Election Commission Fair to Third Parties

To the editors:

The recent op-ed by Nicholas F. B. Smyth ’05 (“Making Third Parties Matter,” May 3) is well intentioned but poorly informed.

Smyth argues for a greater role for third parties in American politics. But he fundamentally misinterprets the role of the Federal Election Commission (FEC). He argues that, “[c]urrently, elections are supervised by the bipartisan Federal Election Commission” and that “the FEC keeps third party candidates out of elections.” This is simply not true. The FEC has no authority at all over state ballot access laws, that is, laws that determine which parties appear on the ballot. Nor does the FEC have authority over the manner of election. The biggest single obstacle to third party success is the United States is the “winner take all” system of elections, which discourages voters from casting a vote for a candidate deemed unlikely to win. This system is established by federal law for Congress, and by state laws for the electoral college, not by the FEC.

Smyth next briefly detours to specifically criticize me as a “problem” on the FEC. This is a curious detour, indeed, given that my 1991 article in the Harvard Journal of Legislation, “Judicial Protection of Ballot Access Rights,” remains one of the most important and oft-cited pieces of legal scholarship supporting the rights of third parties. I am almost certainly the biggest supporter of third parties on the commission. In the fall of 2000, during the dispute over which candidate, John Hagelin or Pat Buchanan, was entitled to government funds owed the Reform Party’s nominee, I was the strongest voice on the FEC for a quick resolution that would get the funds to the party’s nominee in time to be of use in the general election. Since joining the commission in June, 2000, I have led the fight against an FEC legislative recommendation to Congress that the Presidential Election Campaign Fund Act, which is administered by the FEC, be changed to make it harder for third parties to qualify for government funds. Smyth’s specific complaint seems to be that I have been critical of the Shays-Meehan campaign finance regulation bill recently passed by Congress, ignoring the fact that one reason I have been critical of the bill is that it is highly unfavorable to third parties.

Returning to the topic at hand, Smyth complains that the Commission on Presidential Debates (CPD) unfairly excludes third party candidates from those debates and argues that the CPD should be abolished. Smyth ignores the fact that the CPD is a private, not a government, organization. It has no legal authority over debates, but rather serves as a negotiating and administrative vehicle for the major party candidates to arrange debates. Third party candidates, therefore, are not excluded by the CPD per se—they are excluded because the major party candidates do not want to debate them. Possibly the FEC could try to force the CPD to include other candidates by in some way interpreting the CPD-sponsored debates as illegal in-kind contributions to the Republican and Democratic candidates. However, in Arkansas Educational Television Commission v. Forbes, the U.S. Supreme Court made clear that debate sponsors have broad leeway in choosing whom to include—or exclude—in candidate debates. Moreover, if the FEC did succeed in such action, it might simply mean no debates at all—clearly the FEC has no power to force candidates to debate anyone. The question, ultimately, is do we really want the federal government to be in charge of how candidates campaign and whom, if anyone, they choose to debate, or is this an issue that should be left to candidates and voters? Ross Perot, and before him John Anderson, got included in debates because enough voters wanted to see them, and because one or both major party candidates thought they had more to lose than to gain by opposing inclusion of the third party candidate. Is that not the way it should be—that the voters, not the government, decide?

Finally, Smyth calls for the replacement of the FEC with “an independent commission.” What does that mean, exactly? That the president would not nominate commissioners, subject to Senate confirmation? If so, how would such a commission be structured? Who would choose the commissioners? Suppose this could be done: do we really want our elections governed by an unaccountable bureaucracy? Under the current structure of the commission, no one party can control the commission. Would we want a system that would allow adherents of one party to gain control of the commission, under the guise of “independence”? Smyth’s proposal ignores the fundamental fact that government is by definition, also political, and that is why we have elections in the first place.

There are things that can and should be done to foster healthy third party competition in American politics, but the discussion must begin by getting facts straight and thinking seriously about the proper role of government in regulating candidate strategies and speech.

Bradley A. Smith

Washington, D.C.

May 5, 2002

The writer is a commissioner on the Federal Election Commission. The views expressed are those of Commissioner Smith, and do not necessarily reflect the views of the commission or other commissioners.