2000 Campaign Report

2. What we're up against

by Harry Browne

Most Libertarians don't understand what we as a party are up against. They think we can make a big breakthrough if we just do this or do that — get a celebrity candidate, speak at colleges, go to the inner cities, change our message, stage the right kind of media events, take matching funds, whatever.

While many activities can contribute to the growth of the LP and to the spread of libertarian ideas, we must understand that an electoral breakthrough is close to impossible under the current legal circumstances.

It isn't that we are doomed to irrelevance forever. But we can't expect to make a breakthrough until we understand the legal obstacles in our path and do something to remove them. And without this understanding, any appraisal of federal campaigns, past, present, or future — runs the risk of missing the point.

TWO-PARTY NATION

America today is without question a two-party country. But it isn't that way because public opinion has demanded it, because it is more convenient to have only two parties, or because there is any inherent benefit to the country.

America is a two-party nation because the politicians have used the force of government to make it so.

The Republicans and Democrats have imposed the two-party system on us with five major types of laws. These laws not only place direct obstacles to electoral breakthroughs, they also affect the way the media perceives us and the way the public perceives us — thus creating three layers of resistance to Libertarian breakthroughs.

LEGAL OBSTACLES

The first layer consists of the direct legal obstacles — the five types of laws — the Republicans and Democrats have put in our path.

1. Donation Limits

Federal campaign laws limit the size of a donation an individual can make directly to a federal campaign (presidential, Congressional, Senatorial) to $1,000 prior to the party's nomination and $1,000 after the nomination.

This isn't a big problem for incumbents. They get enormous free publicity, so they need less money for advertising. And special-interest groups are glad to fund-raise on their behalf, presenting incumbents with $50,000 or more in $1,000 donations they've bundled from their members. These groups will do this for an incumbent, but not for us, because the incumbent is in a position to provide favors in return — immediately and in the future.

The contribution limits are even less of a hurdle for Senators and Congressmen who chair committees — people like, not surprisingly, Senator John McCain. Political Action Committees, corporations, and individuals line up to contribute or provide in-kind help in order to obtain access to a committee chairman, in the hope of passing pet legislation or warding off bills that are dangerous to their own interests.

And, of course, incumbents get to use millions of dollars worth of government facilities that we pay for — TV studios, free postage, press releases issued by their Congressional committees trumpeting their achievements, and much more. This keeps their names in front of the voters.

In other words, the campaign finance laws are not a large inconvenience for the Republicans and Democrats, since they have so many other ways to acquire campaign funds and to get their messages to the voters.

But for us, those laws are a hurdle that's virtually insurmountable. As has been pointed out, raising money with a $1,000 limit is like trying to use a teaspoon to fill a swimming pool.

Imagine, instead, a world without these laws. Our presidential candidate is being interviewed on TV. Someone hears him and says to himself, "This is what I've believed and wanted for as long as I can remember." He immediately sits down and writes a $1 million check and sends it to the presidential campaign — or to a Congressional campaign or to the party itself.

Or imagine hundreds of people seeing such interviews and each deciding to send $5,000 or $50,000.

Would we then be sitting around trying to invent magic bullets designed to get our message heard?

2. Reporting Laws

Because virtually all campaign donations must be reported, major donors can be afraid to finance anyone who challenges the existing two-party system.

(The disclosure laws also inspire many wealthy interests to donate to both Republican and Democratic candidates — so as not to be vulnerable to the retribution that could come from donating only to the party that happens to lose the election.)

There is no practical, ethical, or historical reason to make the reporting of donations mandatory. Each candidate should decide for himself what his reporting policy will be. Every voter can then consider that policy when deciding whether to vote for him.

If a voter thinks reporting is important, he can reject a candidate who won't say where his campaign money comes from. If the voter doesn't think reporting is important, he can ignore the matter (as most would), and let the candidate put his limited resources into transmitting his views and proposals — rather than into filling out endless government forms.

The idea that "full disclosure" should be mandatory is just one more way politicians and reformers impose their own values and interests on everyone else. In this, as in financial and personal matters, why shouldn't each person decide for himself what he wants from candidates?

There is a long American tradition of anonymity in political activity. The Federalist Papers were published under a pseudonym. And there were virtually no disclosure laws for federal campaigns until the Watergate era. Before the Democrats decided to beat up on Richard Nixon in 1973, most people assumed it was no one's business whom you gave money to — just as it was no one's business whom you voted for.

But, as with so many things, constant repetition has led to the near-universal assumption that "full disclosure" is some sort of virtue.

Reporting campaign donations in the format required by the Federal Election Commission (FEC) is an onerous task — requiring enormous amounts of time, money, and trouble. Congressional candidates from a major party can more easily afford to pay to have that done — or a candidate's party will take care of the reporting for him.

But for many third-party candidates working on shoestring budgets, there is a major incentive to avoid reporting altogether. Since the reporting requirement for federal candidates kicks in at $5,000, a Congressional candidate of a smaller party has good reason to stop raising money before he reaches $5,000. But how can he run a competitive (or even visible) race with $4,800 against candidates who have $100,000 or more at their disposal?

The reporting laws are wrong in and of themselves. But they are especially damaging to third parties. There are many people in America who are wealthy, libertarian at heart, and aware of the LP. But a good many of them are vulnerable to the legislation and regulations of the federal government. If their contributions to third parties have to be reported, they can fear (rightly or wrongly) that their businesses will suffer.

Imagine what it would be like if, say, a rich libertarian oilman could contribute a large sum of money to the LP or an LP candidate without antagonizing his Republican political friends — some of whom hold enormous power over the future of his oil business.

3. Campaign Subsidies

The Democrats and Republicans use your tax money to subsidize their presidential campaigns.

For the 2000 general election, George W. Bush (R) and Al Gore (D) each took $67.6 million out of the U.S. Treasury. This was in addition to millions of tax dollars given to Al Gore as matching funds in the primaries. (George Bush turned down the primary subsidy in order to avoid being subject to spending limits, but he gladly accepted the general-election subsidy.)

In addition, your tax dollars were spent on their nominating conventions.

The general-election subsidies are limited to parties that received 5% or more of the vote in the previous presidential election. This enabled the Reform Party to get $12.5 million in 2000. Even if an LP candidate were to get 5% of the presidential vote, qualifying the next Libertarian candidate for the subsidy, most LP members probably would want the candidate to turn down the subsidy.

(For us to get 5% in the first place would require, under the present system, a billionaire like Ross Perot as the candidate, and that would mean nominating someone whose libertarian principles might be a lot less firm than those of the candidates we've had since the party's founding.)

So the Democrats and Republicans in Congress awarded $67.6 million of our money to each of their parties, available with no fund-raising cost whatsoever, to be spent freely on their campaigns — while we tried to raise money $1,000 at a time.

Imagine, instead, that the Republicans and Democrats had to rely entirely on personal fund-raising just as we do. With no limits on campaign donations, they would undoubtedly raise more money than we would — at least at first. But they would have to divert a lot of their resources to the task, just as we do now. They would no longer have a free fund-raising ride throughout the general election season.

4. The Debate Commission

It's easy to believe the presidential TV debates are a private undertaking whose organizers have simply decided to exclude us. But that isn't true.

It was necessary for Republicans and Democrats in Congress to pass laws to make the debates possible in their present form. To finance the debates, corporations were granted special exemptions from the current laws that prohibit them from sponsoring political advocacy. And unlike normal campaign donations, the contributions were even tax-deductible(!).

The Republicans and Democrats decreed by law that the Debate Commission would consist of an equal number of Democrats and Republicans, but no one else.

The Commission then decided to limit participation in the debates to (surprise!) just the Republican and Democratic candidates. So millions of Americans were shown that there were only two presidential candidates who should be considered seriously.

Because such debates could be sponsored only through special legislation, control of the debates was completely in the hands of the politicians — not the TV networks.

Imagine instead a situation in which there were no campaign finance laws. Without the special legislation necessary to sponsor the debates, it's reasonable to assume that some sponsors and TV networks (broadcast or cable) would want to stage at least one debate involving more than just the two main candidates — and would give a hard time to a Republican or Democrat who refused to show up.

In the last election, that would have meant one or more of the debates would have included at least Ralph Nader and Pat Buchanan — and, given our equality with Pat Buchanan in the polls, I probably would have been invited as well.

Imagine having a Libertarian in even one presidential debate with the main candidates. Imagine the Libertarian telling people that they could be free of the income tax entirely, that they should be allowed completely out of Social Security, that there's a candidate who wants to end the insane War on Drugs.

It would be a breakthrough of immense proportions. Millions of Americans would see that there's a party that wants them to be free to live their lives as they think best, not as the politicians command them to live.

It would give the LP credibility beyond anything we can get through other means. It would mean the public would take us far more seriously than it does now.

Look how getting into the Minnesota debates in 1998 changed Jesse Ventura's political fortunes. And he was offering people far less than a Libertarian candidate would.

5. Ballot Access Barriers

As you've been made painfully aware over the years, Republicans and Democrats also pass laws at the state level to make it difficult and expensive for third-party candidates to get on the ballot.

(There are no federal laws governing ballot access. Each state sets its own rules — even for federal offices.)

In some states, third-party candidates are required to obtain far more petition signatures and/or post much larger filing fees than are required for Democratic and Republican candidates.

Thus, after having fewer funds to begin with, a third-party candidate must waste some of them posting a large filing fee, and then he must use even more of his resources to obtain a large number of signatures.

There are states where Republicans and Democrats are listed on the ballot as "Republican" or "Democrat" but any third-party candidate is designated as "Independent." Thus someone who wants to vote Libertarian has no way of knowing which candidate is the Libertarian. And he won't want to risk guessing because he has no way of knowing if a given "Independent" belongs to a white supremacist, Communist, or Prohibitionist party.

Imagine, instead, what it would be like if all states had ballot-access laws similar to what Libertarians were able to enact in Colorado in 1998. There now are no filing fees at all, and Libertarian candidates get on the ballot automatically (labeled as "Libertarian") if nominated at the party's state convention.

In 2000 this allowed Libertarians to run candidates in 57 of the 65 State House races, 17 of the 35 State Senate races, and in all 6 Congressional districts. Libertarians obtained 7.5% of all the votes cast in Colorado for State House races.

This kind of progress was possible because Colorado Libertarians no longer waste enormous resources getting petitions signed and posting exorbitant filing fees.

Imagine the difference if that were the case everywhere.

FEDERAL, STATE, AND LOCAL HURDLES

My descriptions of the legal hurdles mostly referred to candidates for federal offices.

However, similar laws are imposed as well on state and local candidates by state and local governments. Those laws limit donations to candidates, force the candidates to report donations, and in some cases subsidize Democratic and Republican candidates.

The legal obstacles at all levels of government put us at a severe disadvantage to the Republicans and Democrats. They make it harder for us to raise money and get on the ballot, while the Republicans and Democrats help themselves to our tax money (with no fund-raising costs), intimidate potential donors with reporting laws, and limit the national TV debates to just their candidates

MEDIA RESPONSE

These obstacles are bad enough in themselves. But they are just the first layer of resistance to a Libertarian breakthrough. The obstacles make the second layer of resistance — the inattention of the media — almost inevitable.

Journalists, newscasters, and TV pundits may never have identified the legal situation in the way I've laid it out here. But it is plain to them that no one but a Republican or Democrat has much chance to win the Presidency (or most any other partisan office). So it stands to reason that they don't bother giving us much press coverage.

Because of their celebrity, Ralph Nader and Pat Buchanan received many times the coverage we did in 2000. But even what they received was minuscule compared to the coverage lavished on Al Gore and George Bush.

There is nothing mysterious about this. There is no gigantic "media conspiracy" to keep us out of the public eye. The people in the media are simply responding to the situation imposed by force by the Republicans and Democrats in Congress.

If I were an editor, I can't imagine that I'd devote anywhere near the same coverage to a third-party candidate that I'd give to the Republican or Democrat — given the way the legal hurdles have made a third-party victory so unlikely.

Consequently, third-party challengers can't get their message to the public as easily as the Democrats and Republicans can. This is ironic, since it is the third-party challengers who actually have a message of some kind, while the Democrats and Republicans engage more in character assassination.

Thus a presidential campaign isn't even as useful as we'd like for party-building or to spread libertarian ideas. We simply aren't going to get very much press coverage so long as the campaign laws are stacked against us.

At the national and local level, we usually get no news coverage whatsoever. And from most shows and publications we get only what I call the "one obligatory interview" — the single interview with which a media outlet can feel it has discharged its presumed duty to present all sides.

We were fortunate in 2000 in getting repeat appearances on a number of national TV and radio shows. But others — such as "Meet the Press" — considered their duty done when they crammed me into a single show with Howard Phillips and John Hagelin. And we were never covered by anyone as a news item.

Imagine, however, what it would be like if all parties were on an equal legal footing for financing and ballot access. The media would have good reason to pay more attention to parties like ours — even if at first they didn't give us nearly as much attention as they give to the Republicans and Democrats. I think the attention would grow fairly rapidly over time.

THE PUBLIC

Finally, because the campaign laws have given the media good reason to pay little attention to us, we face a third layer of resistance: The public has little reason to pay much attention to us either.

It isn't just that the public is less aware of us because of the limited TV exposure. The exposure we do get is much less effective — precisely because it's so limited. If you show up on TV less than 1% as often as Al Gore or George Bush, why should someone take you seriously as a candidate — even if that person agrees completely with what you say?

The people who hear our ideas and agree with them feel our efforts are futile — with good reason. And so they vote for the lesser of the two evils who have a chance to be elected. We hate that — hate it with a passion. But can you blame them?

Imagine, instead, that all parties were on a completely equal footing legally. Imagine, then, that the media knew that every candidate had a relatively equal chance, and so the media devoted considerably more attention to third parties than they do now — even if they still provided less coverage than for Republicans and Democrats.

Imagine, then, that people seeing us much more frequently on TV and in other media thought of us not as a sideshow but as serious contenders — if not to win the Presidency, at least to offer a medium through which to express the views they hold that the Republicans and Democrats ignore.

(One element of the wasted-vote syndrome that's usually overlooked is that people who know we can't win might still vote for us as an expression of their own beliefs — but only if they're sure our vote totals will be given wide publicity on election night. If we don't show up on TV much during the campaign, it's obvious that no one's likely to report our vote on election night. So what benefit does voting Libertarian provide for a voter who wants to make a statement?)

Imagine, too, what greater coverage for the presidential campaign could do for voters' attitudes toward voting Libertarian for lesser offices on the ballot.

WHAT WE FACE

All the big ideas in the world — for campaign messages and for gaining publicity — are unlikely to bear fruit so long as the legal obstacles remain in place. Those obstacles affect the media's perception of third parties, which in turn affects the public's perception of us.

It is why the most insignificant press conference called by a Republican or Democrat will be attended by at least a few journalists, while third-party press conferences draw one or two reporters — if even that.

It is why the protests we generate receive at most a line or two of coverage in the press, while poorly attended events staged by the major parties get front-page coverage.

It is why several dozen reporters and three TV networks will crowd into a small Iowa diner to watch George Bush flip pancakes, an event that reveals nothing of the kind of President George Bush might be — while none of those media people would think of showing up to cover a Libertarian candidate speaking to thousands of people at an anti-Drug-War rally.

And, perhaps most important, it is why people you know who agree far more with us than with the Republicans and Democrats will still vote for Democrats and Republicans — even though that encourages the winners to move even further away from a Libertarian America.

In 1992 Ross Perot was able to neutralize most of the obstacles. He began by telling Larry King that if (unnamed) people would get him on the ballot in all 50 states, he'd put $100 million of his own money into a campaign for the Presidency.

The promise was sufficient to get the media to take him seriously. In fact, the media took him so seriously and gave him such attention that he was actually leading in the polls at one point. In addition, the Republicans and Democrats felt they couldn't exclude him from the presidential debates without inviting scorn from the media. (When he got 19% of the vote in 1992, it pretty much guaranteed that the Republicans and Democrats would never let him in the 1996 debates.)

WHAT WE HAVE TO DO

To open up the political process and give all third parties a chance, we need to strike down all the current campaign finance laws — the laws restricting political donations and political spending, the laws subsidizing candidates, the laws requiring disclosure of contributions, the laws subsidizing the Debate Commission, and the ballot-access laws.

All these laws violate the U.S. Constitution. And they impose a two-party system on America by force. Obviously, they will never be repealed by Congress, because Congressmen are primary beneficiaries of the laws (and in fact are looking to make them even worse).

But it's possible that the laws will be nullified by a Supreme Court finding that they're unconstitutional.

That's why Perry Willis and I have initiated a lawsuit against the Federal Election Commission — designed to put the FEC out of business and to strike down all the laws I've described except the ballot-access laws (which are imposed at the state level). We've  recruited other plaintiffs as well. We expect the suit to be decided eventually by the Supreme Court.

And if the Court strikes down the federal obstacles, this will provide precedents that will strike down state and local obstacles as well — either immediately or later when those obstacles are challenged in court.

Only when the campaign laws are thrown out will we be able to compete for money in a way that begins to match the resources of the two old parties.

Only then will the media begin to take us seriously.

And only then will the public begin to think of us as serious contenders, worthy of their votes — even if they're not yet convinced we can win.

Understand that the lawsuit isn't a magic bullet that will catapult us into serious contention immediately. Even if the bad laws are thrown out, it will take time to build resources, media attention, and public awareness.

It isn't that winning the lawsuit will assure our victory. It is that victory is virtually impossible without winning the lawsuit.

Do We Have a Chance?

You may have heard or read an analysis claiming our suit has no chance to succeed. All well and good. Everyone is entitled to an opinion.

But understand some things:

  1. The Supreme Court has never ruled specifically on the issues we're bringing before it.

  2. Whenever something related in some way to our issues has come to the Court, one or more judges has expressed sympathy with our position. A majority of the members of the current court have already expressed some support for one or more parts of what we're trying to do.

  3. Many matters that today are settled Supreme Court doctrine had been ruled otherwise by previous Supreme Courts. To back off because no one has achieved this before would be the same as saying we should never run Congressional candidates because no Libertarian candidate has yet been elected to Congress.

  4. It doesn't matter if someone who says we can't win is a lawyer, a judge, a constitutional scholar, or anything else. He hasn't researched this case, and he isn't the one who's going to decide this case.

  5. The suit isn't an all-or-nothing proposition. The Supreme Court might let some of the laws stand while striking down some of the others. Declaring any part of the present system unconstitutional is a gain for our side. In addition, it's conceivable that the Court could allow all the current laws to remain but exempt smaller parties from them.

  6. Even if we win nothing in the suit, it's possible that it will generate publicity that can make more people aware of Libertarians. And it might help put today's campaign reformers (who want to make things even worse) on the defensive for a change.

We wouldn't undertake the lawsuit if we didn't think we had a chance to win. This doesn't mean we know we can win, only that we believe it's well worth the effort.

A tremendous amount of research has been done on this matter. Our attorneys have written some very valuable articles providing insights into our prospects.

As I said, I can't guarantee we'll win the suit. But we'll do the best we can. And if we don't start now to fight these unjust laws, when will we do so?

We can complain all we want about the media, but they aren't the root of the problem. Media people are acting in their own self-interest, given the legal situation as it exists, and as Libertarians we should be the last people to expect them to do otherwise.

We must continue to push for all the media coverage we can get, but we must also work to open up the political system itself.

We must also continue to work to build as large a Libertarian Party as we can. With more members, there will be more money available for races at all levels. And the more money that's available, the more advertising we can do — bypassing the journalists.

Our political campaigns — at all levels — have achieved a great deal in bringing the libertarian message to millions of people. I hope we win the lawsuit so that we can be more effective. But we should recognize all that's been achieved already, and not sit on our hands waiting for a legal victory.

(I'm grateful to ballot-access expert Richard Winger for reviewing this article before publication and making valuable suggestions. However, if any errors remain, they are my responsibility.)

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