A Rigged System

You shouldn't need to hire a team of lawyers to run for Congress.

Radley Balko | November 5, 2008

Those of you voting in Louisiana or Connecticut this week won't have the option of voting for Libertarian Party candidate Bob Barr for president. In both states, Barr's campaign insists it had more than enough signatures to put his name on the ballot. But in Louisiana, the courts determined that Barr's campaign missed the filing deadline. That was in part because state offices were closed the week of the deadline, due to Hurricane Gustav. No matter. A federal court determined it would be too expensive to reprint the state ballots to include Barr's name.

In Connecticut, state officials initially said the Barr campaign came up about 500 names short of the 7,500 signatures required to put Barr's name on the ballot. They later acknowledged that they had made an additional error. Barr was only 321 names shy of the minimum. The state then admitted that state officials had actually lost 119 pages of signatures—almost certainly enough to put Barr over the top. Nevertheless, a U.S. District Court judge ruled that Barr would not be on the ballot, citing testimony from Connecticut officials that it would be "nearly impossible" to reprint the ballots to include him.

Meanwhile, in Texas, the tables were turned. Both the Republican and Democratic parties somehow missed that state's deadline to include Sen. Barack Obama (D-Ill.) and Sen. John McCain (R-Ariz.) on the Texas ballot. Barr's campaign sued, noting the equal protection problems with allowing the two major parties to skirt campaign rules while holding third party candidates to the letter of the law. Barr was right—Obama and McCain should have been kept off the Texas ballot. But Barr's suit was dismissed by the Texas Supreme Court without comment. Apparently, the Democratic and Republican parties are, to borrow a now-tired phrase, "too big to fail." They're allowed to break the rules.

Bob Barr has no chance of winning the election. But regardless of what you may think of his politics, or that of third-party candidates like Ralph Nader or Chuck Baldwin, this system is rigged. The two major parties have effectively cemented their grip on power by creating laws that make it virtually impossible for upstarts to compete with them. They have done with campaign laws what federal business regulations tend to do in the private sector—protect the behemoth, entrenched dinosaurs that dominate the industry by making it too expensive and difficult for anyone to challenge them.

In addition to ballot access laws, consider campaign finance rules. In his recent special "The Politically Incorrect Guide to Politics," ABC News reporter John Stossel profiled Ada Fisher, a woman attempting a low-budget, longshot run for Congress in North Carolina with a staff of volunteers. She found it impossible to comply with the election law without hiring a team of lawyers—which of course, she couldn't afford. Written in small print, single-spaced, Stossel found that the federal election code spans one-and-a-half football fields. Eventually, Fisher and her volunteer campaign treasurer were personally fined $10,000 by the FEC for filling late reports.

Stossel then cut to University of Missouri Professor Jeff Milyo, who ran an experiment in which he asked dozens of college-educated people to try to fill out various campaign finance forms and applications. Of the more than 200 people Milyo tested, Stossel reported, "every one of them violated the law." One participant added, "I'd rather not participate in the political process if it means I have to go through the nonsense I went through today."

That's exactly what the two major parties and the incumbents in Congress had in mind. Come up through their party structure, and you'll have a team of lawyers to help guide you through the process. Challenge them from the outside, and the laws they designed will cripple your candidacy.

Consider these two figures: Congress' approval rating right now is a dismal 19 percent. Clearly, we aren't happy with the people who are governing us. Yet 90-95 percent of the incumbents running for re-election to Congress can expect to win on any given election night. Many run unopposed. Between gerrymandering their districts to ensure a friendly electorate, campaign finance legislation, debate rules that effectively bar third-party participants, onerous ballot access rules, and the privileges of office, the Democrats and Republicans have ensured that the vast majority of the country will chose only between one of two candidates this year—candidates who, when it comes right down to it, really aren't all that different.

The system we have now selects for the sorts of people who want to make a career of politics. If, in order to successfully run for high office, you have to spend years culling favors and working your way up through one of the two major parties, the winners in this game are going to be the party loyalists and power-hungry climbers who couldn't hack it in the private sector—frankly, the last personality type we want governing.

It ought to be much easier to run for office. As it is now, the first task of anyone challenging an incumbent for federal office is to raise enough money to hire a team of lawyers to ensure that they're complying with election laws. There's something sordid about that.

It's difficult enough to raise enough money to mount a credible challenge that overcomes the name recognition and other advantages of incumbency. Congress then continually adds to that the enormous costs of navigating more and more layers of an expensive and confusing web of legalese. Perversely, defenders of these complex laws then justify them under the guise of "getting the influence of money out of politics."

How clever of them. What they're really doing is ensuring that incumbents stay in office, and that one of the two same-ish major parties always remains in power.

Radley Balko is a senior editor of reason. A version of this article originally appeared at FoxNews.com.

Comments

|11.5.08 @ 12:04PM|#

This is an issue that needs to get more attention. I was really pleased with Stossel including it in his latest special.

After 30 years of ever more draconian controls on the ability of Americans to organize and expend resources on political speech, the evidence is conclusive. These laws do absolutely nothing to reduce corruption. If anything, they make it worse.

Lefiti|11.5.08 @ 12:09PM|#

"The two major parties, writes Radley Balko, have cemented their grip on power by creating laws that make it virtually impossible for upstarts to compete with them."

Of course, it doesn't help that the upstarts are usually moronic zealots for wingnut lost causes. Nothing personal.

Elemenope|11.5.08 @ 12:12PM|#

Duverger's Law.

It really is that simple. If one wanted to break the two-party system, one would have to institute a voting regime other than first-past-the-post balloting.

|11.5.08 @ 12:17PM|#

I don't necessarily have a problem with the two party system. I do have a problem with the campaign finance laws and the virtual impossibility of having citizen legislators anymore. You just can't take some time off from your life and go run for office. To hold any office of significance, you must be a career politician.

Who really wants to be that? Most successful and smart people have other pursuits and don't want to spend their lives as politicians. Worse yet, whenever something becomes a profession you become wedded to it. Once government is your profession you can't help but have an institutional bias towards government sollutions. How can you not, government is what you do. That is why even the most conservative politician eventually gets seduced into big government thinking.

The founders intended our government to be a part time thing. It is supposed to be kind of like a public service sabatical where citizens take a few years off their normal pursuits and act as legislators and go home. Once it became a full time career, we were doomed.

|11.5.08 @ 12:29PM|#

To hold any office of significance, you must be a career politician.

Who really wants to be that?

Mediocre-minded control freaks.

Elemenope|11.5.08 @ 12:31PM|#

The founders intended our government to be a part time thing. It is supposed to be kind of like a public service sabbatical where citizens take a few years off their normal pursuits and act as legislators and go home. Once it became a full time career, we were doomed.

FWIW, with a country that has 10x more people, 5x more land, world-class military and security concerns, and technologies that would have caused Benjamin Franklin to blow his brain out his nose were he able to witness them...we don't live in the world that allowed for the luxury of part-time government.

*Even a minimal state* in this world requires full-time management.

|11.5.08 @ 12:32PM|#

Regarding Duverger's Law, the Constitution doesn't say representatives have to be elected in first-past-the-post constituencies, does it? It just says congressmen have to be apportioned to states based on population.

Unless there's a federal law requiring states to indulge in gerrymandering every ten years, I don't understand why individual states couldn't--in theory--implement proportional voting for the House, abolishing districts. It's not as if doing so threatens "one man, one vote" or the existence of republican government.

The problem with proportional representation, of course, is that it empowers parties over independent candidates. It isn't as if the status quo is a great boon to unaffiliated candidates, though.

If anyone knows what in our system hardwires districting, I'd be grateful to know.

|11.5.08 @ 12:34PM|#

That's exactly what the two major parties and the incumbents in Congress had in mind. Come up through their party structure, and you'll have a team of lawyers to help guide you through the process. Challenge them from the outside, and the laws they designed will cripple your candidacy.

Yet idiots who support all of these inane campaign rules that reward the Dems and GOP abound. They claim it makes the political process more honest and fairer. The disconnect between the purported aim of cleaning up the system and reality of entrenched, corrupt, bought and paid for political parties is astounding.

My respect for my fellow citizens intelligence, not very high to begin with, decreases daily.

Elemenope|11.5.08 @ 12:39PM|#

some fed --

You are right that proportional rep. and voting system ingenuity is not prohibited right-out by the US Con. IIRC, some local races actually use alternate voting systems, though none statewide that I'm aware of.

|11.5.08 @ 12:45PM|#

J sub D,

Against stupidity. . . .

classwarrior|11.5.08 @ 12:45PM|#

Time to try a parliamentary system with some proportional representation and a simplified form of matching public financing.

Republican|11.5.08 @ 12:48PM|#

* Sigh *

FWIW|11.5.08 @ 12:49PM|#

Texas went for McCain, so even if McCain electors were thrown out in favor of Barr's, it just so happens it wouldn't have changed the election.

adrian|11.5.08 @ 12:58PM|#

i think it's time we found a new system. democracy will always end with the majority voting themselves more handouts until there is nothing left to hand out.

|11.5.08 @ 1:09PM|#

Mediocre-minded control freaks.

And indeed a mediocre-minded control freak beat another mediocre-minded control freak for control of our lives last night.

|11.5.08 @ 1:19PM|#

I'm with J sub D here. Nobody gives a shit. 999 people out of a thousand think that the choice is between Republocrat and Demican. And anything else is a waste of time. Unless they've got a cult of personality going for them.

Brian |11.5.08 @ 1:19PM|#

Yes, like anything else having to do with government, election law is full of red tape. Bob Barr was unquestionably right about the filing deadline in Texas. However, America is different than other modern democracies in that we have single member representative districts. Parties gain and loose power, realign and die out but there has never been more than two strong parties in America. If third parties ever gain any traction they are invariably absorbed by one of the two larger parties. In order to change the two party system you have to change the way representatives are elected. Changing election law will not do it.

|11.5.08 @ 1:22PM|#

"FWIW, with a country that has 10x more people, 5x more land, world-class military and security concerns, and technologies that would have caused Benjamin Franklin to blow his brain out his nose were he able to witness them...we don't live in the world that allowed for the luxury of part-time government."


That is why we have bureaucrats for institutional knowledge. I was thinking more of the political class. They need to be part time in that they do politics for a few years and go back to real life. Hanging around in politics doesn't make you better at running the government. If that were true Barney Franks and Chris Dodd would have been all over the Fannie and Freddie problem. It is not and as Franks and Dodds show, the longer you hang around the more likly you are to steal.

Can anyone here say with a straight face that our "professional politicians" are doing such a great job that we can't let the amateurs in?

I didn't think so.

Elemenope|11.5.08 @ 1:31PM|#

John --

I agree that "professionals" in this particular area haven't shown themselves to become more astute with greater experience. But that sounds better as a term-limits argument than as a part-time politician argument.

I, for one, want a person to have their whole mind on the job, and then wouldn't mind them being term-limited so that the inevitable corruption of perspective doesn't get institutionalized.

Elemenope|11.5.08 @ 1:32PM|#

999 people out of a thousand think that the choice is between Republocrat and Demican.

uh, given present data, you seem to be off by a factor of ten or so.

|11.5.08 @ 1:39PM|#

Career politicians are a major problem. Term limits are part of the answer, but the bigger issue is limiting their power in the first place. Not much chance of that now, so the girth of Leviathan will continue its unfettered growth. Bush, Obama, what's the difference? They may trash my liberties in somewhat different ways (though not as different as partisans of either side want to believe), but, in the end, trash my liberties they have. And will.

|11.5.08 @ 1:47PM|#

Elemenope,

When I say "part time" I don't mean that they keep their day jobs. I mean that we have a political system where successful people from other fields can run, serve for a few years, and then go back to their day jobs. Term limits would certainly help that by creating openings in the system.

I look at someone like my self. I would love to go down and try to be a state senator or something. I am a good public speaker and can occasionally look the part. It would be a blast to go run for some state office. But there is no way in hell that I am going to go down and kiss the ass of the local political machine necessary to do that. There is also no way I could quit my job and make politics my full time passion and life.

I think probably the best most competant people we could have never run for office because doing so requires a commitment of years of your life and an abandonment of any career beyond politics. The country is much worse off for that being so.

Elemenope|11.5.08 @ 1:54PM|#

When I say "part time" I don't mean that they keep their day jobs. I mean that we have a political system where successful people from other fields can run, serve for a few years, and then go back to their day jobs.

Ah. It *does* mean that here in RI. Most of our state politicians at the legislative level are literally part-time legislators, who hold down another job, as the legislature does not pay a salary large enough to feed a family of four, never mind entice people to work full-time at being a legislator. Hence my misunderstanding of your point.

|11.5.08 @ 2:00PM|#

Elemenope,

Apparantly Rahm Emanuel is going to be the Dear Leader's Chief of Staff. He loves universal service. From his book

"Universal Citizen Service

If you forget everything else you read in these pages, please remember this: The Plan starts with you. If your leaders aren't challenging you to do your part, they aren't doing theirs. We need a real Patriot Act that brings out the patriot in all of us by establishing, for the first time, an ethic of universal citizen service."

http://volokh.com/posts/1225908208.shtml

Are you ready to joing the Obama Youth? Do you think they will give us cool uniforms? I wonder if I can be a block leader or something.

Elemenope|11.5.08 @ 2:15PM|#

John,

So far as I can tell, the Rahm rumor is just that. A rumor.

And comparing William James/John Dewey style Nat'l service with blackshirts is just a tad distasteful.

|11.5.08 @ 2:18PM|#

'And comparing William James/John Dewey style Nat'l service with blackshirts is just a tad distasteful."

Forced service is forced service. I am not a slave to the state and neither are my children. If they ever got such a crackpot program through, I would hope you would see mass civil disobedience to it. If people are not willing to refuse to be enslaved by the state, then they are unworthy of their freedoms.

|11.5.08 @ 2:31PM|#

If anyone asks me to give back to the community or to pitch in to a national effort, I'm going to steal this line from Jack Burton:

When some wild-eyed, eight-foot-tall Obamaniac grabs your neck, taps the back of your favorite head up against the barroom wall, and he looks you crooked in the eye and he asks you if ya paid your dues, you just stare that big sucker right back in the eye, and you remember what ol' Pro Libertate always says at a time like that: "Have ya paid your dues, Pro?" "Yessir, the tax check is in the mail."

Seward|11.5.08 @ 2:49PM|#

Elemenope,

My response is why do we need a centralized, government sponsored approach to "service?"

As for forced service, well, that is something that any person who values individual autonomy would be opposed to, no matter how benign that forced service is.

Elemenope|11.5.08 @ 2:51PM|#

I am not a slave to the state and neither are my children.

That's an excellent point. Your children are slaves *to you*. Who is the state to think they can cut in on that action?!

All shrillness and snark aside, every nat'l service plan I've ever seen was voluntary, and the closest it got to an imposition was the idea it would be tied to college loan money (much like selective service is now, I might add).

Elemenope|11.5.08 @ 2:52PM|#

My response is why do we need a centralized, government sponsored approach to "service?"

We don't. I don't think it is the most efficient way to go about it. And I oppose any national service program that isn't 100% voluntary.

Seward|11.5.08 @ 2:59PM|#

Elemenope,

I suspect that as long it remains voluntary it will also remain rarely used (in the grand scheme of choices that individuals make).

Sort of as an aside to the whole service issue I'll note that roughly the same amount of people voted in this election as did in 2004. Those totals were higher than the turnout in 2000 though.

Sam Grove|11.5.08 @ 3:03PM|#

Yet idiots who support all of these inane campaign rules that reward the Dems and GOP abound.

They are mostly Dems and GOPers anyhow, so maybe they aren't so dumb.

some dude|11.5.08 @ 3:11PM|#

Will someone figure out how the bailout vote went? (How many congresscritters who voted for the bailout lost.)

I don't want to do the legwork. Thanx.

|11.5.08 @ 3:26PM|#

My representative (Gus Bilirakis) voted against the bailout. I voted for him for doing so, and he won. I voted against him when he was first elected, so his sanity on the bailout helped him get one new vote.

|11.5.08 @ 3:26PM|#

selective service is repulsive - which is why I never registered.

|11.5.08 @ 3:50PM|#

According to exit polls 58% of the voters were against the bailout. If McCain had really been a "Maverick", he would have told Bush, Paulson, and the MSM to fuck themselves and refused to support it. It probably would have won him the election. He was up by six or seven point right after the conventions. He lost it when the banks failed and he ran to Washington to push the bailout. Dear Leader was smarter and kept his head down and voted "present". McCain couldn't do that, but he could have come out against it.

Seward|11.5.08 @ 4:18PM|#

John,

I would have voted for McCain if he had opposed the bailout (and any future bailouts).

Lil\' Jimmy|11.5.08 @ 4:20PM|#

Options:

1) I guess we should just bitch about it

2) Move to New Hampshire. 621 people already there only 19,379 to go ;)

3) Get a time machine and go back to the late 1700's.

4) Just admit you are a big government conservative

5) Just admit you are a big government socialist

6) Click your heels 3 times

Usually what happens is a lot of 1 followed by a 4 or 5 at some point.

Ironic|11.5.08 @ 4:22PM|#

RUn-Off elections would help greatly. It would remove the "throw away my vote" argument. IRV would be fine but the idiots who think a vote for Buchanon is a vote for Gore might find it confusing.

|11.5.08 @ 4:23PM|#

McCain could not come out against the bailout because he approves of it. It is the kind of Big Government plan that he loves. Ok, he probably disagreed with a few of the particulars but it just the kind of thing Mr McCain/Feingold, Medicare Part D, McAmnesty could throw his weight behind. Because in the end he believes in the power of the government to do good. No doubt, He could say "I'm from the government. I'm here to help." with a straight face.

Also as Perot could have told him NEVER suspend your campaign Americans believe "The show must go on" anything else looks like weakness.

Seward|11.5.08 @ 4:27PM|#

Lil' Jimmy,

A lot of libertarians see the role of libertarianism as a reminder that government isn't the solution to everything. Neither your average liberal nor conservative really get that so they need to reminded of it from time to time. That is a "hopeful" way to view libertarianism, and a useful one.

|11.5.08 @ 5:04PM|#

JParker,

Indeed. I think libertarians should keep in mind that, despite the mandate-a-thon we'll be hearing about for much of the next year, this election had a lot more to do about distaste for Bush and a desire for any change to improve the economic situation than any real shift to the left. There are plenty of signs that a more libertarian candidate can succeed at the Congressional and presidential level. A Mark Sanford might very well have won this time around, if nominated.

rhywun|11.5.08 @ 5:19PM|#

I only voted last night (for the first time in 4 years) under the condition that from now on I will only vote 3rd party.

What I want to know is, if "big money influence" is not the problem, why is it that in countries where lots of third parties do well, the elections are publicly financed? See: Canada. If public financing is really protection for incumbents, why does it seem that America's incumbents are the most entrenched of all?

|11.5.08 @ 5:49PM|#

A lot of libertarians see the role of libertarianism as a reminder that government isn't the solution to everything.

Cosign 7X. QFT.

economist|11.5.08 @ 5:59PM|#

This is a great thing to write about right after an election in which the new Congress will have a strong interest in protecting its incumbency come next election season /sarcasm.

economist|11.5.08 @ 6:00PM|#

DOOOOOOOOOOOOOOOOM!
DOOOOOOOOOOOOOOOOM!
DOOOOOOOOOOOOOOOOM!

perilisk|11.5.08 @ 9:07PM|#

"I agree that "professionals" in this particular area haven't shown themselves to become more astute with greater experience. But that sounds better as a term-limits argument than as a part-time politician argument.

I, for one, want a person to have their whole mind on the job, and then wouldn't mind them being term-limited so that the inevitable corruption of perspective doesn't get institutionalized."

Although we use the term 'career politician', it's more of a title than a job. When this country was founded, it -was- a job. They showed up for work for a day, they got paid for a day. Unlike today, where several of these guys basically kept getting paid while they flew around trying to get a better job. Maybe if we got back to having Congressmen (and Presidents, etc.) punching a clock like everyone else, they would act more like civil servants (no worse than DMV employees, at least) and less like aristocrats.

Wicks Cherrycoke|11.6.08 @ 7:56AM|#

To underscore the point of the article, one can also cite the New Jersey Supreme Court decision six years ago that allowed the Democrats to replace John Torricelli with Frank Lautenberg as a Senate candidate even though the statutory deadline for candidate changes had expired. The Democrats piously claimed that the voters were entitled to a "choice." NJ's third parties (including the Libertarians if I recall correctly) pointed out that there were other "choices" on the ballot. The NJ Sup Ct expressly held that under NJ's election law, the GOP and Dems enjoyed favored positions and that voters were entitled to a "choice" from among the two of them, so that Lautenberg could be added notwithstanding what the law said.

|11.6.08 @ 8:40AM|#

"2) Move to New Hampshire. 621 people already there only 19,379 to go ;)"

Lil Jimmy, in case you haven't noticed, NH is firmly in the hands of statist dems, enacted its 'we know what's good for you smoking bans' a while back, and if memory serves, doesn't have a discount liquor store in the whole place.

No place left to go, if we can't fix our mess give up and be assimilated, resistance may be futile....

creative parsimony|11.6.08 @ 11:26AM|#

A two party monopoly? That's a duopoly, moron.

MANIAC|11.6.08 @ 11:26AM|#

OK... so the government is corrupt and we cant fix it from within the system because the corruption is self-perpetuating.

So the question becomes:
When, exactly, is revolution justified?

Alan Augustson|11.6.08 @ 12:14PM|#

Sorry, am I late? Been busy losing a Congressional election. To Rahm Emanuel.

> OK... so the government is corrupt and we cant fix
> it from within the system because the corruption is
> self-perpetuating.

> So the question becomes:
> When, exactly, is revolution justified?

Now-ish, I'd say. Best of luck with that, though, when the public is in Obama-afterglow.

|11.6.08 @ 2:10PM|#

I want to thank Reason for all their good support of Ron Paul and his libertarian leaning philosophy this campaign season. (sarcasm off) Burn in hell.

|11.6.08 @ 9:15PM|#

*Even a minimal state* in this world requires full-time management.

There's a big difference between full-time management and full-career management. You do the job full time for a defined term, then you leave. That's the reason we laud George Washington for serving only two terms and then voluntary leaving office. (And why FDR will always deserve a black mark in the book of history for breaking this tradition.)

Also, why not simply print the ballots at the polling station? It's not like we don't have the technology to do it...

|11.6.08 @ 9:16PM|#

Proportional representation and parliamentary systems give even more power to political parties over individual candidates. We should not adopt them here. We should stick to one candidate elected from one district. That individual candidate is always accountable to voters in her district. This is much better than candidates elected from a party slate, where those candidates are selected by the party machine and accountable only to it.

However, there is no constitutional prohibition to getting rid of the first-past-the-post ballot system. I would love to see some version of Instant Runoff Voting (IRV). It would make voters much more ready to look at third party candidates if they were sure that they could cast a second place vote for a major party candidate. Since many elections are decided with under 60% winning vote, this has the potential to dramatically change our political landscape.

However, IRV advocates should start small, with local non-partisan elections for Mayor and such. As the electorate and candidate pool gets comfortable with the concept, IRV can be expanded over several election cycles, and ultimately up to the Presidential election where the electors for each state could still be all won or all lost in IRV.

The Federal Constitution largely delegates the conduct of elections to the states, subject to some regulations that Congress prescribes for federal elections. As far as I know, nothing prevents the states from experimenting with IRV.

Ben1|11.11.08 @ 9:35PM|#

Well, look... the sheep are finally beginning to understand that lovely smell is... mutton.