Don’t expect Supreme Court to address party fractures

New York Times columnist David Brooks' Nov. 11 Op-Ed The Fever is Breaking ends with a quote from Irving Kristol, the "godfather of neoconservatism:" "People in our democracy 'are not uncommonly wise, but their experience tends to make them uncommonly sensible.'" He is talking about the recent election results and concludes: "The election of 2022 marked the moment when America began to put performance populism behind us. ...The single most important result of this election was the triumph of the normies."

Brooks also posits that "both parties are fundamentally weak," and suggests that they wake up to the voters' reality. Less elitism and intellectual intimidation. Less histrionic media soap opera. Less existential politics of menace. "Let's find people who can get stuff done," he suggests.

Populism is not new in this country but the systemic change it has attempted seldom lasts. One burst of populism in California in the early 1900s that caught on is the popular initiative, which allows the voters to enact laws without permission from the Legislature or Governor. But a recent article in this paper highlighted how even that time-tested voter empowering process is under attack by those who champion "efficiency" and "stability," that keeps the established political parties in charge.

Not so many years ago, President Ronald Reagan and House Speaker Thomas "Tip" O'Neill, who were fierce political rivals, were able to be civil with one another, and got stuff done.

And Richard Nixon conceded to John Fitzgerald Kennedy in 1960, notwithstanding plausible allegations of voter fraud, and went on to win in 1968. However, even his patience and persistence could not save him from himself or the consequences of the scorched earth party politics that emerged even before Watergate.

Wither our current political leadership get the message. Rather than attention-grabbing posturing and occupying government buildings, credibility, actual performance, and persistence apparently still work best with the voters.

But by putting the parties' political, and financial interests ahead of We the People's, and urging candidates and elected officials alike to fling mindless pejoratives at one another, the Democratic and Republican party leaders have brought us to a new low. It is they who endanger our basic democratic values. By controlling purse strings and influencing the media class, party leadership, which is not elected by We the People, has effective control of government, rather than those we elect, but who now only theoretically represent us.

The presidential debates are a good example of Democratic/Republican Party control.

The Commission on Presidential Debates is supposed to be independent of political parties and nonpartisan, but in reality, it is not. And it is only bipartisan, when the word used in the record that led up to the regulation authorizing the debates, 11 CFR 110.13, is nonpartisan. See Perot v. FEC, 97 F.3d 553, 556 (D.D.C. 1996).

In April, the Republicans announced they are withdrawing from CPD so that their "future nominees are not forced to go through the biased CPD in order to make their case to the American people." Like the super majoritarian Democratic Party in California now openly fighting among itself, maybe this breaking ranks on the presidential debates is a sign that the time is ripe for one or more third parties to have a shot in 2024 of starting us back toward elected representative government.

Only two third-party candidates have ever been invited to appear at presidential debates: John Anderson in 1980 (before the Debates Commission was formed) and Ross Perot in 1992.

See Level the Playing Field v. FEC, 961 F.3d 462 (D.C. Cir. 2020). See also Perot v. FEC, 97 F.3d at 557 (citing Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)).

And the U.S. Supreme Court has focused on "maintaining a stable political system" by supporting the two major parties' interests in the States, enabling the major parties' efforts to keep viable third-party candidates from getting to first base. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989) ["Maintaining a stable political system is, unquestionably, a compelling state interest," citing Storer v. Brown, 415 U.S. 724, 728 (1974) [denying ballot positions to independent candidates who had voted in the immediately preceding primary elections or had a registered party affiliation at any time during the year before the same primary elections.]; see Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (1997) ["[T]he States' interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two-party system, (citation) (American politics has been, for the most part, organized around two parties since the time of Andrew Jackson), and that temper the destabilizing effects of party-splintering and excessive factionalism."]

And in California Democratic Party v. Jones, 530 U.S. 567, 752 (2000), where the State's voters attempted to allow more voters to vote for more candidates, the Court found unconstitutional their change of the State's partisan primary from a closed primary, in which only a political party's members can vote on its nominees, to a blanket primary, in which each voter's ballot lists every candidate regardless of party affiliation and allows the voter to choose freely among them.

More recently, Rucho v. Common Cause, 139 S. Ct. 2484, 2506-07 (2019) held that "partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions."

Wouldn't it be great for voters in future elections to get to know more declared and registered candidates? The realistic possibility of becoming eligible to participate in a televised debate would likely encourage more qualified candidates to make themselves available for office, and donors to support such an effort. See "Note: Independent Candidates' Battle Against the Exclusionary Practices of the Commission on Presidential Debates," 90 Iowa L. Rev. 313, 333 (2004). See generally, Keith Darren Eisner, "Comment: Non-Major Party Candidates and Televised Presidential Debates: The Merits of Legislative Inclusion," 141 U. Pa. L. Rev. 973 (1993) ("[National] campaigns [in our political system] serve other purposes besides electing particular candidates to office. They are also used to educate the public, to advance unpopular ideas, and to protest the political order, even if the particular candidate has little hope of election," quoting, Common Cause v. Bolger, 512 F. Supp. 26, 32 (D.D.C. 1980), aff'd 461 U.S. 911 (1983).

But the national partisan forces of the two major parties are at work to keep their bipartisan franchise exclusive. They operate subtly in much the same way as they did in 1913, when they successfully helped remove control of the U.S. Senate from state governments by passing the 17th Amendment, thus allowing them to focus their considerable economic power on Washington D.C., and bypass state capitals. Se, Todd J. Zywicki, "Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals," 45 Clev. St. L. Rev. 165, 215 (1997) ("By making it possible for special interests to lobby senators directly, rather than having to proceed through the intermediary of the state legislatures, the Seventeenth Amendment reduced the costs of lobbying for wealth transfers.")

There have been 22 presidential elections in which three or more candidates qualified for the ballot. Also, in at least two presidential elections, justices of the Supreme Court played a deciding role: the election of 1876, where an Electoral Commission made up of Supreme Court justices gave the election to Rutherford B. Hayes; and the election of 2000, where the Supreme Court's opinion in Bush v. Gore, 531 U.S. 98 (2000), effectively gave the election to George W. Bush; not to mention the election of 1824, where even though Andrew Jackson got the most electoral votes, because he did not get a majority, the House was able to give John Quincy Adams the presidency.

Although Teddy Roosevelt's and Hiram Johnson's Progressive Party "Bull Moose" ticket didn't win in 1912, they beat the incumbents William Howard Taft and Thomas Marshall and rattled more than a few cages. Remember; if third party candidates get enough electoral votes to deny a majority to any candidate, the election goes to the House of Representatives, where each State gets one vote! That's what happened in 1824, when the House voted in John Quincy Adams as President, denying the office to front-runner Andrew Jackson. It could happen again!

Maybe if we encourage and vote for candidates we believe can and will actually be able to cooperate with others to get useful stuff done, viable third-party candidates will run in 2024. They might renew the birth of freedom that would take us back in the direction of a government of the people, by the people and for the people.