3

Are Third Parties a
Threat to Democracy?

December 23, 1997  I am sitting across from my cousin Hank at an Italian restaurant in San Francisco. Hank is a physicist on faculty at the University of California at Berkeley. Ours is a big family dinner-a birthday party for my sister-not a great scene for serious discussion about anything other than perhaps sports and politics. We opt for politics. I tell Hank that I am writing a book on third parties in America, specifically, the Natural Law Party. He is surprised and intrigued. He is also blunt. He does not believe in third parties. "Third parties are a threat to our democracy," he says. "I believe in a democracy where you have two strong political parties, each one representing positions clearly distinct from the other. Third parties confuse the issue."

Hank is digging a fork into his dinner salad as he says this, unaware, I am sure, of what is about to hit him. I have come to this meal fresh from six years on the campaign trail and an equally long time learning about the role third parties have played historically in America, the fundamental right of freedom of speech afforded them in the Constitution, the laws that have gradually usurped that right, and the battles waged past and present to reclaim what has been lost. I am about to download on dear cousin Hank a deluge of facts, figures, citations, and examples to convince him otherwise. Fortunately, he is ready to listen and, to his credit, he stays with me for the 90 minutes until the birthday cake been served and consumed.

This is what I say. I agree with Hank that in a winner-take-all system like ours, there may always be two, dominant political parties. There is a difference, however, between two dominant political parties, and two dominant political parties that are healthy, vigorous, independent, represent two clearly distinct viewpoints-and open to new ideas. We don't have that right now, I say. Hank nods in agreement. This is because the Republicans and Democrats exercise a virtual monopoly over the political process. The upside for them is they own the keys to the castle, they control the power. The downside for the country is that they have closed themselves off to the infusion of new ideas. They exist in isolation. With few exceptions, both parties are starting to look and sound much the same, like two sides of the same coin.

Hank is waiting for my punch line. I make the same point I make dozens of times every day to reporters. Traditionally, the role of third parties has been to inject new ideas into the political debate. Abolition of slavery, a woman's right to vote, and crucial child labor law reforms have all come not from the two parties in power, but from outside the mainstream, from strong third-party movements. Hank's eyes widen. I can see this comes as a bit of a surprise. I add that our democracy was most vital and attracted the largest voter turnout over 100 years ago when there were no laws restricting third party participation in the political process and, as a result, there were several vibrant smaller parties. Voter turnout was 80%. Since then, as new ideas and third parties have increasingly been squeezed out of the fold, voter participation has steadily declined until now less than 50% of eligible voters cast a ballot in the presidential elections and less than 40% vote in off-year elections.

So rather than confuse the issue, I say, third parties actually are a source of powerful new ideas that refocus the issues.

I look closely at Hank as I talk. He is family and I want to be invited to his house in the future, but I can see he's genuinely interested. He asks a question as I load up for another round.

Why don't people care as much about politics? he wants my opinion.

I say that people don't care because they've heard the same political rhetoric for so many years, and somehow these days it just lacks relevance, it lacks meaning, it lacks life. Substantive new ideas can't make it into the national debate because third parties are basically banned from the political process.

Hank asks for a specific example of ideas that don't make it into the public arena. I cite genetic engineering and, proving the point, Hank admits that he knows little about it. Billions of dollars from the biotech industry are being poured into technologies that fundamentally alter the genetic blueprint of all of the foods we eat, not only in America but throughout the world. Such foods, purely for the sake of argument, may or may not be safe-scientists are not at all in agreement. But the American people will never know if the foods they are eating have been genetically engineered. Such foods will not be labeled, according to the official policy of the United States Department of Agriculture. I ask Hank, might the altered content of the foods we eat be of some national consequence that merits more discussion? He nods yes. I say that only a third party, in this case, the Natural Law Party, brought this issue to the American people, not the Democrats or Republicans (who have received millions of dollars from the biotechs). But the Democrats and Republicans have written the ballot access and debate participation rules to keep such new ideas out. In 1998 and 2000, the Natural Law Party-along with the Reform, Libertarian, Green, and U.S. Taxpayer parties-will spend most of their time and resources just to get on the ballot. Little time will be left for serious campaigning. This is very dangerous and very debilitating to democracy.

Hank waves off generalizations. He challenges me for specifics: Give an example of a tough ballot access law. Florida. The number of signatures required for a new party to get on the ballot in Florida alone exceeds the signature requirements that a new party would have to collect if it wanted to get on the ballot in all the countries in Europe, as well as Canada, Australia, and New Zealand, combined. In fact, for each third-party candidate to get on the ballot for a statewide office, Florida requires 200,000 signatures per candidate. Oh yes. The Republican and Democratic candidates do not have to collect any signatures to get on the ballot in Florida.

Hank argues that such laws were enacted to keep too many new parties off the ballot. Actually, I tell him, such laws were first passed in the 1930s to keep out the Communist Party, and the laws were toughened again in the late 1960s after Alabama governor George Wallace received nearly 13% of the vote for president. The laws went through two more rounds of stiffening after independent-and moderate-presidential candidate John Anderson's strong showing in 1980 and Ross Perot's 20% vote count in 1992. The problem has never been too many parties or candidates on the ballot. (There are some states, such as Mississippi and Vermont, that have open laws for new parties, and neither state suffers from a glut of names on the ballot.) The problem has always been competition for the Republicans and Democrats. Sizeable voter turnouts in the past stole support from the two main parties. It scared them so much they changed the rules in state legislatures across the country. It may be true that George Wallace was an extremist who did not deserve to be president. But who makes that decision? In a democracy, that sacred choice should be left up to the voters. Who gave the Republicans and Democrats the authority to change the laws and basically relegate all third parties to the nether reaches of the political arena? You won't find it in the U.S. Constitution because it's not there. The answer is not a mystery. No one gave them the authority. The Republicans and Democrats just took it. The problem now in America is not the threat of third parties. The problem is that no new ideas can find their way into the national debate, no new party can make a dent in the political process.

America would have been a different country if today's laws were in place 140 years ago.

Abraham Lincoln Was a New Party Candidate -
He Certainly Wasn't Fringe

Fact: Abraham Lincoln is widely regarded as one of our greatest, if not the greatest, president in U.S. history.

Fact: Abraham Lincoln was the presidential candidate of a political party, the Republican Party, that was only six years old when Lincoln won the 1860 election.

Fact: If the Republican Party in 1854 had to face the same laws to get on the ballot that new parties face today, it's a safe bet that Abraham Lincoln would not have been president in 1860, and the nation and the world might look nothing like they do today.

I know this because now I am talking with Richard Winger, editor of Ballot Access News, and arguably the nation's leading authority on laws that allow-or more likely, prevent-new parties access to the ballot. We are in the living room of his home in the Marina district of San Francisco. Books on politics are stacked everywhere-on coffee tables, in book shelves, on the dining room and kitchen tables. Winger is a national treasure for third parties-a storehouse of information that can steer party leaders and their lawyers through an impossibly complicated web of arcane regulations, financial hoops, and logistical obstacles. Since 1965 Winger has immersed himself in researching ballot access regulations, mastering the study of legal precedents and absorbing the content of countless newspaper clippings about changes in ballot access laws that date back to the 1800s and early 1900s; records he digs up in the U.S. Library of Congress. Winger shows me his tiny office. More books and papers are strewn everywhere, a computer is on the desk. It is from here that he is changing the face of America's elections. By his own estimation, he has directly influenced the liberalization of ballot access laws in over half the states in the country. He has done this through letters, such as the one he wrote in 1994 to the Secretary of State of Kansas, in which he claimed that the deadline for submitting petition signatures was too early and subject to a legal action. The Secretary of State immediately asked the state legislature to improve the law, which it did. He has also testified before Congress and many state legislatures. But Winger's most far-reaching influence is felt through the counsel he gives leaders of third parties.

Winger says the story of the Republican Party is a prime illustration of how restrictive and stagnant our democratic process has become. The Republican Party was founded in July 1854, when there were no restrictions to third parties participating in the political process. Voters responded vigorously to the party's ideas, and on election day, just five months after its formation, the Republican Party won more races for governor and sent more representatives to Congress than any other political party. If the Republican Party had to start up today it is highly unlikely that the party could get off the ground as fast-if it all. More likely, I imagine, the party would merit but a passing mention in USA-Today's political roundup column. This is because today, new parties are buried in regulations.

I ask Winger to comment.

"Our great-great-grandfathers, if they were American voters, had a greater opportunity to change public policy with their votes than we do today," he says. "It is a paradox that as the proportion of Americans permitted to vote has increased over the past century, the power of those votes has diminished. The rights of voters to organize new political parties, and to vote for candidates of their choice, are weaker today than they were 75 years ago."

Winger says the golden age of our system may have been during the 1870s and 1880s, when there was high voter turnout at the polls (an average of more than 80%), an absence of gridlock, and a frequent exchange of power between the two major parties. During that same period, he says there were "many vigorous and powerful third parties," including the farmers parties, such as the Greenback Party, the Union Labor Party, and the Peoples' Party.

"These groups forced the two major political parties to pass significant anti-monopoly legislation, as well as important labor legislation," he says. "They also brought new voters into the process. The presence of viable alternatives beyond the two major parties kept voters involved in the democratic process."

What happened? I ask. Why don't we have more viable third parties? Winger says that Democratic and Republican state legislatures have passed laws that have made it exceedingly difficult for third parties to get on the ballot in many, if not most, states.

"There has been no grand conspiracy to change the laws all at once," Winger says. "They crept in slowly over time, they didn't emerge overnight."

He gives me a ballot access history lesson:

• Before 1888, there were no ballot access requirements.

• From 1888 to 1931, ballot access laws were generally unobtrusive.

• In 1924, only 50,000 signatures were required to place a new party's presidential candidate on the ballot in all 48 states-a figure that represented .15% of the number of people who voted in the prior election.

• During the 1930s, ballot access laws became far more restrictive, requiring new parties to gather more signatures and file for application earlier and earlier in the campaign year.

• It was not until the 1960s that compliance with ballot access laws became extremely difficult.

• Now, in 1998, if a new party wants to contest all the federal, state, and county partisan offices up for election, it will need to collect over 5 million valid signatures. By contrast, the Democratic and Republican parties will not need to submit any signatures to get themselves on the ballot, and their candidates would need to collect less than 20 percent of the third party totals to place themselves on the primary ballot. In fact, the U.S. now has the most discriminatory election laws of any democracy in the world. (See table on page xx.) Most democracies treat all parties the same in each election and have minimal ballot access requirements, if at all.

Winger sends me out the door into the brilliant Bay Area sunshine with this final message. "The fact remains that active and vigorous third parties play a vital role in maintaining the health of our two-party system. In order to keep our political system healthy, we must allow people the freedom to vote for the qualified candidate of their choice. Such freedom is not only essential to the health of our government, it is also our right as citizens of the United States."

Ballot Access Blues

When people ask me what I do with the Natural Law Party, I say that I write press releases, talk on the phone to reporters-and worry about ballot access. No matter what anyone else does in a third party-give stump speeches, raise money, file reports with the FEC, put up posters for events-during the heat of a campaign, everyone is always worrying about ballot access. It's a fact. But Kingsley Brooks is the one person in the Natural Law Party who has to do more than worry. As the chairman, he is responsible for actually doing something about it, for getting our hundreds of candidates on the ballot. It's a mammoth, almost military undertaking that requires conviction, persistence, thick-skin, the ability to pull money out of a hat, an easy demeanor, and laser-like focus. It's a task that should be dropped in no one person's lap.

For the 18 months leading up to the 1996 election, you could hardly see the paint on the walls in Brooks's office. He had maps, graphs, posters, and charts taped and tacked everywhere-state, congressional, district, and county maps covered with circles and arrows and dates and long lists of numbers of petition signatures that would be needed to get the party on the ballot in each state.

Now, it's February 1998 and Brooks is at it again. Every morning he wakes up to a barrage of ballot access problems-and it's going to be that way until September. When you see what he goes through-and what every other third party goes through-you know that we need to do more to revitalize our democracy than just stop illegal campaign contributions coming from Asia into the White House. We need to stop these outrageously unjust laws that block legitimate political voices from the political debate.

How tough is it for third parties? As Richard Winger said, in most states, Republicans and Democrats have written the laws that grant themselves automatic access to the ballot. On the other hand, in 1998, a new party must collect over 5 million valid signatures to run a full slate of candidates nationwide.

How tough is it? Those 5 million-plus valid signatures are spread out among 50 states. Each state has completely different rules, completely different procedures to get on the ballot, and completely different requirements for each office sought-U.S. President, U.S. Senate and House, State Assembly, etc.

How tough is it? Ralph Nader, with a strong base of national support, could get on the ballot in only 22 states as the presidential candidate of the Green Party in 1996.

So while Kingsley Brooks should be spending his time building the state parties, recruiting candidates, overseeing campaign itineraries, raising money, and keeping a vigilant watch over all of the campaign activities to be sure the election law rules are being followed to the letter, instead he spends 75% of his time and the Party's money on signature drives and looking for more money to pay for them.

Ballot access involves four steps: (1) Deciphering the requirements; (2) Meeting the requirements; (3) Preparing for the legal fight after you meet the requirements; and (4) Getting geared-up to repeat steps 1, 2, and 3 in the next election.

(1) Deciphering the requirements - To collect signatures you need a crash course in electionspeak-and each state, sometimes each county, has its own particular dialect. You better become fluent fast, or else it could cost you your place on the ballot. You will be speaking with county clerks and state officers to learn about the rules, and you don't want to lose anything in the translation.

The first big problem you will encounter comes in learning the proper meaning of key words such as "valid"-as in "five million valid signatures." What does the word "valid" mean? It depends on what state you're in when you ask. While some states have reasonable rules and only require that you be a registered voter in the state to sign a petition, far too many states have rules obviously rigged to make the job of collecting "valid" signatures next to impossible.

• In West Virginia, "valid" means that the signatures must be from registered voters whose signatures are determined by the county clerk to be identical to the signatures on the voter's original voter registration form (if it differs only in a middle initial, the signature is out). Voters must also swear neither to vote in the next primary election nor to sign any other petition, and they will be prosecuted under penalty of law if they do. Not surprisingly, only about one in three signatures are ever approved. To run a full slate of candidates, you're going to need a total of 28,345 valid signatures-that means you must collect nearly 90,000 to get on the ballot. Not only that, the people who are collecting your signatures-the petitioners-must live, vote, and collect signatures only in the district where the candidate lives, and must notify every potential signer that he or she will be violating the law if they sign the petition and then vote in the next primary election. Petitioners in West Virginia reported that a gun-toting deputy from the Secretary of State's office stood by as they collected signatures to make sure that they were collecting them properly. Some petitioners were actually jailed for petitioning incorrectly. Republicans and Democrats collect no signatures.

• In Texas, "valid" means that the signatures collected must be from registered voters whose legible signatures are accompanied by printed name, street address, county name, zip code, and Congressional District number, and who did not vote in the last primary election or sign any other petition, and who will be prosecuted under penalty of law if they did any of these things and then go ahead and sign your petition. And before anyone can sign the petition, you need to read each person a long paragraph that describes his or her liability if they do sign your petition. Your job is to find 43,963 Texans who meet that description, and you've only got ten weeks to do it. Oh, and don't forget to notarize your petitions. Republicans and Democrats collect no signatures.

• In New York, in 1996, "valid" meant that the signatures must be from registered voters whose legible signatures are accompanied by printed name, street address, county name, zip code, Congressional district number, and precinct and ward number. Off the top of your head, do you know your precinct and ward number? Maybe you do, but our experience is that most people don't. If you want all your candidates on the ballot, go find 608,981 who do.

• In Florida, "valid" means that the signatures must be from registered voters who live in the same district in which the candidate is running. Each voter must fill out a separate petition. For all your candidates, the total number of valid signatures-and separate petitions-required: 883,148. (That's a lot of pieces of paper.) Because of this there has been no third-party candidate for governor on the ballot in Florida since 1920. Republicans and Democrats collect no signatures.

(2) Meeting the requirements - I am going to confess something here. In my six years of working fulltime with the Natural Law Party I have never collected a single signature. It's true that I've had my excuses-I direct media campaigns for all our candidates. But that's not the real reason. The real reason is I just can't do it. I just can't park myself, clipboard in hand, in front of a harried woman as she's coming out of a supermarket carrying several bags of groceries, with two young children in tow, and say, "Excuse me, ma'am, would you please stop right there and listen to what I have to say? And then would you answer my questions about where you live, what political party you belong to, what Congressional district you're in, and whether you voted in the last primary? Oh, and please show me your driver's license. And you should also know that in some states if you vote in the next primary election after you sign my petition you could go to jail. Now then, how about signing my petition?"

Maybe I could do it once or twice, but 1000 times a day, for months on end? I could talk all day long to reporters in bad moods before I could do that to 1000 people.

Question: Is collecting ballot access petition signatures a fair or accurate way to measure voter interest?

Answer: No. It's actually a very effective way to bug the heck out of people who are busy. Besides, it's such a waste of time.

In theory, signature gathering is supposed to be a measure of widespread popular support. But, truth be told, it's a costly, time-consuming, world-class, migraine headache that just keeps new candidates and new ideas out of the political arena. Signature requirements can be so outlandishly high that few independent or third-party candidates or initiative sponsors could ever imagine mobilizing enough volunteers to do the whole job. So they hire people to do it for them. In fact, to our knowledge, every major petition drive for every initiative and candidate-and that includes those rare Republican and Democratic candidates who actually have to collect some signatures for themselves-is conducted in whole or in part by paid signature-gathering companies.

The bottom line is that third parties and independent candidates, usually with scarce resources, are forced to pay anywhere from $1 to $5 per signature-valid or invalid. In the few states where Republicans and Democrats have to collect signatures, the signature companies somehow get them to pay $5 to $12 each. Perhaps that's their just desserts. In every case, though, for third parties and major parties alike, as the deadline comes near, the price goes up.

The Natural Law Party was fortunate to have volunteers willing to collect signatures for next to nothing, and the party was also fortunate that professional signature gatherers liked our platform so much that they would often carry our petitions for well under the going rate. And I imagine this is true for some other third parties and independent candidates. But still, getting on the ballot comes down to money-lots of it. And that means that, basically, money decides what ideas you hear about in the political debate.

The irony of it all is that most Americans sign a petition not so much because they support a particular candidate or issue, but because they like the idea of more choices on the ballot. You don't need millions of signatures to prove that.

An argument can be made for setting basic ballot access signature requirements that are the same for all candidates-Republicans and Democrats as well as third-parties and independents. Many bills have been introduced in Congress that move in that direction, including Rep. Ron Paul's (R-Texas) bill, the Voter Freedom Act of 1997. Unfortunately, such a bill, which has been languishing on Capitol Hill in one form or another for over a decade, has never made it out of committee, much less been voted on.

Once you have your volunteer and for-pay petitioners lined up-once you know how many troops you have-it's still only the beginning. Now you have to strategize. You have to figure out what candidates to try to get on the ballot. It's also time to be a realist. You can forget about running a full national slate of candidates as the Republicans and Democrats do. There's no way. Signature requirements have grown so outrageous in the past 70 years that no third party has even come close to running a full slate. The fact is, ballot access laws are so skewed in favor of the two main parties that third parties are forced to severely limit their options in order to get at least a few candidates on the ballot.

For example, in Illinois the Natural Law Party had nearly one hundred people-doctors, business people, teachers, retired people, etc.-who wanted to run for office in 1996. But here's the brick wall they ran up against: In Illinois-the land of Lincoln-there is no procedure for a new party to get on the ballot. Instead, candidates would have to run as independents and all together collect a total of 827,055 valid signatures for a full slate. (But as a rule, you'll need to collect twice the required number of signatures to survive any state's validity check.) Let's say you're the third-party leader in Illinois supporting these candidates and you have to decide what to do. The first 25,000 valid signatures will put a presidential candidate on the ballot. Or it will put two Congressional candidates on the ballot. Or eight candidates for state assembly. It's a tough decision because, while a presidential candidate will bring you the most media attention, local candidates can get closer to the people and are better able to address local concerns. The result: Voters in Illinois are denied the opportunity to hear ideas from more new voices.

Kingsley Brooks has to make these kinds of decisions every day, for all 50 states, for months and months. And nothing is set in stone. If Texas is going slowly, then he has to send more people there. If his petitioners lose several thousand signatures in North Carolina (it happens), he's got to work like crazy to catch up. Utah is a breeze, so he can send two extra petitioners to West Virginia (if they meet the state's requirements.) If five petitioners quit in the morning in San Diego-a common occurrence for every signature drive everywhere (and who can blame them?)-Brooks has to be sure his local organizers are training new petitioners in the afternoon. In the midst of all this madness, when a relatively simple decision comes along, such as in Kansas-does he go for putting the whole party on the ballot with 16,418 signatures (due date: June 1) or just the presidential candidate with 5,000 signatures (due date: August 5)-it can feel like the proverbial straw that broke the camel's back...

(3) Preparing for the legal fight after you meet the requirements - Once you've turned in your valid signatures exactly as specified, don't expect to be greeted by a welcome wagon. Count on more resistance. Some examples: (The names of the states have been left out because of concern that the states might make it even more difficult for the Natural Law Party-and other third parties-to get on the ballot in the future. The concern may be real or imagined, but why take the chance?)

• The general counsel for the secretary of state in one state told David Shapiro, the Natural Law Party's national ballot access coordinator, that her boss was not enthusiastic about having another opponent run against him in the November election and she would need the Party to provide her with "a very solid argument" to convince her boss to allow the Natural Law Party on the ballot.

• The secretary of state in a southern state told Patricia Cox, the party's regional coordinator in that area, "We don't care what the rules say, we're not putting you on the ballot."

• The ballot access rules in another state require that a new party fulfill its requirements by motivating people to register at just one of four locations in the state. Many people who tried to register with third parties were told by the county clerks: "We only register Republicans and Democrats in this state." The voters complained to the secretary of state, and were told, "We can't control every clerk. They're free to do what they want."

• One attorney general told third-party organizers: "We don't approve of what you're doing. We don't want you here, and we're going to do everything we can to keep you off the ballot. And if we had our way, we wouldn't allow even Republicans on the ballot."

With rugged determination and a thick skin you can try to overcome such barriers. When that doesn't work, you go to court.

• In South Carolina, the state refused to put the Natural Law Party's candidates on the ballot even though the Party followed every written state rule to the letter. The Party filed suit. Fifteen minutes before the court hearing was scheduled to begin, the state agreed to put Natural Law Party's candidates on the ballot-and thus avoid embarrassment in court.

• In Georgia, the Natural Law Party collected 62,000 signatures and submitted them before the ballot access deadline in early July 1996. However, the Party didn't hear back from the state until September 3, when the secretary of state notified the Natural Law Party and the U.S. Taxpayer Party that neither party's candidates would be allowed on the ballot. The state used an obscure court ruling to invalidate the notarized signatures. The "logic" goes something like this: If a notary collects any signatures for a party, then the notary must be considered biased and therefore all petitions that were notarized by that notary are invalid. No exceptions. (There is, by the way, a constitutional right to petition that is being ignored here.) It turns out that both the Natural Law Party and the U.S. Taxpayer Party used the same three notaries for most of their signatures. Those notaries innocently collected some signatures themselves. No one in the state government told either party about this rule nor is it in the state guidelines for getting on the ballot. The case went to court but the judge refused to hear the case. It's an election-law speed trap that Georgia used in 1996 to keep new parties off the ballot. The Natural Law Party got caught in that one.

• In Alabama, in the middle of the Natural Law Party's ballot access drive, the required number of signatures was increased from 12,000 to 36,000, effectively barring the Party from the ballot. The move was clearly illegal, and was done despite considerable protest, including public hearings at which third party leaders condemned the action, editorials in the state's major newspapers that opposed the action, and letters from citizens that flooded into local newspapers and government offices. The Natural Law Party prepared a lawsuit. On the day the lawyers were to file their suit in Montgomery, the secretary of state's office asked the Natural Law Party to give the state a day to reconsider. The next day the Natural Law Party was on the ballot.

• In Texas, the Natural Law Party collected 75,000 signatures. The state accepted a challenge to our petition. (If just one person in Texas challenges a new party's petitions, the state will then evaluate all of the party's signatures.) The state claimed it studied the petitions and concluded that most Natural Law Party signatures were invalid. But the Natural Law Party had copies of voter registration records which made it clear that most signatures were, in fact, valid. The Natural Law Party headed for court. Just before the case went to trial, the state admitted its records were outdated and that they were unsure whether our signatures were, after all, invalid. The Natural Law Party was put on the ballot.

Yes, there may be victories but consider this sobering thought. Even when a third party wins, it loses. In both Alabama and Texas, the Natural Law Party had to pay its own legal expenses, and it lost precious time and resources that should have gone into getting its message out to voters. And yet, the state suffered no penalties whatsoever. In the next election the state can turn around and put the Natural Law Party or any other party through the same costly rigamarole without any repercussions.

(4) Getting geared-up to repeat steps 1, 2, and 3 in the next election. Once you get on the ballot, don't celebrate too long, because the work is just starting. Now you have to start fighting for your right to be heard-to participate in the public debates and gain access to the media. But even more distressing, you have to start gearing up for the next election's ballot drives. You have to do the whole thing, all over again, every two years.

"It's a vicious cycle that just keeps going-and it will keep going-as long as voters continue to elect Republicans and Democrats into office," Brooks says. "The U.S. government fights for democratic reforms in every other country-it's time the government fights for them here as well."

Taking on Institutions that Take on Third Parties

If you are a third-party or independent candidate and you feel that you have been wronged by the Republicans and Democrats, where do you run for help? Nowhere safe. Unfortunately, it's a bit like one of those old Twilight Zone television shows where everywhere the guy runs for help to get away from the weird people, all he meets are weird people. Like that, everywhere a frustrated third party looks for help to get away from the Republicans or Democrats, all it finds are the Republicans and Democrats.

For example:

• Federal Communications Commission - This is the federal government's watchdog organization to oversee the public airwaves. It's supposed to ensure that all qualified political voices-Republicans and Democrats as well as third-party and independent candidates-have equal access to this most important channel of communication. The Problem- Members of the FCC have their jobs courtesy of the Republicans and Democrats. Members are appointed by the President and confirmed by the Senate. Maybe this explains why, in the past 60 years, there has been a steady erosion of third-party access to the airwaves. (And you wonder why you don't hear more from third parties-or even know they exist.)

• Federal Election Commission - This is the watchdog organization charged with monitoring campaign spending and punishing offenders. The FEC also sets the rules for sponsoring political debates. The Problem-the FEC is comprised of three Republicans and three Democrats. Maybe that explains why the FEC looked the other way when the Commission on Presidential Debates denied two legally qualified third-party candidates, Ross Perot and John Hagelin, their rightful place on the stage in the 1996 presidential debates.

• The Courts - Judges hear cases that challenge laws that keep third parties and independent candidates off the ballot and out of debates. The Problem-Judges themselves are appointed by Democrats or Republicans, and many judges are wary of rewriting the system that has been put in place by the two main parties.

So how do you bring about reform? It's very tough, says Mike Tompkins, the Natural Law Party's vice presidential candidate in 1996, who has witnessed his fair share of court hearings. "America's system of checks and balances only works when there's healthy debate. But that's not the case with campaign finance reform, nor is it the case with opening up the system to new parties. In both cases, the two parties are on the same side of the issue: They don't want the reforms, they don't want to change."

So where does a third party look to redress its claims? Good luck. The American system is based on the principle that no interest should judge its own case. Yet there is no truly independent agency in place to police Republican and Democratic campaign finance irregularities and to review laws they make that unfairly keep out third parties.

But third parties keep appealing their case. During the 1996 election, I sat in on several Natural Law Party attempts to open the doors to national debate for all legitimate third party voices. Here are a few instances that give you an idea of what third parties are up against.

Going Head-to-Head with the FCC

June 25, 1996, 10:00 a.m. The scene seems right out of a John Grisham novel. A high level government commission is holding a public hearing to determine the fate of a controversial issue. Surrounded by a phalanx of media-types, television lights and cameras, an august panel of politicians, lobbyists, network executives, and Washington insiders argue in favor of the plan.

Only one man dissents. Yes, on the surface the plan appears to be a good one, the man agrees, but on another, deeper level the fallout will be something else entirely-something very insidious.

Commission members listen to the man politely, almost deferentially, it seems. Maybe too politely, too deferentially.

I'm sitting two rows back in the press section of a room at the Federal Communications Building on M street in Washington, D.C. The FCC is holding an en banc hearing to decide whether or not you will hear Bill Clinton and Bob Dole speak for free on commercial and public television during the final weeks of the 1996 campaign-a gift, free-of-charge, from the networks to the Clinton and Dole campaigns, and to the American people. The offer is being spearheaded by Rupert Murdoch, chairman of Fox television, who is concerned that there may be too much money being spent in the presidential campaigns, a fact, he worries, that may be turning off voters. He wants to let the candidates speak for free on his network, a few minutes each night, or at least once a week. Give the message straight to the American people. No pesky interviewers, no big bucks shelled out to pay for advertising time. PBS has also joined the Murdoch bandwagon, and the other networks are watching closely to see how the whole thing plays out.

The problem for Murdoch, though, is he can't just give away the air time for free. He has to get permission from the Federal Communications Commission. Otherwise it would, rightfully, be considered a sizeable campaign contribution to the Clinton and Dole camps.

The problem for the FCC is that Fox and the other networks want to give the free time only to Clinton and Dole and cut out everyone else. For that, Fox is asking the FCC for an exemption of its 60-year-old "equal opportunity provision" that guarantees free air time to any presidential candidate on the ballot in 10 states-a provision that would include Ross Perot, John Hagelin, and two or three other candidates. Fox isn't willing to abide by that provision. The network claims that if it is forced to open up the offer to any other candidates it will withdraw the offer.

That's why the FCC is holding a public hearing today. Commissioners want to hear both sides of the issues before making the decision. Twenty panelists are invited to testify in support of the proposal; only one is invited who opposes it. Those who praise it include Murdoch, U.S. Senator Bill Bradley (D-New Jersey, now retired), Senator John McCain (R-Arizona), Frank Farenkhopf (chairman of the Republican National Committee), and Frank Manet (former chairman of the Democratic National Committee). John Hagelin is the one person invited who dissents.

Hagelin is given three minutes to speak. He acknowledges the spirit of the network offer but he believes strongly that the FCC must uphold the law. It must protect the rights of the American people to have freedom of choice by ensuring that all legitimate parties have the opportunity to present their message to voters. He tells the FCC that the yearning for third party ideas is greater than ever.

"Polls show that 85% of the American people do not believe that the Republicans or the Democrats have the answer to our nation's problems, and a majority favor a third party alternative," he says. "The democratic process stagnates when it is denied third party ideas. According to many scholars, 90% of the key ideas that have shaped our democracy came from third parties."

Hagelin says that objective criteria must be used to determine which candidates receive access to the airwaves.

"The criterion set by Congress requires a candidate to be on the ballot in 10 states. If the FCC wants to further restrict access, then increase the number of states to 20, 30, or even 40. Or, use the criteria recently suggested by the Federal Elections Commission for the presidential debates, which included ballot access and federal matching funds. But party affiliation, standings in the polls, or subjective assessments made behind closed doors-these must not be the criteria," Hagelin says.

In comments directed toward network executives and leaders of the Commission on Presidential Debates, Hagelin says the decision as to who merits air time must not be left in their hands.

"Networks are for-profit entities with their own vested interests. Networks should not be left to determine what ideas should be heard and what ideas should not be heard. The decision about air time should also not be in the hands of the Presidential Debates Commission. The Debates Commission is not a government agency, but a private committee composed entirely of former Democratic and Republican party chairmen.

"Americans are so turned off to politics that our democracy is in crisis. We now have the lowest voter turnout of any democracy in the world. Many Americans feel that our democracy has been usurped by two parties that are out of ideas, and no longer represent the people. To restrict access to the airwaves to Bill Clinton and Bob Dole will simply force-feed Americans more of what they already don't want. Bring Americans back into the political process. Set objective criteria that will open the door to legitimate third parties," Hagelin says.

Three months after the hearing, the FCC announces that Hagelin's request has been denied and grants Fox and the other networks an exemption. But the matter is far from dead. As this book goes to press, Natural Law Party lawyers are preparing suits intended to restore equal opportunity rights to legitimate third party and independent candidates.

Suing the Commission on Presidential Debates

October 3, 1996, 9:00 a.m. I'm sitting in the second row, on a hard wooden bench, in the Federal District Court Building in Washington, D.C., waiting to hear the fate of the political aspirations of Ross Perot and John Hagelin this year. Three judges will decide whether or not Perot and Hagelin will join Bill Clinton and Bob Dole in the two nationally-televised presidential debates. The first debate is scheduled to be held in three days.

I'm jammed in next to some lawyer-types who are scratching notes to themselves in spiral binders. To my left, across the aisle, I see familiar faces-reporters from the New York Times, Washington Post, USA-Today, ABC, NBC, CBS, and CNN. These are people I have been talking to for months hoping to get them to cover the Natural Law Party. Finally, they are here, for this. All of us are awaiting the arrival of Judge Silberman, Judge Randolph, and Judge Rogers-justices from the United States Court of Appeals for the District of Columbia Circuit Court.

The stakes are high. You don't get this media turnout for nothing.

The Commission on Presidential Debates (CPD) has already said no to Perot and Hagelin. The Commission claims that the two candidates do not have a "reasonable chance of winning the election," and therefore will not be included in the forums. The Commission says this despite the fact that the two men have actually met the difficult, clearly defined, pre-established objective criteria for participation proposed by the Federal Elections Commission.

I marvel at the audacity of the CPD. First, it claims to be an independent, nonpartisan organization even though it is headed by the former chairman of the Republican Party and the former chairman of the Democratic Party. (The Commission stakes its claim to a nonpartisan status so that it can receive generous tax deductible donations from special interests, such as the Phillip Morris Tobacco Co., to put on the debates.) And second, I marvel at the Commission's audacity to exclude Ross Perot from the '96 debates, even though he received close to 20 million votes in the '92 election. He's not a serious candidate? Twenty million people is a lot of people. Love him or loath him, do you want the former leaders of the Republican and Democratic parties to decide for you whose ideas are worth listening to?

I've heard the projected downside to opening up the debates to more candidates. It will crowd the platform and keep the major party candidates from a serious discussion of the issues. But the other side of the argument makes more sense. We're only talking about setting up two more chairs on the stage, not 10 or 100 as some detractors like to disinform us. Besides, during the Republican primaries, there were televised debates with as many as eight candidates. Those debates were far livelier, and the candidates were far more candid and forthcoming than in those canned affairs where just two candidates rattle on in their standard campaign-speak. The argument also goes that the debates should be for the two candidates with a realistic chance of winning. I hate to break the news, but did Bob Dole have a realistic chance of winning? Did Michael Dukakis? Barry Goldwater? Walter Mondale? Ideas are primary in a democracy, and the Republicans and Democrats do not have a monopoly on ideas.

So why are lawyers for Hagelin and Perot here in court? The following time line just scratches the surface of the obstacles faced by legitimate third parties to get their presidential candidates into the debates-but it gives you an idea.

• February 8, 1994 - After years of fact-finding and research, staff members at the Federal Elections Commission propose to FEC commissioners new regulations that would guarantee equal opportunity for all qualified federal candidates to participate in debates. The report states that any sponsoring agency for a presidential debate would have to adhere to pre-established objective criteria:

(1) the presidential candidate satisfies the eligibility requirements of the Constitution, including being at least 35-years-old and a native citizen;

(2) the presidential candidate is on the ballot in enough states to have a mathematical chance of obtaining an electoral college majority; and

(3) the presidential candidate is eligible to receive matching funds from the Federal Elections Commission.

A major plus for third parties is that the report also explicitly states that which political party the candidate belongs to as well as all subjective criteria, such as chances of winning, and standings in the polls, are not acceptable.

• November 1995 - The Democratic- and Republican-run Commission on Presidential Debates publishes its criteria for including candidates in the 1996 presidential debates. Republicans and Democrats get automatic invitations while other candidates will be evaluated using three objective criteria (similar to those cited above) along with a long list of subjective criteria.

• February 1996 - The FEC commissioners reject their own staff's proposal and, instead, decide to allow the sponsoring agency-in this case, the Commission on Presidential Debates-to come up with its own pre-established objective criteria. However, this new ruling makes the CPD's subjective criteria illegal.

• September 9, 1996 - The Natural Law Party faxes a letter to the executive director of the Commission on Presidential Debates, Janet Evans, informing her that John Hagelin has met all of the Commission's objective criteria.

• September 13, 1996-Three days before the Commission will formerly announce its decision who is in the debates, the word leaks out in Washington, D.C., that Hagelin is definitely out, Perot is probably out. Hagelin files three pre-emptive suits to stop the Commission from applying subjective criteria. The suits are filed with

1. The IRS to revoke the Debate Commission's 501(c)(3) nonprofit status for acting in a partisan manner.

2. The FEC over the Debates Commission's use of discriminatory subjective criteria.

3. The Federal District Court in Washington as an injunction to stop the Debates Commission from using subjective criteria.

• September 16, 1996 - The Debates Commission gives its official "no" to Perot and Hagelin. Reform Party lawyers are on the phone immediately with Natural Law Party lawyers to join in the lawsuits.

• September 27, 1996 - John Hagelin and Ross Perot's case goes to the Federal District Court in the District of Columbia. The presiding judge, Judge Thomas Hogan, likens the importance of the case to the Pentagon Papers in its potential to affect the history of America. Lawyers for the Debates Commission argues that subjective criteria are a fair and legitimate means to decide participation. Lawyers for Hagelin and Perot argue that such criteria are unfair and discriminatory and are designed to permanently block legitimate third parties from the national debate. Judge Hogan considers the case for a day and then refuses to slap an injunction on the Debates Commission. He says that it's not his decision to make-his hands are tied by the Federal Election Campaign Act, passed by Congress, that requires the FEC to study any election complaint for a minimum of 120 days before it can make a judgement. The Act states that the courts can intervene only after all administrative review processes have been exhausted. Hello? The election is less than 40 days away. Judge Hogan's decision means that, by law, there will be no decision before the election. Who writes such laws? Republicans and Democrats.

• September 28, 1996 - Hagelin's and Perot's lawyers request an immediate appeal, but scheduling difficulties postpone the hearing several days. The issue stays hot in the press, however, and Hagelin gives more interviews over the next three-week period than he has done for months up to that point. He's on the front page of The Washington Post. On NPR's "Talk of the Nation," Hagelin debates Paul Kirk, chairman of the Debates Commission and former head of the Democratic National Committee. Not one person calls in to support the Commission's decision. In fact, one caller tells Kirk, "You could wait for the entire two hours of this show and no one will call to say what you did was right." On CNN's "Burden of Proof," Hagelin debates the former head of the FEC and a lawyer for Bob Dole's campaign. The mood of the people is the same: Open up the debates. We want to hear new ideas, we deserve to hear new ideas, we have the right to hear new ideas.

• October 3, 1996 - John Hagelin and Ross Perot's case goes to the U.S. Court of Appeals in Washington-and that's where I am right now. The room is packed. No television cameras are allowed in, so artists for networks, sitting across the aisle to my left, will transmit the mood of the proceedings in colored chalk.

Thomas Newmark, a partner in the St. Louis law firm of Gallup, Johnson, and Newman, is the lead counsel for Hagelin. He owns this case with a passion. He opens his remarks by reminding the judges that both Hagelin and Perot have met the Commission on Presidential Debates pre-established objective criteria to appear in the debates. He makes the point that such ballot access criteria is a very formidable requirement for a third party and shows considerable popular support.

"At no time in the history of the United States have more than three third-party candidates met that daunting requirement. It sets the bar very high," he says.

Newmark wants the judges to be bold, to make a strong statement in support of democracy, to break the grip of the two-parties.

"In all respect, Your Honors, if not now, then when? We have the debates in just a few days. And if we are forced to exhaust administrative remedies that will take at least 120 days, and that cannot give us relief, then the American people are the losers."

I have sat in on many court battles over third-party access to the election process. These judges seem informed and ask penetrating questions. But in the end, it appears that Newmark asks too much in Washington's politically-charged climate. The judges, too, refuse to circumvent the FEC's administrative review process. They, too, deny Hagelin and Perot any form of justice. I read their decision, which is released to the media a day later, while standing in an empty hallway outside of the press offices at the U.S. District Court Building. And I have to keep reminding myself that this is the United States of America, the greatest democracy on earth, not some little mock-democratic country, where laws are passed conveniently to serve the lawmakers, not the people.

It turns out, however, to be a hollow victory for the winners. The debates go on with just Clinton and Dole and receive the lowest Nielsen ratings of any debate since 1976. In the San Diego debate, one woman in the audience asks Dole, "Where are the third parties? Where is the Reform Party, the Natural Law Party, the Green Party?" Dole's answer is vague, something about being willing to debate anyone at any time.

For Hagelin, the experience proves to be a victory of another sort. He and his cause grab national headlines, and that helps put the Natural Law Party on the map. Polls show that nearly 70% of voters want the debates opened up to new voices. People don't like being told who they can hear and what ideas they can be exposed to.

And like the FCC decision barring third party presidential candidates from access to the public airwaves, the issue over participation in the presidential debates is far from over. Hagelin and Perot say they are prepared to keep fighting until the FEC alters its policy and mandates that debates include all legitimate candidates who meet the pre-established objective criteria.

Epilogue: Eighteen months after the three judges funneled John Hagelin and Ross Perot's complaint to the FEC's four-month administrative review process, on March 11, 1998, the FEC decided in favor of the Commission on Presidential Debates. The Natural Law Party is now appealing this decision. And regarding Hagelin's suit with the Internal Revenue Service, the IRS has told the Natural Law Party that it does not discuss any pending case. Eighteen months later, still no decision.

Third Parties Fight Back

November 7, 5:00 a.m. Roll the tape to four days after the 1996 election. My muscles and bones ache. It's been a 20-month sprint from the start of the Natural Law Party's first ballot drive in San Diego, California, to the celebration party on election night held at the Mayflower Hotel in Washington, D.C. The telephone jars me out of a deep slumber. It's John Moore, the Natural Law Party's director of ballot and media access. He's calling from Vienna, Austria, and he wants to tell me some good news. He's excited and I'm disoriented. What's he doing in Europe-and how did he get there so fast?

John Moore is a boon for America's third parties. He has organized over 30 court cases and other legal fights to gain access to the ballot and candidate debates for third-party and independent candidate since 1992. He was also the driving force behind the lawsuit against the Commission on Presidential Debates on behalf of all third parties. Like all of us, he has been frustrated by the lack of response from government authorities to third-party election and campaign law complaints. So he's in Europe, taking the case to the world court of public opinion.

Moore is leading a delegation representing 33 nongovernmental organizations from 27 countries, including the Nonpartisan Committee for Political Debates, which itself represents the Natural Law Party, Reform Party, Libertarian Party, Green Party, and U.S. Taxpayer Party. He is in Vienna to speak at the review meeting of the Organization for Security and Co-operation in Europe (OSCE). The OSCE grew out of the Helsinki accords that began in the 1970s. Once every two years, the OSCE holds a Heads of State Summit with leaders from 55 nations. One month before each Summit, the OSCE also hosts a review meeting attended by ambassadors and delegates from those 55 nations, to evaluate human rights conditions throughout the world, and to prepare a resolution for the heads of state to sign. This year that review meeting is in Vienna.

One of the key missions of the OSCE is to promote and ensure fair and open elections throughout the world. In fact, in 1990, in Copenhagen, 50-member nations signed the Document of the Copenhagen Meeting on Human Rights, pledging themselves to "respect the right of citizens to seek political or public office, without discrimination," and to '"respect the right of individuals, and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law."

The U.S. signed that document, continuing its long tradition of carrying the torch of democracy throughout the world. One purpose of the OSCE summit will be to consider any violations of the Copenhagen agreement in any country in the world. At these meetings, the U.S. is usually the chief finger-pointer. This time, however, the U.S. will be on the receiving end.

John Moore is there to talk about unjust campaign and election laws in the U.S. that clearly violate the Copenhagen Accords. He is invited to make his case to ambassadors and delegates in the grand assembly hall at the Hofburg Palace, headquarters of the OSCE. He distributes 30 pages of documentation, irrefutable evidence of third-party claims.

"The United States enforces fair elections on all the other countries, but at home it has the most discriminatory election practices of any democracy," Moore says. "The U.S. has two sets of rules: one, fair and equal opportunity for Republicans and Democrats, with automatic access to the ballot, the media, and the debates. And two, rules that present huge obstacles to prevent new parties and independent candidates from participating in the election process. This is in complete violation of the very accords that the United States in forcing on the rest of the world."

The hall is silent. Everyone listens carefully.

"While America's once model democracy of openness and fairness has faded, most democracies in the world still have consistent ballot access requirements for every party and candidate in each election. And most countries, including Russia, give all qualified candidates equal air time and include them in all televised debates.

"Every year, the U.S. State Department compiles a detailed report on human rights violations for every country in the world, but it is forbidden from evaluating democratic conditions at home. If the U.S. is to be a world leader, it must at least uphold the same democratic principles that it insists other countries follow. Discriminatory election practices must be ended immediately. Americans and the world community must no longer tolerate bad politics."

The next day, U.S. Senator Timothy Worth (D-CO), who is representing the Clinton Administration at the meeting, shows up to proclaim America's commitment to open and fair democracy in the U.S. and throughout the world. The staff director from the FEC, John Surina, shows up to rebut Moore's testimony and defend U.S. election laws. He agrees that America's election problems are large, but says that although there are many problems, it's not the fault of the federal government, it's the fault of the 50 states.

Moore is given a chance to respond the next day. He expresses his appreciation to Sen. Worth for voicing America's commitment to open, free, and fair elections, and he says he looks forward to the State Department's annual report evaluating human rights conditions in every country in the world-especially the United States. Moore then expresses surprise over the FEC's premise that the responsibility for electing the president of the United States and the entire federal government is not the responsibility of the U.S. federal government. He asks, "Was the U.S. delegation suggesting that the United States withdraw its membership from the OSCE and have it replaced by 50 states so that they could come and accept responsibility for election law violations?"

John Moore has a high profile role at the OSCE meetings. In addition to 45 minutes of testimony, he also meets with 21 delegations and speaks at five international news conferences.

"What's amazing is that no one knows the extent of our unfair election laws-not U.S. State Department representatives, not members of the Helsinki Commission, and certainly not delegates from the other nations," he says.

Moore found great receptivity, but he also ran head-on into political reality. "More than one ambassador told me, 'There's no way we will ever bring sanctions against the U.S.-or even speak out about these violations-because we are afraid of retaliation.'"

Bringing the Battle to the Home Courts

December 14, 1997, 2:00 p.m. It's a year later, John Moore is at it again. This time, he's sitting at a long oval conference table in a meeting room at the Sheraton Hotel in Washington, D.C., surrounded by 30 people-some of America's hardest working and most influential experts on election reform.

The meeting has been called to establish the "Fair Elections Commission"-a new "FEC"-a nonpartisan, nonprofit organization dedicated to working for fair and open elections in America. Moore is chairman of the Commission. Also present are Mike Tompkins and Kingsley Brooks of the Natural Law Party; leaders of the Reform, Libertarian, and Green parties; active Republicans and Democrats; and independent political leaders such as John Anderson, candidate for president in 1980; Rob Ritchie, executive director of the Center for Voting and Democracy; Nancy Ross, a long-time Washington lobbyist for campaign reform; Ernie Robson, another Washington lobbyist who worked on FCC issues; Bill Warner, a D.C. attorney who has represented Democrats in court against the FEC; and Richard Winger.

Moore calls this an "historic moment" when representatives of all political parties will move together for a common cause: to revive the American spirit and open the marketplace of ideas once again.

In his inaugural talk, Moore says that decisions are being made that are heavily influenced by special interests. "Only by eliminating the undue influence of money in our elections and opening up the ballot and the public airwaves to new ideas can the public interest be served. Because the way it is today, the whole campaign system has just legalized bribery.

"Een with the best intentions, over the course of time, a society can be found drifting from its high democratic ideals," Moore says. "Sometimes it's necessary to step back and take a fresh look at the direction we may be going. At this moment, who is guarding the public good? America is adrift, and Congress, the Justice Department, and the Courts must be held responsible. They have failed to protect our democracy."

Moore says that the first duty of the new commission will be to offer "that independent, nonpartisan mechanism to ensure that the will of the people is expressed through the election process.

"We will immediately begin an integrated campaign to educate elected leaders, the public, and the media about the problems of current election and campaign laws, and we will organize whatever legal action necessary in order to correct these problems, including the following: (1) massive legal action to eliminate discriminatory ballot access laws; (2) filing antitrust violations against the Republican and Democratic parties; (3) challenging the Federal Communications Commission for misuse of the public airwaves in not providing equal access to all parties and all qualified candidates; and (4) challenging, and eventually replacing, the Federal Election Commission for not upholding fair election practices in America.

"Together, we will restore the high standards of democracy that our nation's founders envisioned," Moore says. "And together, we will revitalize America's political process to ensure that government is serving all the people."