How did that last election work for you?
Would you like America to go through it again?
That is what will certainly happen if the largest voting bloc - composed of those who reject both parties - is once more denied a voice.
The good news is that, on Jan. 5, two weeks before the inauguration, a federal judge will hold a hearing on a lawsuit filed against the Federal Election Commission (FEC). That suit, Level the Playing Field, et al. v. FEC, filed back in the summer of 2015, focuses on the behavior of the Commission on Presidential Debates (CPD), a non-profit institution that acts as gatekeeper for the final fall debates. It's no secret that only the candidates who participate in those debates can be elected President of the United States.
The CPD board is dominated by stalwarts of the two dominant parties and is co-chaired by the former chairman of the Republican National Committee, Frank Fahrenkopf.
Suit Charges Debate Commission Violates Election Law
The suit was filed by Level the Playing the Field, a non-profit election reform organization, joined by the Green Party and the Libertarian Party. It claims that:
- The Commission on Presidential Debates violates FEC regulations that require it to be nonpartisan to use "objective criteria" to determine who gets into the debates. (You may have noticed that during the 2016 presidential debates, at least two moderators called the CPD "bipartisan." The moderators can be excused the error. The CPD certainly acts bipartisan, rather than nonpartisan.)
- The CPD's use of millions of dollars of corporate money to provide free televised campaign appearances to the Democratic and Republican presidential and vice presidential candidates violates the Federal Election Campaign Act of 1971 by making illegal corporate contributions to political candidates, by making illegal corporate campaign expenditures, by accepting illegal corporate campaign contributions, and by failing to disclose its contributions and expenditures.
'The Two Most Disliked Candidates in History'
Let's recap the election just past to understand why this lawsuit could change the entire election landscape for the better...
The two parties managed to select the two most disliked candidates in the history of modern polling. In an NBC News/Wall Street Journal poll that ended the weekend before the election, Donald Trump was viewed favorably by only 33% of likely voters and unfavorably by 59%. Hillary Clinton's favorable were 35%, unfavorable 53%.
In other words, the Democrats and Republicans each selected candidates that were liked by about one-third of the electorate and disliked by half. Combined unfavorable: 111%.
This should hardly come as a surprise. The most recent Pew survey on the subject found that 50% of Americans view the Democrats unfavorably and 62% view the Republicans unfavorably.
In addition, both parties choose their nominees in a way that gives exceptional decision-making power to the extremes. The selected nominees then run for president by ignoring the center and concentrating on the bases of their parties. That dynamic would change if a third candidate, a popular independent, could compete in a viable manner for votes.
How to Change the System
But no such competition can occur without changes to the current system, which enshrines the two parties. The system gives the Democrats and Republicans a huge advantage over independents through fund-raising limits, and the fact that states (with two small exceptions) give all their electoral votes to whoever wins a plurality discourages voters from backing independents. The fear by voters is that their ballots will be "wasted," and they'll help elect the candidate they least want.
These issues - financing and plurality voting - need addressing, and Maine has taken an important step on the latter issue by approving rank-choice voting. But the most urgent reform is one that be accomplished right now: opening up the presidential debates.
The Historic Lawsuit
This is a historically significant lawsuit with an excellent chance of winning. Arguing on behalf of Level the Playing Field is Alexandra Shapiro, a star litigator who is a former federal prosecutor and Supreme Court clerk. She has won some high-profile cases, including the landmark Newman insider trading case and the Ernst & Young $1 billion tax shelter case.
The lawsuit followed a complaint and a petition for rulemaking at the FEC that generated supporting comments from 1,251 individuals and organizations urging the FEC to ensure a debate system that is open to a third participant (the only opposing comment came from the CPD itself). The suit throws a spotlight on the Commission on Presidential Debates, run by the two major parties for three decades to perpetuate their duopoly. The CPD is unaccountable, unelected, and impervious to reform - as LPF and a group of 50 distinguished signatories to a letter headlined "Change the Rule" discovered.
In the wake of the presidential election, we have heard calls for new parties, new caucuses, new movements to bring America back to its senses or its center. Those sentiments are understandable. But a new party - or a serious candidate for president running as an independent - has no chance to win, no chance even to have serious influence. Unless the system itself is changed.
The first bold step in that change comes in a few weeks at a courthouse in Washington.