The two major parties, as Judge Richard Posner writes, “exert virtually complete control over American government.”  They are what economists call a duopoly.  Does the duopoly do a reasonable job of presenting candidates the people want?  Is there any hope of electing a candidate favored by a majority of the American people?  To find out you would have to have a ballot line for None of the Above and see how well it does.  We had a flawed proxy in 1992, when 19 percent of the vote went to Ross Perot.  During the campaign Perot had withdrawn once from the race under strange circumstances.  Presumably, few of his voters really wanted him to become president, so his 19-percent vote was a desperate protest.  A pure None of the Above line would not carry the baggage of a strange individual.  None of the Above may have won in 1992, 1996, 2000, and 2004.  Of course, None of the Above cannot govern.  If he won, we would have to have another election.

Financial duopolists share a market, and both enjoy profits in excess of those available in a competitive system.  They cooperate with each other rather than compete.  They have no incentive to cut prices significantly since, if one starts to do so, the other will respond, and both will lose profit.  Each would like to take a few points of market share from the other, but neither wants to put the other out of business.  And, of course, both act to prevent any new producer who would cut prices from entering the market.  Our political duopolists behave similarly.  There is plenty of profit for both parties as long as they don’t seriously compete—and as long as they can prevent any third party from rising.  They serve themselves, not the country.  They have led the country, without full debate and without the constitutionally required declaration of war, into a series of ill-conceived wars (Vietnam, Yugoslavia, and Iraq).  They have also spent money so irresponsibly that they have created a perpetual debt to burden future generations.

The shameful story, largely unreported, of the Democrats’ campaign to keep Ralph Nader off the ballot in 2004 is told in a new book by Mr. Nader’s campaign manager, Theresa Amato.  The Democrats freely admit their harassing lawsuits were in bad faith.  As Toby Moffett, leader of the ballot-access campaign against Ralph Nader, said, “We distracted and drained him of resources.”  The courts, including the Supreme Court, refused to block the Democrats’ scheme.  Like Ayatollah Ali Khamenei and his friends, the Democrats believe democracy works better if they control it.

In 2000, Mr. Nader received 2,882,955 votes.  Democrats believe Mr. Nader’s substantial votes in Florida were mostly taken from Al Gore, made the race a close one, and ultimately allowed the Supreme Court to steal the election in Bush v. Gore.  The Democrats’ fury, for some reason, fell on Nader rather than on Pat Buchanan, who, because of the infamous butterfly ballot, received a surprisingly high vote in Palm Beach County.

Four years later, George W. Bush and John Kerry did not differ substantially on the Iraq war—both agreed it was appropriate for the United States to invade Iraq to bring democracy to her people.  As Nader had opposed the war from the start, he decided to run against them as an antiwar candidate.  The 2004 presidential debates would have been an excellent opportunity to explain his views to the public.  The Democrats, however, wanted not only to keep Nader out of the debates, but to keep him off the ballot.  The Democrats’ massive litigation campaign challenged every ballot-access signature in every state—first administratively, then in the courts.  Charles Cook, an independent political analyst, reported that “Democrats are making this as difficult and as debilitating for him as possible, . . . and to the extent he’s tied up trying to get on ballots, he’s not getting any kind of message across.”

Though the Democrats’ litigation clearly was oppressive and in bad faith, Nader’s efforts to win justice were rejected by the courts.  Numerous circuit courts, and finally the Supreme Court, allowed the Democrats to suppress the democratic process.  The party largely succeeded—they kept Nader off the ballot in four battleground states (Arizona, Ohio, Oregon, and Pennsylvania).  With the help of the Republicans, they kept him out of the debates as well.

Republicans have also wielded their power to prevent ballot access to those challenging the duopoly.  Pat Buchanan, running as an independent in 2000, faced a formidable Republican campaign to keep him off the ballot.  Buchanan filed a formal complaint with the Federal Election Commission (FEC), charging that the Commission on Presidential Debates (CPD) conspired to exclude him.  The FEC denied the complaint.  Both the FEC and CPD are creatures of the duopoly.  Amato notes that the FEC, created by Congress in 1974, was “designed as an independent regulatory agency.”  It is made up of six commissioners, but no more than three can come from one party.  As Amato writes, “the appointment and confirmation tango serves to guarantee that the commissioners are only Democrats or Republicans.”  The CPD is not, as most people think, a governmental body; it is a private nonprofit organization.  Amato asserts that “the two major parties created the CPD [in 1987] so they could control the presidential debate process.”  The debates had previously been run by the independent League of Women Voters.  Pat Buchanan, in 2000, asked why “the American people are not permitted to hear candidates whose campaign they are paying for, because a couple of political hacks are fronting for the establishment parties in Washington and freezing them out.”  Ross Perot, in 1992, was allowed into the debates only because George H.W. Bush believed, erroneously, that Perot would draw votes from Bill Clinton.  Perot’s strong showing, despite his bizarre behavior, frightened the duopoly so much that it has since excluded all nonduopoly candidates from the debates.

The New York Times suggested in August 2004 that Ralph Nader could have drawn at least two or three percent of the vote in more than a dozen states where the race was close enough to alter the outcome.  States have no valid interest in protecting the major parties from competition.  But they do exactly that.  Their various devices include setting early filing dates and requiring large numbers of signatures, strict conformity of signatures to voting rolls, and special provisions such as insisting that signature circulators be state residents.  The Democrats used all of these to purge Nader from the ballot.

The Founding Fathers did not create the two-party system.  As Nader writes in his Foreword to Amato’s book,

Party is not mentioned in the Constitution.  George Washington and Thomas Jefferson, among other Founders, despised political parties, calling them “factions” bent on self-perpetuating their own narrow interests.

The Framers also did not create the Supreme Court as an alternative to democratic government.  They did not dream that basic questions of social purpose and cultural values would be thinly disguised as legal issues to be decided by an unaccountable Court.  But the Court does have a critical, and proper, role—that of ensuring that governmental decisions represent true democratic consensus.  The Court should keep the channels of opinion and of discussion open and free.  It should ensure ballot access to serious political candidates—which it spectacularly failed to do in 2004, by denying Nader’s numerous petitions.

In some situations, the Court is the only governmental agency able to repair the political process when it breaks down.  The two parties collude to exert virtually complete control over the U.S. government, including the Supreme Court.  The Court is the only branch that could encourage ballot access for the purpose of breaking up the duopoly.  Yet since the Court is the vehicle through which the duopoly resolves internal conflict, neither camp is likely to be interested in undermining an arrangement that has placed the Court at the front and center of the modern political arena.


[Grand Illusion: The Myth of Voter Choice in a Two-Party Tyranny, by Theresa Amato (New York: The New Press) 400 pp., $27.95]