Harry Kresky

Corruption, Democracy and Political Reform

2013-05-01T13:44:42-04:00

New York politics has been rocked by back-to-back bribery scandals. State Senator Malcolm Smith and several New York City Republican Party leaders have been indicted and charged with a scheme to enable Smith, a Democrat, to enter the Republican Party primary for Mayor. And Eric Stevenson, a State Assemblyman, was indicted for allegedly trading the introduction of legislation for cash. Stevenson was "stung" through evidence provided from a wire worn by fellow Democratic Assemblyman, Nelson Castro.

U.S. Attorney Preet Bharara appears to be conducting himself in a professional manner and without a political agenda in prosecuting these cases. However, the nexus of our elections, our government and the criminal justice system raise profound concerns. It appears that unbeknownst to voters and his fellow legislators, Assemblyman Castro won reelection while under indictment, wired and doing undercover work for law enforcement. What information of no legitimate interest to prosecutors but personally or politically sensitive was transmitted? How will the revelation that your fellow Assembly Member may be wired impact on the legislative process?

The U.S. Attorney is doing his job. The reform of our political process is ours. In my view, the best antidote to corruption is democracy. A political process that is transparent and invites the participation of all the people is less vulnerable to corruption than one which depends on the authority of a handful of people. The process by which the Republican Party determines who can run in its primary is a good example. Under New York Election Law, Smith could run in the Republican primary, despite his Democratic enrollment, only with the support of three of the five Republican county chairs in New York City. These gatekeepers hesitated and vacillated and, as Smith's prospects dimmed, he is alleged to have resorted to bribery to obtain passage through the gateway.

There are two kinds of reforms being floated: those designed to make apprehension, prosecution and conviction easier and the penalties higher, and those that address the structural weaknesses in our political process that breed corruption. I am wary of the first approach -- its claims to deterrence notwithstanding. The U.S. Attorney already has some pretty powerful tools at his disposal. It is proposed that we extend them to elected officials, such as local DA's or the State Attorney General. That would place them in the hands of people who are much closer to the corrupt process itself and more likely to be tempted to use their power for partisan ends. I like that there is distance between Mr. Bharara and those he is charged with prosecuting.

Governor Cuomo has proposed that in addition to bribery being illegal, it would be a crime for any government employee to fail to report attempted bribery. In other words, every government employee would be required to become a snitch. Mr. Cuomo is quoted in the April 10, 2013, New York Times as stating, "When it comes to public integrity, you can't have enough police officers on the beat, right? You can't have enough sets of eyes." What values are sacrificed to accomplish that? What are the regimes that have taken that approach?

The other set of reforms, restructuring the political process, bear close scrutiny as well. One approach is to focus on the money, for example, a crackdown on lobbyists. And advocates of campaign finance reform are calling for extending the New York City system of public funding statewide, on the theory that if you publically finance campaigns for public office then, somehow, legislators will be less likely to take money in exchange for political favors. I am not sure I understand the logic here. For one thing, the Republican Party scandal took place in New York City. Second, the money used in the alleged bribes likely was intended for personal use, not for reelection campaigns. There is also a renewed call to do away with "member items," where legislative leaders dole out money to legislators who do their bidding to fund projects in their districts.

These "cures," in my opinion, do not go far enough and ignore the role of political parties in fostering the corrupt culture in Albany and New York City.

The speaker or majority leader of each house is the leader of his or her party caucus, and has responsibility for advancing the party's agenda. The withholding of member items is a powerful tool in enforcing party discipline.

Campaign finance reform, as presently constituted, also reinforces party power. The New York City public funding program provides candidates with money to use in a primary and, if they win, they get another infusion of money for the general election. Candidates who do not run in primaries get only one dose of funding. These and other advantages, not available to independent and most minor party candidates, enhance the chances of success of major party candidates in the general election. Any public funding system must treat all candidates (major party, minor party and independent) equally.

The Republican scandal exposes how the role of parties, as gate-keepers in the political process, leads to corruption. There is a solution. If you eliminate the "gateway," then no one can charge a candidate to pass through it. That's what nonpartisan municipal elections would do. It is a reform that has been fought tooth and nail by the parties and their networks. Perhaps the single positive thing to come out of the current and still unfolding scandal is a renewed call by Mayor Michael Bloomberg, the Citizens Union and the New York City Independence Party to do away with party primaries and replace them with a nonpartisan system. In a nonpartisan system, candidates run without the authorization of any party and are not competing for a party line. And all voters make their choice in a first-round primary. The top two finishers, regardless of their party, compete in the general election. This reform allows full participation by the City's one million voters who are independents and members of minor parties in the crucial first round of voting. The States of California and Washington have adopted a similar system (called "top-two") for all state offices and for election to the U.S. Congress.

There are other pro-democracy reforms that expand democracy and help break the hold of the party system on electoral outcomes. They are term limits, same-day voter registration and early voting. Reforms that allow more people to vote and make it easier to do so, along with those that reduce the power of incumbency, can break the hold the parties have on the primary outcomes. Turnout is low in party-primary elections (10 to 15 percent of party members, likely 5 to 10 percent of the electorate in New York City) and is skewed toward party activists and municipal union members on the Democratic Party side and Tea Party activists on the Republican Party side. Closed partisan primaries (the norm for state and federal elections in most states) make elected officials beholden to narrow ideologies and powerful special interests. And given the value of a party line under this system, it increases the possibilities for corruption.

The fight against corruption and the fight to expand democracy go hand and glove. If we do not recognize this, we allow those who seek greater control and less democracy to increase their power and the power of the parties they lead. This creates possibilities for corruption on an even larger scale.

Wisconsin and California: Past and Prologue

2012-06-15T14:49:59-04:00

The future is harder to see than the past. The Wisconsin recall campaign was, in many respects, a story about the past -- the century-long clash between labor and capital, which surely has a 21st-century post-modern form, but is nonetheless still framed as a battle between competing ideologies and organized interests. Is there a way out of that deadlock?

For my money, the most interesting feature of the Wisconsin results was what happened with independents. Exit polling showed 53 percent of them backed Republican Governor Scott Walker, resisting the pleas of organized labor and Democrats to use their vote to repudiate the attacks on public-sector employees. At the same time, though, 56 percent of independents say they plan to vote for President Obama in November. In partisan terms, these results might seem contradictory. But contradictions are often signs of a new politic taking hold. In this case, independents -- largely unorganized but frustrated with partisanship on both sides -- are the force behind the drive to find, or create, something new.

That same day, June 6, Californians went to the polls in the first full-scale election since the adoption by referendum of the Top Two primary system. Under this new nonpartisan system, all voters and all candidates, regardless of party affiliation or non-affiliation, participate on an equal footing. The top two finishers go on to compete head to head in the November election. Washington State has a similar system, and an effort is underway to bring Top Two to Arizona. Independent voters and candidates who are newly empowered in this system emerged as crucial players in this nonpartisan system. And here we get a glimpse of the political future.

According to the San Francisco Chronicle's post-election headline, "Top 2 Shakes up State." The results of California's first Top Two primary saw some small happenings that express a fundamental shift that is taking place in the U.S. electorate, where 40 percent of Americans now self-identify as independents. The possibilities latent in that shift have so far been contained by the closed primary system in effect in most states, where party members choose the candidates who appear on the November ballot and partisan redistricting assures that the winner of the primary of the majority party wins, thus deciding the election before most voters, including independents, get to vote. In these circumstances, the influence of independent voters has been minimized, except in competitive statewide races where these "swing" voters can still determine which of the two partisan candidates will win.

Top Two changes that dynamic. Under a Top two system, independent voters become an important factor in the first round. As a result of primaries in four of California's 53 Congressional districts, one of the two candidates on the general election ballot in November will be an independent. The other will be a Democrat or Republican. Will we see coalitions of independents and voters who identify with the party (or parties) not on the ballot block to win the general election? Perhaps. In a state where over 20 percent of voters are independents, every candidate must try to appeal to independent voters.

In the 15th Congressional District (which includes Oakland, a Democratic Party stronghold) 40-year incumbent Pete Stark, a hardcore Democrat, faced off against insurgent Democrat Eric Swalwell. In round one, Stark got 42 percent, Swalwell, 36 percent and independent Christopher Pareja, 22 percent. Under the old system, Stark's success in the Democratic Party primary, no matter how close, would have assured him of success in November. Independents now have a role to play in a choosing which Democrat will win. In the 24th Congressional District, Republican Abel Maldonado, a key leader in the effort that brought Top Two to California, will face off against a Democrat. The support of independents helped propel him to round two.

Jason Olson of California's IndependentVoice.Org, who worked to mobilize independent voters in several congressional districts, had this to say:

"Under the Top Two Open Primary independent voters played a significant role in shaping the choices in the November election. And we have seen the emergence of organized forces of independent voters working to leverage our agenda. Independents are no longer forced to choose between candidates selected by the partisan Democrats and Republican who vote in closed primary elections. And the fact that the general elections will now be competitive, even in areas where one party is dominant, means that independents will have even more clout."

The Los Angeles Times deadpanned after the primary, "Tuesday's election made clear that the promised political earthquake will have to wait." An earthquake? Perhaps not. A sea change? You bet.

Independents to Minor Parties: Don't Fight Us; Join Us

2012-04-04T17:44:57-04:00

California's minor parties -- Green, Libertarian and Peace & Freedom -- have brought their third lawsuit, Rubin v Bowen, seeking to overturn Proposition 14, the referendum by which the non-partisan "top-two" primary system was adopted in June, 2010. The core issue being raised is federal in nature, that their constitutional right to have a ballot line in the general election has been infringed.

The legal issues raised in Bowen were rejected by the U.S. Court of Appeals for the Ninth Circuit in litigation challenging the State of Washington's top-two system, which is probably why this new case was filed in state, rather than federal court. A lawyer would call the move to state court "forum shopping." When you have a weak case, you look for a friendly judge in a friendly location and hope he or she will ignore existing precedent and give you "a second bite at the apple," so to speak.

Legally speaking, there is no right for a party, major or minor, to have a place on the general election ballot. In fact, cities in California and across the country have had non-partisan municipal elections (where candidates, not parties, are on the ballot) for a century. All the constitution requires is that candidates have an equal chance to access the ballot, and that the rules not unduly burden a particular candidate. Top-two meets that test. All candidates play by the same rules. And California's ballot access rules are liberal. A candidate can obtain a line on the ballot in the first round by paying a filing fee or collecting a specified number of signatures of registered voters. (For State Assembly, for example, a candidate can pay a filing fee of $952 or collect 1,500 signatures.)

At a time when Americans are deeply disturbed by partisanship in Washington and state legislatures, the minor parties are, to put it frankly, acting just like the major parties in that they seem to be putting their narrow interests ahead of enhancing democracy and bringing new players and new coalitions into the political market place. Their California lawsuit, if successful, would return the state to the closed primary system in which each party was guaranteed a line on the ballot in November. But the State's 3.5 million independent voters would be denied the right to first-round voting. Is that what third parties should be fighting for?

For decades, the minor parties spoke out forcefully against "two-party tyranny" and the unwillingness of the major parties to lead the way to radical reform, whether it was the abolition of slavery, women's suffrage, the needs of poor and working people, or the abolition of the Federal Reserve. And they played an important role in demanding action on these fronts. Reform came when one or the other of the major parties made the issue theirs or, in the case of slavery, a new anti-slavery major party -- the Republican Party -- emerged. The failure of the Whig Party to take up the cause of abolitionism in the decades before the Civil War resulted in its demise.

Now, when the issue being raised is the controlling role of parties altogether, the minor parties remain trapped in the party paradigm. Under the party paradigm, politics can only be done through parties, and elections are more about allocating power among the parties than electing the best public servants.

In the current situation, where the issue of the day is one of process, Americans understandably see minor parties as smaller versions of the major parties. They are declaring their independence from parties of all kinds. Forty percent of the electorate now self-identify as independent. In the past twenty years, the percentage of Americans who register to vote without party affiliation has gone from 18.3 to 24.4 percent. Minor party registration during the same period has gone from 1 to 2.2 percent.

Are the minor parties open to blocking with independent voters to create new challenges to the two-party tyranny? I, for one, hope so. But that would mean challenging not just two-party politics, but party politics altogether.

A Twisted Tale of Partisan Politics

2012-03-02T17:34:50-05:00

A strange case in Tennessee got my attention. Now it's before the U.S. Court of Appeals for the 6th Circuit, as the judges consider whether a political party has the right to overturn the results of a primary election conducted entirely in accordance with state law.

Here's the background. Rosalind Kurita ran for re-election to the State Senate in 2008 and beat her opponent Tim Barnes by 19 votes in the Democratic Party primary. Candidate Barnes challenged the result on the grounds that Kurita won because many Republicans and independents participated in the election. But Tennessee, along with some 17 other states, does not have partisan registration. There, voters are just voters, and all are allowed to choose the primary they wish to vote in. So, if they're were not registered into a party in the first place and cast their vote legally, on what grounds were those who voted for Candidate Kurita judged to be Republicans and independents? Shouldn't their votes count the same as those who voted for Candidate Barnes?

In Tennessee, disputed primary elections are referred to the political party whose nomination the candidates seek. Here the matter was "adjudicated" by the Executive Committee of the State Democratic Party under rules adopted after the challenge was filed by Barnes. The "rules" articulated no standard by which the issue was to be determined. The Committee made no specific findings, but voided the election on the grounds that the results were "incurably uncertain." The Party then gave the nomination to Barnes.

Kurita claimed that she was denied due process and unconstitutionally deprived of the election she had won. The trial court rejected her claim on the grounds that the Tennessee Democratic Party was a private organization that did not have to accord due process and, further, that she has had no legally protected interest in the results of the primary election she had won. The decision did not address the rights of the persons who voted for her, or their being deprived of their choice of candidates in a state run and state financed primary. (Apparently, the Tennessee Democratic Party was angry at Kurita because she had supported a Republican for election to the State Senate speaker office the year before she ran for re-election.)

Kurita, like Alice in Wonderland, has fallen into the rabbit's hole of partisan American politics. The parties run the government; they write the laws by which the citizens of their states must finance and conduct primary elections. And when the outcome of an election is not to the party's liking, it can overturn it on any grounds, or no grounds whatsoever, under a set of rules that are adopted for just that purpose.

To add to the madness, the Tennessee Democratic Party rested its right to ignore the will of the voters who participated in the primary election to choose its candidates, on the Party's (not the voters') First Amendment right of freedom of association. Is it any wonder that our elected officials place the rights of their party over the rights of the voters and the interests of the State or country? If they do otherwise, they jeopardize their chance for re-election, the wishes of their constituents voters notwithstanding?

This twisted tale sheds light on why so many Americans don't bother to vote and why a plurality of them have become independents.

America's Two Political Reform Movements

2012-01-12T19:20:20-05:00

President Obama's "recess" appointment of Richard Cordray as director of the Consumer Financial Protection Bureau has caused a partisan political flap. The GOP is threatening court action to redress what they see as an effort to circumvent the Senate's authority to confirm presidential appointments. The White House, with an eye on the 2012 election, responded that the people's business, particularly the business of protecting the middle class, will not be impeded by anti-consumer Republicans in Congress. A fine sentiment. But, if the White House only resists the partisanship of the Republicans, and never challenges the partisanship of both parties, it can have a hollow ring.

And so it goes inside the beltway. While the question of how to reform partisan politics looms large, No Labels, a political reform organization founded in 2010 and counting members and former members of Congress and government, businessmen, academics, pundits and political consultants among its founders and supporters, has weighed in on the controversy. Its solution: a 12-point package of Congressional rules changes announced in December that includes requiring the Senate to act on all presidential nominees within 90 days of their being named by the president.

Interestingly, while Obama made his controversial recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board, he did not choose this moment to fill any vacancies on the Federal Elections Commission (FEC). The FEC continues to function, (badly, according to a January 6, 2012 New York Times editorial), with five of its six commissioners continuing to serve despite the expiration of their terms.

Democrats and Republicans in Congress, with the apparent acquiescence of the White House, prefer to let the agency continue in a state of bipartisan gridlock. The FEC has three Democratic and three Republican Commissioners. Legally, however, the Commission need not be bipartisan, the only requirement is that no more than three Commissioners are members of the same political party. It could be nonpartisan or multipartisan. The obvious solution, and one which IndependentVoting.org and other reform advocates such as Theresa Amato, executive director of Citizens Works, have advocated, is the appointment of several independents to the FEC (See February 2, 2010 op-ed in the Kansas City Star).

This and other "independent" solutions to overcoming partisanship inside (and outside) the beltway, including nonpartisan elections and open primaries, are back-burnered by No Labels and other reform organizations whose focus is on asking the partisans in Congress to reform themselves. No Labels had this to say when it announced its 12-point program for reforming Congress:

Our dozen proposals to make congress work mostly don't require new laws or any new spending, and they don't favor any party or particular cause. These are simple, straightforward proposals to break gridlock, promote constructive discussion and reduce polarization in Congress. They can be adopted, almost all at once, when the next Congress convenes in January 2013.

Leaving aside the difficulties inherent in asking Congress to reform itself, there is another set of reforms relating to how Congress gets elected, surely a critical component of engaging the question of who members of Congress should be accountable to -- the parties or the people who elect them. Appointing independents to the FEC is one way of breaking down the partisans' control of the political process itself. Shouldn't the 40 percent of the electorate who self-identify as independents have representation on the body that oversees the electoral process?

Others are Top Two primaries and nonpartisan redistricting reform. Top Two does away with party primaries that are dominated by small numbers of party activists, who tend to be more ideological. Instead, all candidates run on one primary ballot with the top two going on to the general election. Independents can fully participate, unlike the closed party primaries which bar them. Another outside-the-beltway reform is nonpartisan redistricting that aims to break up the current system which allows parties to bargain with each other for "safe" districts where the winner of the party primary is assured election in November.

Nonpartisan election administration, top two and redistricting reform take aim at the power of the parties themselves seeking to break their hold over the electoral and governing process. These reforms are premised on the belief that you cannot change what members of Congress do in Washington without changing how they get there.

Their advocates do not claim they can be realized "almost all at once... by 2013." They will be achieved by bottom-up fundraising, coalition building and organizing. The states that have adopted Top Two have done so in referendums in California and Washington state where the reform was adopted by a substantial majority. A petition drive to put a Top Two referendum on the ballot is underway in Arizona. States with Initiative and Referendum are also the most likely to enact meaningful redistricting reform.

Outside-the-beltway reform activists believe that the difficult and long-term effort it takes to achieve these reforms is a good thing. In the process of winning them and using them, the American people will become more developed and politically sophisticated and take direct responsibility for our democracy. Those who occupied Wall Street and Cairo's Tahrir Square were responding to the fact that career politicians who benefit from the status quo cannot be counted on to change it. Those interested in political reform should to take that to heart.

America's Other Deficit

2011-08-10T16:34:56-04:00

In the wake of the debt ceiling debate, some are saying that "the gulf between the political parties" has called into question the government's ability to manage its finances, and raising questions concerning the "effectiveness, stability and predictability of American policy making and political institutions."

No, I'm not quoting Jackie Salit, President of IndependentVoting.org. These statements were made in the report of Standard and Poor's that reduced America's credit rating from AAA to AA+, the first time in the investment rating service's history that the U.S. did not receive the highest rating. (Salit would have added a statement about the even wider gulf between the American people and the parties.)

Republican presidential candidates blamed President Obama for the downgrade. In so doing they demonstrated the very hyper partisanship that so concerned the S&P analysts. On ABC's This Week, sniping continued between Republican Senator Jeff Sessions of Alabama and Martin O'Malley, chair of the Democratic Governor's Association. Even though they have very different positions, to most viewers, they sound pretty much the same--namely, always and only, seeking partisan advantage.

Few would disagree that the debt ceiling negotiations were a case study in subordinating the national interests to partisan concerns, in particular to gaining advantage in the 2012 Presidential election. And the result was bad economic policy. The jobs crisis was put on the back burner, and raising the debt ceiling, something that has been done so regularly that it is barely noticed, was taken hostage by Tea Party ideologues who see reducing the national debt as the country's number one priority.

Most responsible economists would argue that in a time of economic contraction and recession, budget cutting is not the answer. They remind us how Herbert Hoover's effort to cut spending and balance the budget at the onset of the Great Depression only made matters worse. They prescribe short term deficit spending (more stimulus) and long term debt reduction. Here again partisan politics interceded, and the Republican majority in the House made clear that it would not vote to support another stimulus package.

That is not to suggest that the growing national debt can be ignored. Federal debt alone exceeds $14 trillion and projections point to a $1.1 trillion deficit in 2011. It is fair to ask how long people and governments will continue to lend money to Uncle Sam under these circumstances. I'll leave that question to the economist and to the creditors.

What I do know is that imploring party politicians to act like statesmen does not work. Nor have efforts to find the "rational center" between the partisans. Ask the "No Labels" folks who mobilized their following to urge Congress to do just that.

Partisanship is not a psychological illness. It is imbedded in the very structure of our political system. When times are good and the economy is growing, short term compromise (if not long term planning) can be achieved. When they are not, the ability of the political system to navigate tricky waters becomes less and less stable, more and more partisan.

As any good engineer will tell you, a structural problem requires a structural solution. And there are some that would make a difference. How about open primaries, nonpartisan redistricting and eliminating party control of Congressional committees? This is what independents want. And many different voices are starting to agree. Former Congressman Mickey Edwards, a Republican, identifies some structural fixes in his article on July 1, 2011 in The Atlantic, "How to Turn Republicans and Democrats Into Americans."

After all, the Tea Party is a product of the current partisan system in which primary voter turnout is small, independents are mostly excluded, and hard core ideologues dominate. Gerrymandering to produce "safe seats" insures that the winner of the dominant party's primary wins the general election. Thus partisanship and ideology are structurally re-enforced.

It has been said that desperate times call for desperate measures. In these desperate times, some basic structural reforms will do. It's time to address the democracy deficit.

Notes on Getting Out of the Partisan Trap

2011-06-10T12:07:42-04:00

This post was co-written by Michael Hardy

A pitched debate in Black political and academic circles about President Barack Obama's commitment to fighting for a Black Agenda has broken into the mainstream media with a bang. The Washington Post, MSNBC, 60 Minutes, and The Amsterdam News have each noted aspects of the story over the last two weeks.

Leading the criticism is Dr. Cornel West, who supported the president throughout the 2008 campaign, but who now calls Obama a "black mascot of Wall Street oligarchs." His sentiments have been echoed by the respected talk show host Tavis Smiley.

The high-intensity language aside, critics feel that Obama has been unwilling or unable to push an economic agenda that deals directly with pervasive poverty and joblessness in the Black community, a problem that cries out for aggressive leadership.

Whether that kind of leadership can actually come from the president (not just this president, but any president) is an open question. Governing requires consensus building among institutional players. Leading movements for social transformation means bringing outsiders into positions of power. They are not the same thing.

Rev. Al Sharpton, a long time movement builder himself, has greater sympathy for Obama's constraints. He argues that Obama is not the president of Black America, but the president of all Americans, and his efforts to blunt the full force of the economic downturn -- if successful -- will benefit Black people. Meanwhile, Sharpton argues, Obama must avoid the trap of advocating too vigorously for African-Americans because the right wing will cast it as special interest (racial) politics and use it to isolate Obama from mainstream white America, whose support he needs to govern and be re-elected.

West is not alone in questioning the extent to which the president's inner circle of economic advisors and policy makers have placated the financial markets at the expense of the poor. Sharpton might even have such questions himself. At the same time, Sharpton notes the realities of politics and governing. And that is why we think it's time to push the envelope on the nature of the political process itself and the ways in which, in its current form, it reinforces pre-existing economic, racial and social divisions and competition, all of which foster partisanship. Put another way, how do we express a national interest of, by, and for the people (including Black people!) rather than merely balancing (or disempowering) particular interests.

For us, this raises the issue of getting past, or outside of, the institutions that organize special interest politics. Chief among these, of course, are the political parties, which control the Congress and, notably, dictate the terms of the political game. Obama has tried to rise above this, only to be sucked back into a partisan grid. How do we get out of that trap? That is a complicated, long term proposition. But there are steps that could be taken now.

Take the issue of job creation, something that Obama, West, Sharpton, and most everyone in the United States cares about. Right now, that question is considered by the Congress along entirely partisan lines. Policies are adopted or rejected on the basis of how they serve partisan interests. Democrats want to do something about unemployment through government action. Republicans want the private sector and the markets to take care of the problem. Every question is framed in these terms. Should we spend money on public works? If so, what about the deficit? Will these jobs replace union workers? What about cutbacks in public employees? Should we spend federal dollars to shore up state and municipal budgets? Is that the best way to keep minority employment stable? And so it goes, with every question and answer framed in terms of how it appeals to the parties core constituencies.

Here is a step outside the box. Have America empower a committee of independents, of non-partisans, from industry, from the communities, from academia and think tanks, from citizenry of all walks of life, to collectively consider these issues. Have this committee selected through an online, transparent, democratic process. This is not a forum to hammer out a "bi-partisan compromise." Its mission is to formulate an approach from outside the standard political alignments, one that gives support to the President to govern outside the partisan grid. That way, the process of dealing with such a problem notably chips away at the institutional arrangements which sustain special interest control of policy making. One final note: it would give Obama a freer hand to advocate for his most important constituency, the American people.

____

MICHAEL HARDY is counsel to the National Action Network and Reverend Al Sharpton.

HARRY KRESKY is general counsel to IndependentVoting.org and the country's leading legal advocate on behalf of independent voters.

Democracy and the Institutions of Democracy

2011-02-22T15:41:31-05:00

The first set of demands made by the people of Egypt after Mubarak stepped aside was that the army suspend the constitution and dissolve parliament. At the same time the punditry here in the U.S. are saying that in order for the Egyptian revolution to bring viable democracy to that country, they need the "institutions" of democracy. But don't these institutions include a constitution and a parliament?

Significantly, the first institution the pundits call for in Egypt is political parties. But here in America the people are fed up with the role the parties are playing in our democracy.

So what is the relationship between democracy and the "institutions of democracy"? In America a case can be made that the Constitution was adopted to curb the excesses of democracy. The period after the revolution was one of great unrest. In Massachusetts in 1786 a poor farmer, Daniel Shays, led a rebellion against the taxes and other levies imposed on him and those like him to pay off the revolution's debt to wealthy European interests that had loaned money to support the war against England. In western Pennsylvania several years later, small distillers refused to pay an excise tax levied by the new national government established by the Constitution. Both rebellions were suppressed.

In No. 85 of the Federalist Papers, written by and on behalf of those advocating for the adoption of the Constitution, Alexander Hamilton emphasized the need to restrain "local factions and insurrections," and prevent the undermining of "the foundations of property and credit." That the Constitution could not win approval without the addition of a Bill of Rights to protect citizens against the government it established, says much about the nature of the document and the system it put in place.

It was not long after the adoption of the Constitution that the two political parties developed. The Federalists, based in the Northeast and New England represented commercial interests and advocated for a strong national government and a pro-business economic policy, including the formation of a national bank. Alexander Hamilton and John Adams were the founding fathers associated with the Federalist Party. Thomas Jefferson and James Madison founded the Democratic-Republican Party (soon to become the Democratic Party) which represented an alliance of white small farmers and wealthy southern slaveholders.

For the next 200 years these two parties (and, in the case of the Federalists, its successors, first the Whigs and then the Republicans) were the vehicles by which the conflicts that led to the adoption of the Constitution were mediated and organized. Their constituencies varied and the particular issues they championed changed with the country's unfolding history.

In their role as mediators of political conflict, the parties set the boundaries of permissible dialogue and the limits of movements for social change. During the post civil war period, the Republican Party that had elected Abraham Lincoln who led the country through the Civil War and signed the Emancipation Proclamation initially supported freed slaves in "reconstructing" the South. The period saw the election of many Blacks to public office and significant progress in education and economic development. This provoked a backlash led by the Democratic Party and some of its most unsavory allies, like the Ku Klux Klan. In 1876 the Republicans and Democrats reached a deal where the Democratic Party would withdraw its opposition to the election of Rutherford B. Hayes, a Republican, in a closely contested election, in exchange for pulling back from support for the empowerment of African Americans in the South. After Hayes took office federal troops were withdrawn from the southern states.

In 1896 the Democratic Party co-opted the anti-capitalist populist movement by nominating its most eloquent spokesperson, William Jennings Bryant, as its presidential candidate. Bryant lost then and in two subsequent elections, but both parties cooperated in passing a series of reforms implemented by President Theodore Roosevelt to curb some of the worst excesses of rapidly growing industrial capital through, for example, the passage of the Sherman Anti-trust Act. Similarly, in the 1930's the Democrats, with Teddy's cousin, Franklin, in the White House, co-opted the pro-socialist ferment catalyzed by the Great Depression through official support for expanding trade unionism and the introduction of social security. The unions today function more as an interest group and a key part of the Democratic electoral coalition than as a leadership force for progressive change. A similar process occurred during the 1960's when the various movements for civil rights, women's rights and gay rights became competing constituencies within the Democratic Party.

The Parties would argue that they were the vehicles for social change. And in a sense they were, although it is more honest to say that they responded to movements for social change by accommodating them within the existing constitutional framework. Socialism would have meant nationalization of industry something the Constitution does not allow as President Truman would later learn when he tried to seize the steel mills to settle a massive strike in 1952.

The parties claim to be the instruments of democratic change is belied by their functioning in an increasingly undemocratic manner. In the early 20th century, widespread outrage over the selection of candidates from alderman to President by party bosses in "smoke filled rooms," led to the passage of laws requiring candidates to be elected by primary elections open to all party members. A target of the civil rights movement in the mid twentieth century was the refusal by Democratic Parties in the South to allow African Americans to participate. Given the dominance of the Democratic Party in that era in the southern states, exclusion from the Democratic primary meant exclusion for the electoral process altogether. It took a series of Supreme Court decisions and a mass civil rights movement followed by the passage of the Voting Rights Act of 1965 to substantially change the situation in the southern states.

In times of social progress, it is easier for the parties to present themselves as vehicles for fulfilling the peoples' goals and aspirations. In recent years, however, the country has experienced a severe economic recession and political and policy stalemate. And the parties themselves are identified by more and more Americans as an impediment, not a vehicle for solving the pressing problems we face. And some of the institutions of democracy that at one time were reforms, are themselves becoming impediments to breaking the gridlock.

A key example is the primary system. The primaries in both parties have been captured by a small number of hard core party activists and ideologically driven elements. In the Democratic Party, the public service unions dominate; in the Republican Party it is social conservatives. Turnout in some states is as low as 10 percent of party members. Given the growing number of independents, the percentage, measured against the total electorate is significantly lower. In California some 3.5 million voters are not members of a political party. In New York, the number is 2.4 million. In response to this situation, the voters of California recently passed, by referendum, a law that abolished party primaries, replacing them with a first round in which all candidates are on an equal footing and all voters can participate. The top two go on to the general election. In New York and other closed primary states, nonaffiliated voters are barred from the primary where the candidates on the general ballot are chosen. And, like in the pre-civil rights movement south, in areas were one party dominates, the outcome of the primary determines who is elected.

Our elected officials are, therefore, often the most partisan elements in each party and they bring their partisanship into the halls of Congress and state legislatures. There is a growing democracy movement in America that is addressing this political and policy impasse. In doing so, they are challenging some of the institutions of democracy, in particular the parties, and the primary system that 100 years ago was a democratic reform, but now is a barrier to the exercise of democracy.

This movement is led by independents who recognize that the creative and innovative solutions demanded by the current circumstances requires breaking the parties' hold on the government and the electoral process. As in Egypt, the movement for democracy pushes up against and demands transformation of the "institutions of democracy."

California's Top Two Primary System Opens the Door to a Broader and Stronger Coalition for Political Reform

2010-12-21T11:06:11-05:00

Last week the California Supreme Court refused to issue an injunction blocking the implementation of Proposition 14 in several upcoming special elections. The measure, which won 54% of the vote in a referendum last June, eliminates party primaries in favor of a "top two" system where there is a first round of voting in which all candidates appear on one ballot and all voters participate on equal footing, with the top two vote getters going on to the general election.

Top two was supported by a coalition which included Governor Arnold Schwarzenegger, Lt. Governor Abel Maldonado, the Chamber of Commerce, the AARP, IndependentVoice.org and California Independent Voter Network (CAIVN). They took on and defeated California's political parties, major and minor.

Opponents of top two knew they could not succeed in a direct legal challenge as the U.S. Supreme Court has already upheld the State of Washington's top two system. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008). Instead they identified two peripheral aspects of the new system and tried to parlay that into an argument to take the whole thing down. So far they have been unsuccessful, and while the litigation has not yet been fully concluded, it is unlikely their challenge to top two will prevail.

As in the lead up to the referendum, the third parties have been out front in the effort to stop top two. In the litigation they have questioned the legality of (1) limiting descriptions of party affiliation that can appear on the ballot next to the names of candidates to parties that have achieved official recognition under California laws in effect for decades (Democratic Party , Republican Party, Libertarian Party, Green Party, American Independent Party and Peace & Freedom Party); and (2) eliminating write-in votes in round two. While either of these two complaints could be remedied without overturning the top two, the plaintiffs have asked the Court to ignore the wording of the enabling legislation and existing legal norms to hold that if any aspect of the system is invalid, the entire system must fail.

Allowing write-ins in round two would undermine top two because the explicit purpose of the system is to provide a face off between the top two candidates in the general election, ensuring that the person elected has a majority. However, the U.S. Supreme Court has already held that a state need not allow write-in votes. Burdick v. Takushi, 504 U.S. 428 (1992) So the argument that top two must fail because it precludes write-ins in round two is frivolous. And there is nothing inherent in top two that would prevent write-in candidates in round one.

The issue pertaining to ballot listing is more interesting and complex. Achieving official ballot status requires registering 103,024 voting age Californians into that party or getting 1,030,233 voters to sign a petition. But there are all sorts of political affiliations that either do not meet those requirements or which do not aspire to be political parties. There are good arguments for and against allowing them to be listed on the ballot. To allow any and all such entities to be listed gives the voters more information about a candidate and the candidate greater latitude to express who he or she is; to limit the listing to officially recognized parties permits a voter to confirm that a particular candidate is indeed registered into the party listed on the ballot and, further, that the afflation listed is more than just six guys who meet for Friday night poker and call themselves the "card party." Independent voters who do not like political parties might favor expanding what a candidate can say about their affiliations on the ballot to more than just a party. But the absence of that option at this time is not a reason to strike down Proposition 14. Actually, it's a reason to implement Proposition 14, which will create an environment more favorable to non-party players. Better to revisit the ballot listing issues further down the road.

With the litigation winding down, and special elections run under top two just around the corner, it is time for the minor parties to reconsider their relationship to this important reform. The new electoral terrain opening up in our country's most populous state creates possibilities for independents and minor party members to work together to achieve a fairer and more inclusive electoral process.

Leaders such as Lt. Governor Maldonando, who was recently presented with an Anti-Corruption Award by the New York City Independence Party, are looking to build new alliances--including with independents--that can achieve progress on key issues such as immigration reform.

In this moment of possibility, it is important to remember what independents and minor party members have in common: a recognition that the major parties have too long placed partisan interests over the national interest; a belief that the existing two party arrangement keeps the policy dialogue within too narrow a framework; and a commitment to leveling the electoral playing field.

Let's Have an Honest Debate About the Role of Parties

2010-06-22T12:24:05-04:00

In the wake of the resounding victory of Proposition 14 at the California polls on June 8th, advocates of continued partisan control of our electoral process have begun to marshal their arguments in an attempt to close the breach CA voters opened in the partisan citadel.

Proposition 14 abolished party primaries and replaced them with a system known as "top two." All candidates will appear on a single ballot in a primary election in which all registered voters can participate and candidates can list party preference. The two highest vote-getters face off in the November general election. A similar reform is now under consideration by a New York City Charter Revision Commission, which has the authority to put it before the City's voters in the November 2010 or 2011 election.

The pro-party argumentation -- laid out in syndicated columns last week authored by George Will and David Broder, along with Errol Louis' column in the New York Daily News -- goes as follows. The political parties, they say, are central to our democracy as vehicles for voter education and mobilization, and the selection of candidates who represent their members' preferences. Their right to do so is protected by the First Amendment, as is the right of citizens to form parties to advance their common interests. Without parties, we are told, billionaires and unchecked special interest groups will come to dominate our political system.

At the core of this position is a legal and logical sleight of hand that conflates the right of the people to form parties (and other associations like labor unions) to advance common interests with the control of the electoral system by the parties. The two are not the same. One is a right of the people; the other is a right of the parties. And, of course, we now find ourselves in a situation where the right of the people to determine how our political system functions is at odds with the parties and their assertion of the right to control the nominating process. In a democracy, there can be no doubt as to whose interests are more fundamental and worthy of protection.

Further, "top two" does not prevent the parties and their members from associating and working to advance their interests. They can endorse candidates, they can urge citizens to vote for them, they can say which candidates truly represent the party and which express a party as their preference, but are at odds with what the party stands for. What has been taken away is the selection of the candidates who appear on the general election ballot by a system of partisan primaries in which the outcome is determined by core party activists who represent, in most cases, less than 10 percent of the electorate, and from which increasing numbers of Americans who prefer to be nonaligned are excluded.

As for the dire warnings of special interest dominance, one must ask, do not the special interests already dominate our political process? And, are not the parties the vehicle by which lobbyists get their business done? Why not make things more honest and more open by allowing these special interests to compete directly in the electoral arenas along with other players, including the parties?

Also suspect are the warnings about the dominance of our political process by wealthy individuals. Wasn't it California Democratic Party leader Jesse Unruh who said, "money is the mother's milk of politics?" And Michael Bloomberg and John Corzine used their wealth to win election to citywide and statewide office in New York and New Jersey under partisan systems. John Paul Stevens, noted in his dissent from the controversial Supreme Court decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 940 (2010), (allowing unlimited spending to support candidates by corporations and labor unions), that a likely consequence was to loosen the hold of the two major parties on the electoral process.

Would it be unduly cynical to say that what the parties and the partisans are really upset about is that under the new Citizens United/top two framework, the money could be spent directly on the candidates and would not have to be funneled through the parties; and that the candidates, once elected, would not be beholden to the parties and dependent on them for re-election? Now, one might think this is a good thing. The voters of California thought it was. Others may disagree. Let's have an honest dialogue.

Let's not obscure the fundamental right of Americans to determine through the ballot how they want their political system to function. And let's not forget that it was the partisan system in recent decades which has brought us three unpopular and unsuccessful wars, a near economic collapse and long term chronic unemployment, an energy non-policy that has just produced an environmental disaster of unprecedented proportions, and a public discourse in Washington, and in Albany and Sacramento, that has more to do with which party scores points than what is good for state and country.

Errol Louis goes so far as to argue that "top two" and other anti-party measures are un-American. George Washington cautioned in his farewell address "against the baneful effects of the spirit of party generally... It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but in those of the popular form it is seen in its greatest rankness and is truly their worst enemy." Ain't he an American?

An Independent Look at Campaign Finance Regulation

2010-04-22T22:51:23-04:00

Independents, now more than forty percent of the American electorate, are challenging the domination of our politics and government by the two major parties. They seek full participation and structural solutions to the hyper-partisanship in Washington and state capitals across the country. A series of recent federal court decisions reflect the progress that is being made to reposition "non-party" players who seek the right to compete effectively in the political process.

A legal milestone in the battle of "the people vs. the parties" was passed in 2008 when the U.S. Supreme Court upheld a voting system in the State of Washington that abolished party primaries. The partisan system was replaced with one where all voters participate in a first round open to all candidates, with the top two going on to a general election also open to all voters. Wash. State Grange v. Wash. State Republican Party 552 U.S. 442 (2008). That Supreme Court decision laid the foundation for a next step on the political front. California voters will go to the polls on June 8th in a referendum designed to bring that system to their state and give 3.4 million independents the right to vote in the election that determines which candidates will appear on the November ballot.

Independents are making legal headway in the area of campaign finance as well, in some cases by the courts rejecting some of the Watergate-era constraints on political spending. The attempts to restrain political giving as a means to prevent corruption and the aggregation of electoral power have proven to produce the opposite. Thus, restrictions on non-party players in the electoral arena have been loosened while the existing limits on contribution to and expenditures by party committees (as proxies for parties) have been maintained. While the courts have been strident allies of the two parties and the two party system (Justice Scalia once opined "Representative democracy ... is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself," California Democratic Party v. Jones, 530 U.S. 567, 574 (2000)), some decisions, described below, have weakened the relative position of the parties in the funding of candidates for public office. The beneficiaries, independents, corporations, labor unions are, in traditional terms, strange bedfellows. And, while these developments have brought hand wringing by pro-regulation liberals who support a campaign finance system designed to keep "big money," out of politics, they create new opportunities to open up the political process and challenge the two-party monopoly.

In Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), decided by the U.S. Supreme Court in early 2010, the Court ruled that the First Amendment bars limits on independent expenditures by corporations and labor unions in support of candidates for federal office. By increasing the leverage of non-party players, the ruling may well loosen the hold of the major parties on the electoral process. The dissenters, in fact, warned against this. 130 S. Ct. 940.

Independents are particularly encouraged by a March 2, 2010 ruling by the Court of Appeals for the D.C. Circuit that gives a significant leg up to those seeking to organize new approaches and new entities to compete with the parties in presidential politics. In Unity08 v. Federal Election Commission, 596 F.3d 861 (2010), the Court ruled that the Federal Election Commission ("FEC") lacked jurisdiction to restrict Unity's access to the funding needed. Unity08's vision was to create a grassroots process to assemble a presidential ticket that drew from across the political spectrum, not a third party, but a "third way" to overcome the intense partisanship of the Beltway. Its hope was to organize a new online nominating process and secure a ballot line in all fifty states for an independent ticket for national office.

The FEC had tried to limit contributions to Unity to $5,000 per person on the grounds that it was a political committee supporting a candidate for federal office. In rejecting the FEC's position, the Court's decision drew a sharp distinction between Unity, an organization attempting to build a new vehicle for action in the electoral arena, and the existing parties. The Court implicitly recognized the need for new and independent players to raise large sums of money to offset the enormous advantage which the major parties have through control of the institutional machinery. This control dominates every aspect of the political process, from who sits on regulating bodies like the FEC to how candidates are nominated to how Congress and state legislatures are organized. For all of the outcry about how our government is broken, it is completely obvious that the current stakeholders will not reform a system that is engineered to their advantage. Unless "outsider" forces or forces which operate beyond the boundaries of party politics are empowered, there will be no way to fix a broken government or repair a damaged political process.

On another front, the national parties were quick to try to exploit the Supreme Court ruling in Citizens United for their own purposes. In Republican National Committee v. Federal Election Commission , 2010 U.S. Dist. LEXIS 29163, decided on March 26, 2010 by the U.S. District Court in Washington, D.C. the Court rejected the Republican Party's effort to use Citizens United to overturn restrictions on contributions to it that are used to support candidates for public office, otherwise known as "soft money." The Court noted that the "national party committees and the public officials who control them" were "inextricably intertwined." (p. 13) In a decision handed down the same day, the Court of Appeals that decided the Unity08 case held that individuals can contribute unlimited amounts of money to non-party organizations making independent expenditures on behalf of candidates. Speechnow.org v. Federal Election Commission, 2010 U.S. App. LEXIS 6254.

Unfortunately, the Obama administration has joined with those who decry these decisions and, in particular, the Citizens United ruling, as opening the door to big money domination of the political process. There are several points to be made here. First, the campaign finance system has neither leveled the electoral playing field nor taken "big" money out of politics. Obama himself opted out of the campaign finance system to raise $700 million because he recognized that his insurgent campaign needed as much money as it could get to challenge, first the Democratic Party, and then the Republican Party, establishments. Second, it has become apparent to millions of Americans, particularly to the 40 percent that self identify as independents, that the problem is not that there is too much money in politics, but that there are not enough mechanisms for the people to exercise the power to reform. Put another way, the parties too often stand in opposition to the interests of the people.

We must measure the corrupting influence of money against the need to raise and spend it to challenge existing two-party control. Every court that has looked at the matter has identified the major point of engagement as that between contributors (individual, corporate or union) and a candidate or the party of which he or she is a member. It is this iron triangle of party, candidate and moneyed interests that makes the American political system so hard to reform. Allowing players, including rich ones, from outside that iron triangle to spend to support political reform (including supporting candidates oriented towards reform) and new electoral initiatives is what independents seek in the campaign finance arena.

Why Independents Are Right and Ralph Nader Is Wrong About Proposition 14

2010-03-30T15:01:24-04:00

I was disappointed to see that my friend and colleague, Ralph Nader, recently spoke out against Proposition 14, the California ballot initiative that proposes to reform the electoral process in America's most populous state. If passed, Prop 14 would allow all voters, whether affiliated with a party or not, to vote in an all-inclusive first round in which every candidate is listed on the ballot with their party preference next to their name. The top two vote getters go on to the general election which is also open to every voter. Nader believes California voters should reject this reform in order to guarantee third parties a spot on the general election ballot at the expense of millions of independent voters who will be empowered if Prop 14 passes.

In 2004, Ralph faced an organized conspiracy by the Democratic National Committee and the John Kerry presidential campaign to keep his name off the ballot in as many states as possible. Leading Democrats held Nader responsible for Al Gore's defeat in 2000, and justified their assault on his right to run for President and the right of Americans to vote for him with the need to defeat George Bush by any means necessary, including restricting the franchise. I am proud to have volunteered my efforts to represent Nader in courts in West Virginia and New Mexico, and that in both states his name remained on the ballot, in spite of the Democratic Party onslaught.

Read the full op ed as appeared in The Sacramento Bee, March 28, 2010.

Words Matter: Voters to Get Fair Wording of California Open Primary Initiative

2010-03-18T13:47:36-04:00

The battle over the wording of CA prop 14 -- sometimes called the top two or open primary initiative -- likely ended yesterday with a ruling by a California Court of Appeals upholding the lower court's refusal to alter the language that will appear on the ballot to describe the measure CA voters will vote on June 8. So concluded a week of intrigue in which partisans attempted to derail the initiative through a backdoor legal maneuver.

Prop 14, if passed, would institute a form of open primary where all voters, whether affiliated with a party or not, vote in an all-inclusive first round in which every candidate is listed on the ballot with their party preference next to their name. The top two vote getters will go on to the general election which is also open to every voter.

An important issue posed by the litigation and one likely to play back into the overall fight, is whether or not parties have a "right to be on the general election ballot." Opponents of Prop 14 tried unsuccessfully to get the court to rule that the ballot summary must state that Prop 14 will eliminate that right. However, there is no such right. This issue was resolved when the U.S. Supreme Court upheld the State of Washington's top two initiative on which Prop 14 is modeled. Wash. State Grange v. Wash. State Republican Party 128 S.Ct. 1184 (2008).

The assertion of such a right by the parties raises a fundamental question about the nature of our democracy. Does it rest on the rights of voters or on the rights of parties? On one level the answer is simple. The Constitution makes no mention of political parties. The Bill of Rights speaks of the "rights of the people," not of the parties. After all, it is the people who organize the parties, so how could the rights of the parties they organize trump theirs?

In 2000 the parties went to the Supreme Court to prevent the voters of California from instituting another form of open primary. Democratic Party, et al. v. Jones, 530 U.S. 567 (2000). Obviously, they have not given up the fight. With the preliminary legal hurdles passed, the State's 3.4 million independents can now join with other voters in asserting their right to determine how the elections by which they select their government are organized. Wasn't it Abraham Lincoln who spoke of "government of the people, by the people, for the people?"

Harry Kresky, a New York City attorney, is counsel to IndependentVoting.org. He currently represents independent voters in a precedent-setting case defending open primaries in Idaho.