet.

• Provide access to voter registration forms on the Internet.

• Provide voter pamphlets online, at polling places, and by mail to voters.

• Provide nonpolitical assignment of ballot lines.

Presidential Debates

If a third-party candidate braves the Sisyphean daily task of getting a message out to the voters when almost no one in the corporate-conglomerated fourth estate is willing to provide coverage, and if the candidate spends tens of thousands of hours and dollars (in some cases millions) to overcome the ballot access hurdles, there still remains the biggest barrier of all, the traditional mechanism of reaching tens of millions of people in the age of television: participation in presidential debates. The term presidential debate is almost a quaint misnomer considering the love fest of agreement and the exercise in diversion displayed between the major-party candidates during those encounters held last fall. The gatekeeper for the viewing voters is a little-known entity called the Commission on Presidential Debates (CPD).

The Commission on Presidential Debates

In 1907, Congress enacted the Tillman Act, prohibiting corporate contributions to any candidate running for federal office. In the early 1970s, Congress enacted the Federal Election Campaign Act (FECA), which, in part, created an administrative agency, the Federal Election Commission (FEC), to enforce the act's campaign finance and disclosure laws, which include the 1907 prohibition on corporate contributions to federal campaigns. Under these laws, for profit corporations are not allowed to spend money "in connection with" campaigns for federal office, unless the money is used for "nonpartisan activity."

Pursuant to the FECA, which should really be renamed the Duopoly Protection Act, the FEC in the late 1970s told the League of Women Voters (who used to sponsor the presidential debates) that they could not accept money from corporations to help defray the cost of debates.

In 1987, the Democratic and Republican Parties decided to take over the sponsorship of the debates by creating their own commission. Notably, the CPD is run by the former chairmen of the Democratic and Republican parties. After the CPD was established, the FEC (whose commission is composed of three Democrats and three Republicans) rejected its own general counsel's opinion, reversed its prior position, and adopted a regulation that allows corporations to spend money to help stage federal candidate debates.

This loophole created in the regulatory framework established by Congress allows corporate money to tilt the electoral playing field for the two major party candidates. It is our position that the FEC regulation exceeds the statutory authority granted by Congress and should be struck down. The National Voting Rights Institute and pro bono lawyers are currently asking the U.S. Supreme Court to consider the legality of this regulation.

If this legal challenge is successful, corporate sponsors of the CPD debates--which include beer and tobacco companies--would again be subject to the FECAS corporate contribution prohibition. We would then have presidential debates that do not look like Bud bowls filled with corporate logos and an Anheuser-Busch beer tent. In the age of the Invesco Stadium, the Fleet Center, the Target Center, the United Center, and other exercises in corporate naming, can we still imagine any sort of competition not replete with corporate advertisements even when the point is to elect the president of the United States?

Adding insult to injury, eligibility for getting a message out entails permission from a bipartisan commission, funded by beer and tobacco money, that sets an arbitrary standard of reaching a 15 percent rating in five polls of the commission's choosing--polls whose major media parent companies have executives who give lots of money to the duopolists. With these criteria, Abraham Lincoln would have been excluded from the debates; he wasn't even on the ballot in nine states. The debate commission made a mistake, from their viewpoint, by letting Ross Perot into the debates in 1992. The viewership shot up to more than ninety million Americans, and Perot got 19 percent of the vote. But four years later, after the Clinton and Dole camps decided to exclude Perot, network viewership plummeted to forty-two million.

Another independent candidate, Jesse Ventura, got into the gubernatorial debates in Minnesota in 1998, and he became the governor. It was clear during the 2000 presidential election that the Republicans and the Democrats were not prepared to make this mistake again. We received a polite letter saying we didn't meet their self-serving criteria for participation. Who knew that the gatekeepers to the American presidency's electorate sit in a private office in Washington, D.C.?

Indeed, the commission was so terrified of competition they would not even let Ralph Nader physically near the debates. In October 2000, for the first debate at the University of Massachusetts, he had a ticket to get into the auditorium adjacent to the scene of the debates, but the CPD decided to use state troopers to keep him from listening to the debates and from talking to the media at the media trailer--despite the fact that the media had invited him to do so. There are countries abroad that we criticize for this kind of authoritarian behavior. We filed a lawsuit in connection with this action; earlier this year, the federal judge in Boston hearing the case denied the CPD's motion to dismiss.

No coverage, awful ballot laws, no access to the voters through debates ... in the economic world, we would call each of these a barrier to entry that distorts the market from perfect competition. Imagine if we told entrepreneurs that before they were allowed to compete they had to have a 15 percent market share. You can be sure that there would be antitrust suits.

Between the ballot access hurdles and the debate commission, Nader 2000 brought eleven lawsuits in a nine-month campaign thanks to the help of the Brennan Center for Justice at NYU Law School, the National Voting Rights Institute, and pro bono law firms. We had to arrange for the equivalent of a full-time public-interest law firm just to level the playing ground to compete.

This does not even count the need to defend. In a striking case of corporate immolation worthy of a case study at the Harvard Business School, MasterCard decided to sue us for daring to parody their "Priceless" ad campaign in noncommercial use of our campaign finance spoof on the "things money can't buy"--a spot that was designed to move poll numbers and get Nader into the debates. Apparently, MasterCard doesn't share our sense of humor, and although they lost their attempt at a temporary restraining order, they are continuing to sue us even after the election for alleged copyright and trademark infringement.

Campaigns, of course, are not priceless. More than half a billion dollars was raised in soft money by the parties in the last election cycle. The Washington Post in February 2001 editorialized that "the campaign finance system is totally out of control.... In each of the last two presidential cycles, the amount [of soft money] has doubled.... If officeholders aren't being bought by such sums, the offices themselves surely are." [2]

The biggest obstacle to just government action is the corruption of our election campaigns by special-interest money. No one should have to sell out to big business or big donors to run a competitive campaign. Political campaigns should be publicly financed, just like public libraries, parks, and schools. We started the campaign with a $40,000 personal contribution by the candidate. Our average donation was less than $100. We raised a little over $8 million in nine months, taking no corporate money, no PAC money, and no soft money, and we did our frugal best to run a nationwide campaign with the energy of volunteers and the Green Party To put it into perspective, the Democratic Party spent $8 million advertising in the state of Michigan alone.

To remove barriers to entry for third parties, we need to end legalized bribery and support publicly financed campaigns. The McCain-Feingold Bill that is pending as this article was being written is not the solution to dirty-money politics. Although it eliminates soft money, the bill raises hard-money limits, does not provide free airtime for candidates, and does not establish public financing. Therefore, the barriers to entry for serious candidates will remain.

If a candidate overcomes all of these structural barriers, there still remain a host of other problems, such as the bias in favor of the two-party system that we are taught in school, straw polls that do not include any of the other parties (Libertarian Party, Reform Party, Constitution Party, Green Party), and the influence of parental voting patterns. Hereditary voting practices have made voting for a third party an extraordinary political act. Third parties are viewed as freak institutions because the United States doesn't have proportional representation or instant runoff voting as other countries do, and because people are generally unaware of how third parties have advanced justice in this country by raising such radical ideas as abolition of slavery, women's suffrage, the graduated income tax, and deficit reduction.

In the mid-nineteenth century, it took just six years for the Republicans to replace the Whigs as an emerging major party. Given the structural hurdles in place favoring the Democratic and Republican parties, what would it take for a startup to replace either of these entrenched parties today?

What is the price we pay for our forgone democracy? What does it cost us in efforts not undertaken and social justice left unrealized? Currently in the United States, there are thirty-eight million poor people, 20 percent of children live in deep poverty, 80 percent of workers have lost ground since 1973 (after adjusting wages for inflation), forty-six million people are without health insurance, there is a record level of personal bankruptcy, and total consumer debt is more than $6 trillion.

Our country faces critical housing needs, crumbling public works, global warming, forest destruction, air and water pollution, rampant corporate fraud, and numerous public health problems, all against a backdrop of sprawl and gated communities, billions spent on campaigns, a burgeoning prison industry with more than two million people incarcerated, a failed war on drugs, more than one hundred million eligible voters who do not vote, and states that cannot even process the votes of those who do.

Our two-party political system is engaged in an unfair restraint of democratic participation. It is a duopoly that has erected barriers to political engagement and is restricting the exercise of democracy in our country. Our laws do not countenance such an illegitimate concentration of power in the economy Do we hold our political and democratic values in lesser esteem?

Ralph Nader was the Green Party candidate for president in the 2000 election. Theresa Amato was the campaign manager of the national Nader 2000 campaign.

Notes

(1.) In the Harvard Journal on Legislation, Summer 1999, 36 (2), 451-478.

(2.) Washington Post editorial, Feb. 19, 2001, p. A32.