Smashing the Partisan Industrial Complex

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"…remember, where you have a concentration of power in a few hands, all too frequently men with the mentality of gangsters get control."
Lord Acton

Obamacare did not happen because President Barack Obama is an ideologue, because the Democratic majority resorted to heavy-handed procedural maneuvers, because Republican representatives failed to uphold fiscally conservative principles, or because the voters wanted change. Obamacare ultimately happened because voters had no choice. No choice in the form of candidates truly representing their priorities. No choice in the form of a partisan industrial complex devoted to perpetuating election politics as an end, and not the means to serving the public interest. While the marketplace unceremoniously upends long-standing champions and suddenly elevates newly established contenders, the American electoral political system remains the duopoly of two parties more than a century old. A new impulse may pull the two parties in one direction or another, but, for the most part, their candidates, even the firebrands, eventually become the most pernicious and corruptible of democratic phenomenon -- the entrenched Incumbent, more inclined to preserve the prerogatives of power than the principles once espoused. If individuals supporting tea parties around the country are truly galvanized by the glaring incompetence and failure of current officeholders and are truly dedicated to achieving change, then they must undertake a reform agenda that include changes to the electoral process itself.

Many observers, the author included, contended Obama's victory in 2008 marked the end of conservative electoral dominance stretching back to 1980. However, the vehemence with which opposition has arisen to elements of the Democratic Party's agenda gives pause to initial predictions for a full-scale liberal Democratic realignment. Moreover, a string of victories in 2009, inspiring candidates, and increasing momentum have reinvigorated Republicans while the prospects of the Democratic congressional majority surviving 2010 have diminished considerably. Unfortunately, primarily one party has benefitted from those who have successfully mobilized in pursuit of libertarian principles; the American electoral system has evolved to the point where an alternative has little to no chance of emerging.

"That would be political suicide. America is a two party system and to create a third party is to reinvent the wheel. [The National Tea Party Federation] was formed simply as a rapid response to put out brushfires in the mainstream media."
Mark Williams, chairman of Tea Party Express

The American two-party system is not corrupt -- but the rules which currently and primarily benefit only the two major parties are. The corruption is evident in the divergence between the elected and the electorate; while more and more voters espouse their independence, incumbent officials adopt increasingly polarized postures. Partisanship is no longer devotion to a cause but a commitment to the fortunes of the party, even when it is out of power. Success is more the ability to remain a viable and credible contender for power, rather demonstrating the ability to win and exercise power toward declared aims. The personality changes but the Incumbent is enduring. Generally, one of the two major party candidates becomes the Incumbent and he or she can depend on systemic features to insulate him or herself in the next election. Voters can indeed eject the Incumbent via the electoral process, but three major barriers to entry constrain would be candidates -- gerrymandered districts, ballot access regulations, and fundraising restrictions.

I.

Gerrymandering occurs during decennial re-districting when electoral district or constituency boundaries are modified to reflect demographic changes; in practice, gerrymandering produces deliberately -- and unusually -- shaped electoral districts. While gerrymandering can be employed for affirmative goals, such as facilitating the election of minority representation, its original and enduring use has been to fortify an electoral advantage. The ultimate aim to create safe seats for a proponent party's incumbents by consolidating likeminded voters into majorities and segregating opposition voters into minorities; while the opposition will inevitably acquire safe seats as well, the proponent party should come out ahead in the balance. At its worst, the proponent party and opposition will collude if the electoral benefits can serve both sides' interests; such collusion has occurred and has corrupted the aforementioned effort to increase minority representation.

Nominally an inherent component of the democratic process, redistricting is completed by elected state legislators. Unfortunately, the likelihood of gerrymandering is increased when redistricting is the responsibility of elected officials. With the obvious incentive to cement their own party's advantages, incumbents have rarely foregone the opportunity to shape districts otherwise, back to the very beginning of the Republic. Despite the Founding Fathers' warnings to the contrary, early American politicians coalesced into parties and were soon embracing less than honorable means to bolster their partisan comrades' electoral prospects. In 1812, Massachusetts Eldridge Gerry presided over a blatantly biased redistricting effort, inspiring the very term gerrymandering.

State legislators have retained jurisdiction over redistricting to the present day and the impulse to gerrymander remains as bipartisan and strong as ever. An overtly political example occurred in 2003 when the Republican Texas legislature undertook the unusual step of revising district boundaries a second time with the express goal of increasing Republican congressional representation. The subsequent map was eventually upheld by the U.S. Supreme Court only because the plan did not adversely affect minority groups.

II.

Unlike gerrymandering, ballot access restrictions appeared later, after the two major parties had solidified their pre-eminent position. Ballot access regulations refer to statutory requirements enacted to preclude discourage “frivolous” political parties or candidates from hindering the overall electoral process. Typical requirements include monetary deposits, a minimum number of signatures on a petition supporting the candidate, having previously won a seat, having received a minimum percentage of the votes in the last election, and / or a filing deadline. While seemingly straightforward, ballot access requirements vary widely from state and state and can range from easy to onerous, particularly signature requirements.

For example, the state of Colorado requires only a small number of signatures to qualify for the ballot – 1,000 signatures for the U.S. Senate, 800 for the U.S. House, 600 for the State Senate, and 400 for the State House. In contrast, the State of Virginia are slightly steeper – 1,000 signatures are required for a U.S. House race and 10,000 for a statewide race, including 400 from each Congressional district.

The most notoriously complicated rules are found in the state of New York. Candidates must obtain five percent of the enrolled voters of the political party in the political unit covered by the office or the specific numbers enumerated in the state's Election Law, whichever is less. Moreover, a candidate must also determine who is eligible to collect the signatures as well as who is eligible to sign. If the political unit in question is New York City, any registered voter who is a member of the candidate's political party and lives in New York City can collect signatures. However, only registered voters who are members of the candidate's political party and reside in that district can sign the petition. Lastly, voters are only allowed to sign one petition per office. A candidate has approximately five weeks to collect all of the requisite signatures and file his or her designating petitions with the requisite elections office between July 13 and 16, which complies with the state law requirement that designating petitions be filed between the tenth Monday and the ninth Thursday preceding the primary election.

Once submitted, the challenge portion of the petitioning process begins. The law allows any voter registered who can vote for the candidate to file written objections with the Board of Elections challenging that candidate's designating petitions. Those challenges must be made within three days of the filing of the petitions. Once challenges are filed, the board holds hearings to assess the validity of the challenges and issues a determination. In order to appeal the board's decision a person must commence an action in state Supreme Court, the lowest level court in New York's court system, "within 14 days after the last day to file a petition or within three business days after the board makes a determination regarding the invalidity of such petitions, whichever is later." If the appeal involves a determination about whether a candidate's name will appear on the ballot or a voting machine, the Supreme Court, if possible, is supposed to issue a final order at least five weeks before the day of the election.

As noted at the outset, candidates must obtain five percent of enrolled voters – the labyrinth of requirements and challenges compels candidates to obtain at least three times that amount as a cushion. One candidate recalled how complying with state regulations demanded up to 75 percent of his time and 28 percent of his campaign chest.

In practice, the requirements restrict the ballot to the two major parties. In 2004, third party candidate Ralph Nader appeared on the ballots of only 35 states and Washington D.C. In seventeen states, legal challenges to the Nader candidacy succeeded in the candidate's removal from three ballots. In another eight states Nader could not get on the ballot because of failure to submit the required number of signatures. In the last four states, Nader did not even try to get on the ballot.

III.

While parties and candidates throughout American history raised amounts that would have been characterized as "obscene," campaign financing regulations were not established until recently. In the aftermath of serious financial abuses in the 1972 Presidential campaign, Congress amended the Federal Election Campaign Act (FECA) in 1974 by setting new finance limits as well as establishing the Federal Election Commission (FEC) to enforce the law and administer the public funding program.

The general thrust of the regulations has been to limit contributions and expenditures all the while increasing disclosure of both.

FECA initially placed limits on campaign contributions and expenditures, the latter of which were invalidated on First Amendment grounds in the Supreme Court decision of Buckley v. Valeo. The 1976 decision upheld limits on campaign contributions on the basis of the state's compelling interest in preventing corruption or the appearance of corruption, but ruled that spending money to influence elections is a form of constitutionally protected free speech, and struck down portions of the law. Fast forward to the present day and an individual may now only contribute a maximum of $2,400 to one candidate. Furthermore, candidate committees, party committees and political action committees must file periodic reports disclosing the money they raise and spend, generally on a quarterly or monthly schedule.

Ostensibly enacted to prevent financial abuses and imbalances between differently resourced candidates, the regulations have yielded yet another advantage for entrenched major party incumbents. (That the first correction to campaign finance laws arose from the aforementioned Supreme Court case that was launched by a third party U.S. Senator -- and a conservative one at that -- is telling.) Moreover, another unintended consequence has been greater preoccupation with fundraising on the part of elected officials. While one would hope with greater attention to fundraising would be greater scrutiny, the opposite has been true. Candidates continue to profess their surprise at the appearance of less than reputable contributors on donor rolls and offer up ever more increasingly intelligence-insulting explanations, as in "there was no controlling legal authority that says this was in violation of law."

A Genuine Reform Trifecta To Achieve Enduring Change

Reforming the electoral process hardly has the allure of massive rallies or insurgent candidacies, but would accomplish far more.

To end gerrymandering, tea partiers should consider promoting the truly unique approach employed by Iowa, which has its redistricting plans drawn up by the Legislature's nonpartisan, professional service group, the Legislative Service Bureau (LSB). The LSB uses specific constitutional and statutory guidelines for drawing the new districts -- protection of incumbents is prohibited and the LSB is forbidden to discuss the plan with any legislator during the drafting process. Once the plan has been released, public hearings are held. The LSB plan then must be approved by the Iowa legislature. No changes, other than technical changes, are allowed. If the legislature rejects the first plan, the LSB prepares a second plan. The legislature then votes on the first or second plan. Only if both plans are rejected will the LSB prepare a third plan, which can then be amended by the legislature. The system has never broached a third plan, an indicator legislators fear any changes they demanded would transparently reflect partisan electoral calculations. More pointedly, the fact no other state has replicated Iowa's approach reflects how it would effectively preclude political exploitation.

To expand ballot access, an obvious aim of tea partiers should be to relax qualifying regulations, in particular signature requirements. As noted previously, requirements range considerably from state to state and, unfortunately, would have to be changed state by state. Under the U.S. Constitution, the authority to regulate the time, place, and manner of federal elections is up to each State, unless Congress legislates otherwise -- a dim prospect given the unlikelihood incumbents would forgo the advantages attained under existing rules. The straightforward and simple aforementioned examples of Colorado and Virginia should be considered suitable alternative standards.

To rationalize campaign finance, the objectives for tea partiers should be unrestricted spending, unlimited individual contributions, and immediate disclosure. Unlimited spending is matter of free speech, as has been upheld in numerous Supreme Court decisions. Removing caps on individual contributions may be more difficult. While the state's interest in preventing corruption or the appearance of corruption is indeed compelling, unlimited fundraising would permit a candidate to expend less time soliciting funds and more on conducting the actual campaign. Moreover, if immediate disclosure is mandated -- on the Internet within twenty-four hours instead of monthly or quarterly -- a formidable check on preventing corruption would be in place. Inclined to accept $100,000 from David Duke, just be prepared to tell the world tomorrow and submit to the inevitable backlash.

"All men having power ought to be distrusted to a certain degree."
James Madison

Crist's name to be buried on Florida ballot
CNN, April 29th, 2010 06:33 PM ET

Tea partiers may be bidding Charlie Crist good riddance and relishing a potential election trifecta in Illinois, Nevada, and Delaware and, but the reality is the goal should be the above reform trifecta. As Crist's fate shows, out of favor with the two parties means out of sight in the election.

Securing the reform trifecta means never having to stay home on election day, never having to compromise in the voting booth, never having to write in your choice, never having to vote none of the above, or never having to say term limits. When remembering politicians like the disgraceful Arlen Specter, conservatives readily know the perils of standing by the establishment candidate. More pointedly, conservatives know better than their liberal pro-government adversaries that a sustained stay in power is certain to corrupt. As many have lamented, not only did Republican conservatives fail to change Washington, but Washington actually changed them.

Once power is attained, the clock starts ticking – integrity, once introduced to privilege, has an expiration date.


Premised on the exceptional insights of David Paul Kuhn and Jay Cost at RealClearPolitics.com

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