When I watch the Democratic and Republican likely presidential nominees give a primary victory speech, my mind goes straight to Connie Francis's 1958 classic song, "Who's Sorry Now?" ("Right to the end / Just like a friend / I tried to warn you somehow / You had your way / Now you must pay"). I am not alone.
According to two Gallup polls earlier this year, 51 percent of Americans have something negative to say about Hillary Clinton, and 60 percent have a negative opinion of Donald Trump. Even before the nominees narrowed to Clinton and Trump, most Americans were thinking the US needs a third party.
I wonder how many voters are sorry now that we don't have — and they haven't worked for — an electoral system that would allow for a galvanized movement of independents or a viable third party able to compete successfully for the presidency.
For five years in a row, 40 percent or more of the American public has identified as "independents," according to Gallup. But identifying as an independent doesn't mean much when there are few independents with a chance of winning on the general election ballot. Political independence means little when voters only have two major parties between which to choose that have any hope of winning in a winner-take-all, two-party-dominated general election.
Disaffected constituencies inside the Republican and Democratic Parties are starting to look at their options. Every four years, we come to this point: Dissatisfaction with the major party candidates leads to cries for alternatives, and then reality comes crashing in. As an initial matter, the problem can be squarely laid at the feet of voters themselves, as they are unwilling to take a risk outside the two parties once their nominees lose inside the two major parties.
I know because I tried twice to open up the system to candidacies outside the two parties: first in 2000, as the national campaign manager for Ralph Nader when he was the Green Party nominee, and then again in 2004, when Nader ran on a potpourri of third-party and independent ballot lines.
Until we fix our Byzantine ballot access system, our partisan electoral administrations, our campaign financing system, our inexplicably exclusive Commission on Presidential Debates, and a media fixated on horse-race politics, it is a myth that anyone can run — successfully — for president outside of the two parties.
Bernie Sanders's supporters are still fighting vigorously inside the Democratic Party. But they know that Clinton's daunting superdelegate lead will mathematically trounce their candidate long before the Democratic convention. Yes, Sanders has won several states, managing to collect a substantial number of delegates, but he still, with his energized, low-donor (less than $200) base, has essentially no chance of becoming the Democratic nominee. (A fact that he apparently acknowledges.)
By challenging Clinton inside the Democratic Party, Sanders has self-limited his message to the primary season. Once Clinton has amassed enough delegates to win the nomination, Sanders will become politically irrelevant. At that point, Clinton will start to strong-arm the liberal left as she moves rightward to appeal to centrist voters. Clinton knows what Sanders supporters have yet to absorb fully: They have nowhere else to go.
This will surely be disconcerting for Bernie supporters, since Sanders claims he wants a "revolution." But Sanders's idea of a revolution is to insist that he will not break Democratic Party ranks, repeating often that he will "not be a Ralph Nader." But what Nader and his supporters understood, and Sanders supporters don't, is that if Sanders sticks to his pledge, he will have bought a ticket to political oblivion rather than revolution.
If you want to change the electoral system and politics as usual, you do not do it from inside the two major parties with rules that favor their frontrunners.
If the Sanders supporters don't look outside of the party, these "wannabe revolutionaries" will find themselves dutifully voting for Clinton — the candidate against whom they have campaigned and from whom they will get precisely zero in terms of revolutionary change.
Sanders supporters need not look further than anti–Iraq War candidate Dennis Kucinich in 2004. After Kucinich failed to win inside the Democratic Party, despite his loyalty to the party, he didn't get a single significant concession into the Democratic Party platform in 2004. Kucinich supporters were taken for granted when the pro–Iraq War John Kerry reported for duty at the Democratic convention that year. Kerry marched the Democrats into the electoral abyss with legions of anti–Iraq War activists behind him, who abandoned their antiwar principles and followed the party mantra.
Of course, most Sanders supporters wouldn't think for a nanosecond of voting for Donald Trump. So if they really want to "feel the Bern," they must stop talking about "revolution" and instead do something "revolutionary," such as voting for a third party on the left — like Dr. Jill Stein, the most likely Green Party nominee for president, or for a Socialist Party candidate, or another choice on the left.
If they wanted to, they could take that sophisticated low-donor Sanders fundraising machine and the savvy grassroots organizers (many of whom the Ralph Nader, Howard Dean, and Barack Obama campaigns undoubtedly trained) and put some air into the sails of a progressive third-party candidacy.
But there will never be a political revolution if they fail to break party ranks because they prefer the pain of "winner take all" politics, even with the prospect of four more years of the distinctly non-revolutionary Clintons in the White House.
I understand, quite personally, why the Sanders supporters will largely fail to break ranks. When progressives do try to put muscle behind their message, as Frederick Douglass counseled in his memorable admonition that "Power concedes nothing without a demand," the Democratic Party engages in a massive shaming campaign, as it did by labeling Ralph Nader a spoiler to be shunned.
Instead of blaming their own rightward-leaning party members who broke party ranks to vote Republican by the tens of thousands for George Bush in the close Florida election returns of 2000, prominent Democrats fixated on Nader. He was the one scapegoat they would use in perpetuity to prevent any third-party candidate who posed a threat to their hegemonic behavior by building electoral reforms and helping to launch a progressive base.
It's telling that of all the factors that could explain the 537 vote count difference in Florida, including the purged election databases, the uncounted votes, the weather, the design of the Palm Beach County ballot, the Florida Supreme Court, the loss of Al Gore's home state of Tennessee and Clinton's Arkansas, and, most dispositive, the intervening US Supreme Court, the one factor the Democratic Party to this day harps on is the still principled Ralph Nader.
What about those establishment Republican Party voters? For whom are they going to vote? It was painful to watch their candidates in the primaries, fighting like the British did in the American Revolution, lining up to be mowed down promptly by guerrilla Trump tactics and billions of dollars of free corporate media fanning attention to his Twitter antics.
It's unlikely that most conservatives who shudder and squirm when Trump comes on TV will abandon ship and vote for Hillary. Perhaps some mainstream Republican voters will now check out Libertarian Party candidates such as Gary Johnson, the former governor of New Mexico, or the nominee of the Constitution Party or the Reform Party.
The Donald and Hillary haters, now that they are faced with voting for their major party nemesis over their principles this November, will begin to bemoan how every election cycle the broken electoral system brings us such bad choices and forces anyone not brain-dead into a jiujitsu political rationalization of, "At least he/she is not as bad as the other major party's abysmal candidate."
I feel only a wee bit sorry for them.
They talk about starting another party or running a wildcard candidate outside of the party, but until they have begun to try, they really have no idea how difficult it is to pull off.
Do the political independents and third parties — who have struggled for decades to get lines on election ballots, a spot in the presidential debates, an infinitesimal fraction of the financing, or scraps of the two-party horse race–focused media attention, and a seat at the electoral table — have their attention yet?
Or will these recently aroused two-party voters continue to think that those who run outside of the two parties do so only because of narcissism, rather than a principled desire to offer a candidate and ideas the voters can respect when they are disgusted with the major party candidates?
It feels terrible to have no one tolerable to vote for, doesn't it? When none of the nominees espouse your views, it's easy to start to think, "Hey, maybe there should be a third party, or even a fourth." We don't settle for two flavors of anything in the economic market. In a country capable of producing infinite numbers of soap and cereal boxes, why can't the political market have more choice?
A hundred years ago in the 1916 congressional races, according to Richard Winger, the publisher of Ballot Access News, our country had representatives from five different parties elected to Congress.
But over the past 100 years we have boxed ourselves into a two-party-dominated system, with redistricting determining outcomes, daunting ballot access laws restricting voter choice for candidates who are challenged by the prospect of getting on or being stricken off the ballot, and voters mainly unable to think in any terms but binary, even with each election cycle arguably offering less appealing candidates than the former batch.
It is reasonable to think that it is time for a multi-party renaissance — that another party or two with chops could run a three- or even four-way race, as we had in the presidential election of 1912 with Teddy Roosevelt, Woodrow Wilson, William H. Taft, and Eugene Debs? We have done and again can do this as a country. It is not impossible to do it this year, but it is very unlikely unless millions of people get rapidly organized.
Nader, for example, started in late February in 2000, with a few Green Party ballot lines and only $40,000, i.e., no money. With the help of the embryonic Green Party, he got on the ballot in 43 states and the District of Columbia. With more time and money or a more developed minor party, we could have made all 50.
Others with more money have done so, also starting late. Ross Perot started in mid-March in 1992, and John Anderson in late April in 1980, when he converted from a Republican to an independent candidacy. Perot and Anderson were both on all 50 ballots.
Often it takes lawsuits — we brought plenty of them to challenge unconstitutional and unfair ballot access laws. And it always takes money and organized campaigns — in each and every state, with a team of serious people who pay meticulous attention to the precise details required to line up properly registered, qualified electors and a vice presidential running mate, petitioner drafters and circulators, signers, lawyers, and teams of volunteers if necessary to defend each and every signature and petition to gain a line on the ballot.
Could presidential challengers outside the two-party system starting now be willing and able to navigate the minutiae of 50 sets of rules (plus DC)? In most states, hordes of people will need to stand on various well-trafficked corners with a clipboard in all kinds of weather, trying to get enough signatures on their petition from people who don't know if they are registered to vote, who do not know how they registered to vote, and who do not want anything to do with someone holding a clipboard.
Plus, if they mess up or if a signer pranks them, the signature collector and candidate may wind up on the end of a criminal investigation for ballot fraud.
Though states claim they develop these laws to prevent non-serious candidates from getting on the ballot, the punishing compliance required keeps credible candidates from participating. The Supreme Court has held that a candidate must only show a "modicum of support among the potential voters for the office" to access the ballot, otherwise these laws violate the First and 14th Amendment rights of voters to choose and, on the flip side, for candidates to run.
But the draconian ballot access laws and the lack of uniformity operate cumulatively to haze challengers to the two-party system in state after state before they can even present themselves to the American public as an option on the ballot. The crushing consequences for campaigns translate into exhausted volunteers, diminished campaign funds, and little time or money left to campaign before Election Day.
Even if the third-party or independent candidate turns in the requisite signatures to get on the ballot, the nightmare does not stop there: The two major party candidates or their surrogates — and surely Trump and Clinton could deploy them — can file lawsuits to challenge the putative challenger's papers in court, tying up campaign resources and adding to the uncertainty of that candidate's ability to even wage a campaign in the state.
Why would a campaign spend resources to attract voters whose ability to vote hinges on a judicial outcome that may not even be rendered in time (much less with time to appeal) before the day the state decides to print its ballots?
In 2004, for example, the Nader campaign faced more than two dozen lawsuits, to strike Nader from the ballot — after having collected and submitted the requisite signatures. It was a summer of summonses: I had to run the equivalent of a national law firm on top of the campaign just for Ralph to remain a choice for voters and mathematically viable for the presidency.
With all these prohibitive laws and well-financed ballot access challenges, a new party or independent campaign today would have to stand on corners all around the US to get approximately 885,000 valid signatures in a few months to get a line on all 50 ballots and DC. (If you use a mix of independent and party lines by creating a new third party in some states, the number can go as low as 635,541.)
Theoretically they could still get on the ballot even if they started now. The Texas ballot access deadline for an independent presidential candidate cuts off the second Monday in May, and would have to be challenged as unconstitutionally early at this point. (The cutoff for a third-party presidential candidate is May 22. That state's rules are no walk in the park — circulators may only collect signatures from those who did not vote in the presidential primary of either major party, by definition from people less inclined to be interested in politics.)
Four other states have ballot access deadlines in June, though courts have also been willing to strike down June deadlines in a handful of other states as unconstitutionally early.
A challenger should collect double the number of needed signatures to inoculate against those signatures considered invalid, and in some hotly contested states, a campaign should collect at least triple the required signatures as an insurance policy against well-funded and sure-to-be-vicious challenges over the validity of the signatures.
If a new third-party or independent candidacy could not get on the ballot, it would be relegated to write-in status, which often also requires signature gathering and paperwork (and seven states, according to Ballotpedia, do not even permit presidential write-in votes, while some states don't count write in votes — unless the election is close).
Even where two-party challengers get on the ballot, in some states the major parties allow their partisan campaign chairs to serve as the election officials. These officials can and do change the unwritten rules midstream. Blatantly partisan secretaries of state may also conveniently forget to hire enough people to enter tens of thousands of new voter registration forms to update their voter databases, or may inexplicably purge their databases of legitimately registered voters.
Partisan officeholders also get to decide how many voting booths will be available in poor and student-dominated areas, thus causing long lines to wait to vote, or what forms of ID are necessary. In a country where we can pay for goods and services and bank by flashing our phones, a voter has to stand in long lines to vote; a candidate today has to stand on the corner to get on the ballot; and then both voters and candidates face electronic voting machinery with election results dribbling in sometimes weeks after an election.
Ballot access is but the first and most prominent difficulty for a serious challenger of the two parties' nominees. The next question facing the outside candidacy is whether the challenger can sustain the withering media criticism of mounting a challenge outside of the two major parties.
Every third-party candidate, no matter how well-intentioned, will be accused of "stealing" another party's votes, as if a major party already owned them, even though the democratic presumption should be that each candidate must earn his or her votes in any election.
The candidate will be labeled a "spoiler" and covered only to the extent that he is considered likely to have a potential effect on the two-party horse race. The media, to the extent they pay any attention at all, will label the candidate as a self-serving narcissist, rather than a person who has principles and a platform, and then editorialize against her participation in the presidential debates or in the election at all, as the New York Times did twice in 2000, referring to Nader as cluttering the field.
That treatment is reserved for the "lucky" challengers. Most third-party and independent campaigns fade into obscurity because the media doesn't mention them at all and their candidates cannot galvanize voters overwhelmed by the staggering odds of getting anyone elected outside of the two major parties.
Only the potentially successful challengers get to be branded as spoilers and imposters out to ruin the election. "Competition," unpredictability, and risk are apparently reserved for economic markets, not political ones in a two-party, winner-take-all world.
Can anyone explain why the putative challenger should be blamed for the election outcome when the real question to ask is why our vote-counting systems have not been sufficiently updated in the past 250 years to maximize voter choice through elimination of the electoral college, or the adoption of instant runoff voting, the National Popular Vote Plan, or proportional representation, such that voters could "safely" vote for their first choice — a party outside of the two major parties — and thereby help build alternative party bases and broader electoral choice over the years rather than risk electing the candidate most distant from their vote preference?
The chances are small given that even relatively simple electoral reform ideas, such as not voting only on Tuesdays, same-day voter registration, or sending out ballots in time for our military members overseas to have a real chance to have their vote counted, have yet to be fully embraced as necessary reforms to make our elections work better. Sadly, little nationwide attention is paid to reform efforts between elections.
The next major question for would-be two-party challengers is how they will raise money quickly with the over-inclusive and under-inclusive regulations of the Federal Election Commission. The would-be candidate should ideally be a self-financing millionaire or billionaire or able to harness technology to raise a lot of money quickly and master the learning curve of how to comply with the volume of federal election campaign finance rules.
The rules are enforced either by opposition parties seeking to tarnish the campaign or, intermittently, by the commission, depending on its political will — as its composition is always three Republicans and three Democrats, rather than containing representatives of minor parties or independents, or simply nonpartisan commissioners.
Though many major newspapers have editorialized about the FEC's legendary dysfunction, it remains underfunded and unable to prevent much of the two-party hazing of minor party candidacies. It even finds it difficult to answer basic questions of how the rules it writes apply in situations outside of the two major party candidacies.
Finally, no candidate is seen as a legitimate presidential contender if he or she cannot get into the presidential debates.
How would a Donald and Hillary challenger get herself in? The "so-called" Commission on Presidential Debates, an official-sounding but nongovernmental entity, founded by the then-chairs of the two major parties, operates as a private oligarchy of the two parties to control access to the debates.
The debates were once the province of the League of Women Voters, which did not let the two parties dictate the terms. Since 1988, the two parties have used secret contracts to determine how the debates will unfold between them, and the commission sets the non-inclusive rules, which continue to keep third-party and independent contenders out.
The Commission on Presidential Debates has set the barriers to entry so high (mathematical viability and 15 percent average ratings in five pre-debate polls of its choosing by a certain date) that no third-party candidate can get in. According to OpenDebates.org, since 1960 "not a single third-party candidate and only one independent candidate (John B. Anderson) has reached 15 percent in pre-debate polls."
The commission may also change the criteria, which it considers to be "objective." Two lawsuits are challenging the commission anew this cycle, one under the antitrust laws. No lawsuit has succeeded in the recent past, and no matter how much money a challenger, such as a Mike Bloomberg type, may have, unless he buys ballot access and moves poll numbers quickly enough, he still cannot necessarily overcome the partisan administration of the elections or the undemocratic premise of the Commission on Presidential Debates, and the resulting lack of opportunity of challengers to be seen onstage by tens of millions of voters in the presidential debates during the general election season.
Having said all that, here is the part that is entirely possible: Organized and dedicated people could band together and support existing groups. (There are several of them, such as Fair Vote, Open Debates, the Campaign Legal Center, statewide ballot access reform groups, Citizens in Charge, and the Center for Competitive Democracy — I'm on the boards of the latter two.) They could also work for election reform in between elections, not just whine about our broken system in a year when more voters than usual can barely believe their likely options for leader of the free world.
All it takes for nothing to change is for voters to keep voting for the "least worst" major party candidate instead of voting for someone who represents their choice and who has earned their respect and their votes.
If the American people keep failing to change our 18th-century voting regime, the two-party, winner-take-all system will remain and continue to render choices unpalatable to the majority of Americans with mounting desperation, when neither party nominee is within nose-holding tolerance. The consequences for our collective futures should not be underestimated.
Theresa Amato was the national presidential campaign manager and in-house counsel for Ralph Nader in 2000, and the national presidential campaign manager and general counsel of Nader 2004. The Nader 2000 campaign produced the largest progressive third-party vote since 1924, starting in late February, with a handful of people and $40,000. Amato, the author of Grand Illusion, the Myth of Voter Choice in a Two-Party Tyranny (New Press 2009), is not running any campaign this year.