Deregulate the Duopoly

by Thomas Lowe

The Nation magazine, December 4, 2000

As rain dances used to serve certain primitive tribes and scripture still serves true believers, the two-party system serves as the religion of the political class. Never mind that more than 50 percent of Americans may not share the civic religion, answering yes to pollsters when asked if they would prefer more than two choices (and that includes many regular voters as well as the bulk of habitual nonvoters). Nevertheless, every new party that has ever tried to establish itself has been treated by the political priesthood as a blasphemer-an evil force that inevitably contributes to the disastrous victory of the more detested of the two major candidates. Perot elected Clinton. Nader elects Bush. The real culprit in the current election imbroglio is the two-party system itself and the state laws supporting it. These laws exist to discourage new parties. Florida has come in for special attention because of the current crisis, but Florida is typical among states. The beautiful irony is that the laws written to discourage third parties have proved to be a double-edged sword, cutting for the moment against those responsible for the existence of those laws.

Consider first how the laws work against all new parties. It is not Providence that takes an energetic social movement and crushes it as soon as it chooses to advance its goals through elections. It is the laws of the state here on earth that keep the party system on life support by preferring two parties above all others. The key example will be found in the laws of the states and Congress that mandate the single-member district system of representation plus the plurality or first-past-the-post method of election. Another historic example is provided by the "anti-fusion" laws in all but a half-dozen states, which prohibit joint nomination, whereby a third party seeks to nominate for its ticket the candidate already nominated by one of the major parties. Even the Supreme Court has approved such laws with the argument that having the same name in two places on the ballot would confuse the poor, defenseless voters.

Add to all this the new gerrymandering. Traditional gerrymandering was at least a genuine struggle between the majority parties to dilute the vote power of the other party by concentrating a maximum of their voters into a minimum of districts. The new method takes advantage of the Voting Rights Act by benign race-conscious gerrymandering in order to keep minorities within one of the major parties. In practice, blacks are guaranteed one or more additional Congressional or state legislature seats within the Democratic Party, while Republicans gain strength in districts from which the minority voters are evacuated.

Then there are the countless state laws that prescribe higher thresholds for the number of correct signatures required on third-party nominating petitions than for regulars on two-party ballots. Even the laws that apply equally to all parties are discriminatory, because they are written in such detail that ballot access for third-party candidates requires expensive legal assistance just to get through the morass of procedures. That mind-numbing detail is doubly discriminatory because the implementation of these laws thrusts tremendous discretion into the hands of the registrars, commissioners and election boards, all staffed by political careeristas of the two major parties, whose bipartisan presence is supposed to provide "neutrality with finality"-but it is common knowledge that they can agree with each other to manipulate the laws for the purpose of discouraging the candidacies of smaller and newer parties.

The same principles help explain why less than 50 percent of the electorate turns out to vote. Most of the blame goes to the forbidding proceduralism of registration, enrollment and eligibility and the discretionary power of local and county officials in implementation. And don't forget the gruesome timing of state election laws that restrict voting to one ordinary workday. The duopoly has a stake in low turnout. Virtually all expansion of the electorate (to include women, 1 8-year-olds, blacks) and the easing of restrictions on registration (judicial enforcement of the "motor voter" law) have been imposed on the state two-party systems from the outside by national social movements and federal courts.

Now, as poetic justice would have it, this legal structure. is cutting the other way. Just look at the havoc it has wreaked: Loused-up ballots. Machine versus manual recounts. A lawyers' field day and the threat of court intervention that could cause a constitutional crisis or take Florida out of the electoral vote altogether The Florida crunch can happen in any state where the results are extremely close and the outcome can change the national results.

That's because the two constituted parties cooperate well as a duopoly so long as market share is stable, with decisive election results. But whenever there is an extremely close election, the two parties become vicious antagonists, and the high stakes make it profitable for each to use its control of the electoral machinery as a weapon of mass destruction against the other. No war is more destructive than a civil war, and ordinarily the two parties have incentives to keep civil war from happening. Civil war in 2000 has broken out because two-party competition has turned from a public good to a public evil. The two-party system has at the moment become a menace to the Republic, made worse by the overwhelming weakness of the parties' presidential candidates and the impossibility of choosing between them when the only way to vote no for the candidate you hate is to vote yes for the one you can barely tolerate. And forget about having a good option when you hate both equally.

With Nader in the race, a lot of things got said that otherwise wouldn't have-no matter that the leading candidates excommunicated him. Making issues out of nonissues is what third parties are about, but those issues obviously did not create the stalemate we now confront. Stalemate is putting the case too mildly; mutual assassination is more like it. The crisis will not end with a certified recount in Florida. The civil war will continue, and the two parties will give us competition literally with a vengeance. Forget about smooth transitions. The FBI won't be ready with its security checks of top appointees, and the Senate will look at them with far greater than average scrutiny, even if the President's party is in the majority, because the Senate is run by sixty anti-filibuster votes, not by mere majorities. That will apply in spades to judicial vacancies. Get ready for a Supreme Court of eight, seven, even six members, because as the vacancies occur, there'll be a majority against any nominee, even ones as mushy and fuzzy as President Bush or Gore will nominate. (The Constitution does not require any particular number of Justices on the Supreme Court.)

No exit? We have to turn the civic religion on its head an lionize the principle of a multiparty system, because its presence on a regular and expanded basis would relieve the two major par ties of the need to be all things to everyone in order to get their phony majorities. We don't do that by inviting third parties to join the major parties on legal life support-as government-sponsored agencies. We do it by deregulating our politics. Hey, guys, deregulation. If you really meant it all these years, you Republicans and you Democrats, then be honest and deregulate yourselves. Take away the two-party safety net, by legislation and better yet judicial review, and the democratic revolution can begin.

Theodore J Lowe is John L. Senior Professor of American Institutions at Cornell University.

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