A long, and long-shot, quest to get more candidates onto the presidential debate stage has run aground in a federal appeals court.
The Libertarian and Green parties, and the nonprofit advocacy group Level the Playing Field, have been challenging the debate qualifications for six years, arguing they unfairly if not unconstitutionally favored the nominees of the two major parties. The D.C. Circuit Court of Appeals flatly and unanimously rejected all those arguments last week.
Many groups who view the political system as broken place much of the blame on the Republican and Democratic duopoly, which they say will never be weakened unless candidates with other allegiances have a shot at victory. And a prerequisite for getting a serious look for president, they argue, is getting your personality and policies known to the sort of national TV audience only debates command.
For three decades, however, the Commission on Presidential Debates has used a 15 percent national polling average threshold in deciding who is invited to the general election campaign faceoffs. The threshold is so high, critics say, that it's essentially impossible for an outsider to meet during this era of highly polarized partisan politics.
Candidates must also be on the ballot in enough states to be mathematically capable of winning a majority of electoral votes, a much simpler test to pass than the polling average.
The nonprofit commission, run by a bipartisan board, is generally bound by rules set by the Federal Election Commission. And, writing for a three-judge panel Friday, Judge Raymond Randolph concluded "there is no legal requirement that the commission make it easier for independent candidates to run for president."
The lawsuit also maintained the debate commission's membership and procedures were biased in favor of the two major parties.
"Party chairs, former elected officials, top aides, party donors and lobbyists" have almost always filled the seats on the so-called CPD, the plaintiffs argued in their brief to the appeals court. "These staunch partisans endorse Republican and Democratic candidates, lavish them with high-dollar contributions, oversee even larger contributions as paid-for-hire lobbyists and accept undisclosed contributions from corporations that buy influence with the major parties using the CPD as a conduit."
Randolph's 13-page opinion rejected that argument as well, noting that the panel is largely following the parameters set by the FEC but also reviews its rule book and considers changes after every election to see if changes need to be made.
For instance, after the independent billionaire Ross Perot was excluded from the 1996 debates despite running a second nationally visible campaign, the panel adopted new criteria making the stage a bit more accessible — although not so available that anyone other than the GOP and Democratic nominees has participated in the subsequent five elections.
The same will almost certainly be true this fall, when President Trump and former Vice President Joe Biden are scheduled to meet three times and their running mates are to debate once. Libertarian Justin Amash was the most prominent third-party candidate to enter the race this year, but he ended his bid only after three weeks.
Level the Playing Field and a voter in Washington, D.C., started the case back in the fall of 2014, filing an administrative complaint with the FEC. The Greens and Libertarians joined the cause the next year, but they were unable to persuade the agency to drop public opinion polling from the debate invitation criteria.
The groups then sued in federal court, where District Judge Tanya Chutkan at first asked the FEC to reconsider and then dismissed the lawsuit altogether last year. The D.C. Circuit ruling affirmed that dismissal.
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Mike Bloomberg's debate debut offers him an opportunity to explain where he stands on most of the main agenda items in the democracy reform movement, a topic on which he's revealed little so far.
And if he doesn't volunteer his views, starting with his attitude as a self-funding billionaire candidate toward regulating the campaign giving and spending by others, his presidential rivals will have every incentive to press him hard Wednesday night.
Of the 17 most prominent proposals for improving the way democracy works — not only on campaign finance but also on access to the ballot box, election security, political ethics and revamping our governing systems — Bloomberg has staked out a clear position on just 10.
That's fewer than any of the five others who qualified for the nationally televised two-hour forum, starting at 9 p.m. Eastern in Las Vegas. One of Bloomberg's main, albeit struggling, rivals for the more centrist lane in the Democratic primaries, former Vice President Joe Biden, has only revealed his stance on 11 of the issues.
The nationally televised forum comes as Bloomberg has surged into the top tier in national polling, almost entirely thanks to his more than $300 million spent selling himself on TV and online. The debate marks the first time he'll be confronted by many of his opponents in person, and they are sure to attack him over his record as mayor of New York and the muscular use of his enormous fortune to promote a varnished version of his views.
While the range of areas for potential confrontation is vast, there's reason to believe the plight of the dysfunctional democracy will be discussed as it's seldom been in the eight previous debates.
Sen. Bernie Sanders of Vermont has become the front-runner in part by castigating the behavior of billionaires at every turn, and Bloomberg will be an obvious foil for a fresh barrage of angry talk about the corrupting influence of big money on both campaigning and governance.
The three remaining candidates on stage — former Mayor Pete Buttigieg of South Bend, Ind., Sen. Amy Klobuchar of Minnesota and Sen. Elizabeth Warren of Massachusetts — have all formally pledged that their opening legislative priority as president would be a bill revamping the political system and boosting government ethics. So any one of them could press Bloomberg on whether he would do the same.
Despite heavy criticism for tapping the $60 billion fortune he's amassed as a media mogul for the entirety of his campaign — he's not soliciting or accepting any donations — Bloomberg has been silent on what if anything he'd do to reduce the influence of money in politics.
All the other debaters, for example, support somehow "overturning" the Supreme Court's 2010 ruling in Citizens United v. FEC, which has allowed for virtually unlimited political spending. They also support robust programs of public financing for federal campaigns and requiring more transparency from the "dark money" groups who currently don't have to disclose their donors. But Bloomberg has not weighed in on any of these issues.
Since he is only spending his own money, Bloomberg boasts that his would be an administration completely insulated from the influence of special interests. And so, unlike the others on stage, he has made no promises about rebuffing the donations from lobbyists that normally pour into presidential coffers.
Bloomberg also has not embraced transparency the way many of the others have. On top of releasing their own federal tax returns, they favor requiring all presidential candidates to do so. Bloomberg has said he would make his IRS filings public only if he wins the Democratic nomination.
Presidential candidates also have to file personal financial disclosure reports with the Federal Election Commission that include in broad ranges their assets, income and debts. But the FEC has granted Bloomberg, who only entered the race in November, two deadline extensions, so his report won't be available until March 20. While such an extension is not uncommon, it means voters won't see details about Bloomberg's finances until more than halfway through the Democratic primaries.
Like all the others in the debate, Bloomberg wants to ease access to the ballot box two ways. He would revive the Voting Rights Act's system for making states with histories of electoral discrimination get federal permission before changing any voting rules. And he would nationalize the requirement, which is steadily spreading in the states, that eligible people are automatically registered to vote whenever they do business with another government agency, such as a motor vehicle bureau.
Bloomberg and the other candidates (except Biden) favor early voting and same-day voter registration.
He would restore voting rights to felons as soon as they have served their sentences — putting him in the same company as all the others except Sanders, who would allow people to vote while imprisoned.
To ensure election integrity and security, Bloomberg would mandate a voting paper trail and post-election audits in every state. He would also compel states to establish independent redistricting commissions to draw the congressional district boundaries after the census each decade. These stances are in line with the other Democrats.
As of Friday, Bloomberg's campaign website included a plan for political reform, which was noted as a "top priority." It mainly touted his 12-year record as mayor, ending in 2013, of increasing public campaign subsidies for local candidates and strengthening ethics laws. The brief was removed from his roster of more than 30 policy pages over the weekend. His campaign did not respond to a request for comment.
Bloomberg does set himself apart from his rivals on two issues, though. He is opposed to abolishing the Electoral College in favor of the popular vote. And he has no interest in changing the Supreme Court's makeup by adding justices to the bench or implementing term limits. Biden is the only other Democrat in agreement with Bloomberg on these issues, although some of the others say they are open to such proposals without making a firm endorsement.
The debate is being hosted by NBC, MSNBC and the Nevada Independent. Bloomberg's spot on stage is largely thanks to a rule change by the Democratic National Committee. Previously, candidates qualified by showing strength of support through donors and polls. But at the end of January, the DNC eliminated the unique donor threshold, opening the stage to Bloomberg as soon as he proved the viability of his candidacy in a series of national surveys.
Several Democrats claim the DNC made this change just to benefit Bloomberg. FEC data shows that just two days before entering the race, he gave $320,000 in three installments (the maximum amount allowed) to the national parry — his first donation to the committee in more than two decades. No one else on the debate stage has given to the DNC this election.
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Schmitt is director of the political reform program at New America, a nonpartisan think tank.
A presidential campaign is a contest of ideas, not just personalities. As candidates set out policy priorities and develop proposals, we learn more about what they care about, but we also see in their reflection what voters and party activists want to hear. The proposals that even the failed candidates embrace, and the priority they give them, can foreshadow ideas that will take hold in the future.
New America looked into how the major candidates for president have been talking about reform of democracy. We took an inventory of the ideas emerging in this high-intensity laboratory. What we found validated our colleague Lee Drutman's recent observation that "from the long arc of American political history, I see the bright flashing arrows of a new age of reform and renewal ahead."
Not since 1976, after Watergate and an earlier impeachment, has the vision of reforming democracy itself been as central to a presidential contest as it is now.
While curbing the influence of money in politics has been on the agenda in previous campaigns — it was central to 2008 Republican nominee John McCain's career, and Barack Obama emphasized restrictions on lobbying — the range of different democracy reform issues on the agenda this year is unprecedented. In the decade since the Citizens United v. FEC and Shelby County v. Holder decisions, citizens have been mobilized by concerns about voting rights, corruption and the relationship between economic and political power.
President Trump has embraced some limits on the "revolving door" between lobbying and government, but he has appointed more lobbyists to key positions in three years than his two predecessors did in eight. Otherwise, Trump has not endorsed any elements of a political reform agenda, and promotes removing voters from the rolls.
His only remaining Republican challenger, William Weld, the former Massachusetts governor and Libertarian vice presidential nominee in 2016, has challenged the winner-take-all allocation of electoral votes and embraced ranked-choice voting.
Republican presidential candidate Bill Weld, campaigning in New Hampshire, has embraced ranked-choice voting. Scott Eisen/Getty Images
The Democratic candidates' positions on democracy can be grouped in three categories. One involves expanding voting rights, reinstating provisions of the Voting Rights Act, ending voter ID and felon disenfranchisement laws and otherwise extending the promise of democracy. A second focuses on corruption, limiting the influence of lobbyists and regulating campaign donations. Last are changing three institutions to make it easier for a majority to achieve lasting policy changes and overcome the barriers to majoritarian government: the Electoral College, the Senate filibuster and the Supreme Court.
In the first category, a candidate who has left the race, Cory Booker, was the pacesetter in advocating expanded voting rights, automatic voter registration, voting by mail and making Election Day a holiday. Pete Buttigieg has similarly proposed a "21st Century Voting Rights Act," which would "use every resource of the federal government to end voter suppression." Others, embrace automatic voter registration and reviving more robust oversight of elections in places with discriminatory histories.
A related stream of reform in this category would fix the failures of our winner-take-all system of voting. The most prominent alternative is ranked-choice voting. Several candidates have said they're "open" to such reforms. Bernie Sanders, Michael Bennet and Andrew Yang have been more explicit in endorsing RCV.
Sanders and Elizabeth Warren have approached political reform almost entirely in the second category — promising to end a system that's "rigged" for the wealthy. Warren, unsurprisingly, has the most specific plans to end corruption. She would ban campaign contributions by lobbyists and institute lifetime lobby bans on former elected officials from lobbying. While that could raise constitutional questions and deter people from public service, it directly targets the intersection of money and influence.
Amending the Constitution to reverse both Citizens United and the 1974 Buckley v. Valeo rulings, in order to permit broader regulation of political spending, has consensus support among Democrats. Sanders, Warren, Bennett and Amy Klobuchar all voted for such an amendment in 2014. Most also support a system of public financing based on matching small contributions, though some are vague about its design. Michael Bloomberg takes credit for expanding New York City's model small-donor matching program.
The third category is where the newest and most controversial ideas are found. Particularly during the Obama era, when the Senate blocked most of his initiatives after his first year, Democrats became alarmed by the parts of the system that stymie progress, even when a majority favors change. That alarm remains, with the legislative filibuster the most immediate obstacle. Tom Steyer, Andrew Yang and Warren support ending it. Joe Biden, who was a senator for 36 years, opposes the change. Others are more ambivalent about it.
The Supreme Court also has the power to reverse policies that are popular, leading Buttigieg, Steyer and Yang to embrace changes such as expanding the court or imposing term limits. After the Electoral College vote determined a winner of the 2000 and 2016 elections different from the popular vote, there is new interest in eliminating or reforming that institution as well. Six candidates have expressed support for amending the Constitution or employing an interstate agreement to effectively guarantee the presidency to the winner of the popular vote.
The scope of political reform has expanded well beyond the narrow focus just a few years ago on limiting the power of money in politics and lobbying. But while previous efforts had broad support in both parties, enthusiasm for reform is now concentrated among Democratic candidates and voters.
While this divide is concerning, as is the partisan polarization across so many issues, the crisis of democracy and the hunger for real change makes it plausible the ideas on the agenda this year will capture the imagination of voters and politicians across the political spectrum in the decade ahead.
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Beckerman is the founder of Open the Debates, a cross-partisan group that advocates allowing more third-party and independent candidates to participate in campaign debates.
In 1858, the country was divided. Abraham Lincoln opened his campaign for the Senate in Illinois with a powerful and controversial speech quoting Jesus: "A house divided against itself cannot stand." He added, "I believe this government cannot endure, permanently half slave and half free."
Incumbent Democrat Stephen Douglas engaged Lincoln in a defining series of seven debates focused on the issue of slavery and its expansion to the western territories. The debates jolted the nation, drawing crowds of tens of thousands and widespread national coverage. While Douglas won the Senate race, the debates catapulted Lincoln to the Republican nomination for president in 1860 — and the pivotal role in saving the nation.
As we seek to exit another dark period of disunity without fraying the "bonds of affection" and "mystic chords of memory" that Lincoln believed unite us, we would be wise to look to the nature of our political discourse and the political debates that shape it.
On the one side, President Trump's Republican Party is shutting down debate altogether. It has canceled seven primaries and refused all calls for debates. His two major GOP challengers, former Massachusetts Gov. Bill Weld and former Rep. Joe Walsh of Illinois, are left to find sympathetic media and create their own public relations operation. In other words, the playing field is steeply slanted against them.
On the other side, the Democratic Party is having its own exclusionary debates. While their field has been praised for its diversity, the party has managed to accommodate over 20 voices while still being indefensibly exclusionary, arbitrary, biased and secretive.
Andrew Yang, the lone person of color who made it as far as the sixth debate in December, said the demographics on the stage were not a coincidence, but a result of the racial makeup of the fewer than 5 percent of Americans with the discretionary income and interest to donate to political campaigns. And now, with the Democratic National Committee set to decide on Friday who will get to debate in Des Moines in the final days before the Iowa caucuses, Yang is likely to get dropped — entirely because of invitation criteria largely reliant on polling, despite almost no early state polls being released since mid-November.
Of course, the Democratic debates have been lambasted for plenty of reasons beyond the invitation criteria. Criticism of the moderators, the substance and style of the questions, and the absurdity of the format has been widespread. The idea of 10 people in snippets of 30 seconds or 1 minute not only landing zingers and media hits but also tackling some of the biggest challenges facing our nation? It is ludicrous on its face.
Sen. Bernie Sanders, in an August interview, said, "You shouldn't even call them a debate. What they are is a reality TV show in which you have to come up with a soundbite and all that stuff. It's demeaning to the candidates and it's demeaning to the American people. You can't explain the complexity of health care in America in 45 seconds. Nobody can."
In contrast, the Lincoln-Douglas debates started with a 60-minute opening statement, followed by a 90-minute rebuttal and then a 30-minute rebuttal by the first speaker. The candidates addressed each other directly. There were no moderators and no limits on what could be said. They were centered almost entirely on slavery, the single issue fracturing the nation at the time.
While we are not calling explicitly for Lincoln-Douglas-style encounters, the very nature of today's political debates needs a serious overhaul. We desperately need to inject new ideas, new voices, new formats and new approaches into our lifeless debate process. Instead of relinquishing control of our political debates to the two parties along with self-appointed gatekeepers like the Commission on Presidential Debates and the TV networks, we should be asserting our rights to construct a people-powered process that serves our collective needs as a free nation.
We can choose to live in a democracy, or we can choose to live in a reality TV show — where the contestants get voted off the island well before We the People get a say.
During the horrific Civil War, Lincoln delivered his most famous speech, the Gettysburg Address, strengthening a sense of unifying national purpose that has far outlived his era: "We here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth."
While those powerful words were a rallying cry for American democracy, the idea of government of, by and for the people has never truly been attained. They are merely a symbol of what we aspire to as a nation and what we must come together to fight for.
At this time of great political upheaval, it is critical that we the people reinforce the aspirational principles that have gone furthest in uniting us. We must lean heavily on those ideals that have brought us together in common cause, even when it is clear that those ideals have never in our history been fully realized. If neither our debates nor our leaders are, like Lincoln, calling forward the "better angels of our nature" then it's time we scrap both and go back to first principles.