Comment: Want third parties to get a shot? Support H.R. 1

By Lawrence Lessig / Special To The Washington Post

The “For the People Act,” passed this month by the House, contains measures to strengthen American democracy: It would make vote suppression in the states radically more difficult, end partisan gerrymandering, and change the way campaigns are funded through small-dollar matching funds, among other things.

But some advocates have sounded the alarm that the act — also known as H.R. 1 — would hamstring third parties. Perhaps it bolsters democracy in some ways, but “democracy for whom?” asked Michael Feinstein, a former co-chairman of the Green Party of the United States (and also former mayor of Santa Monica, Calif.). “H.R. 1 contains a poison pill designed to reduce political competition and voter choice by weakening minor parties.”

If true, this would be troubling; not just to members of the Green Party but to the many Americans across the political spectrum who think America needs an alternative to the Democratic and Republican parties. In a February poll by Gallup, for example, a record 62 percent agreed that “the parties do such a poor job representing the American people that a third party is needed.”

But it’s not true. H.R. 1 would make it somewhat harder for third-party presidential candidates to get federal financing, because it increases the amount of support candidates have to demonstrate to qualify. But H.R. 1 would make it significantly easier for third-party Congressional candidates to run competitive races, because for the first time, small-dollar contributions to their campaigns would be matched by federal funds. And that is where the attention of third parties should be focused, because that’s where the work of changing the American political landscape will be done. On balance, the Senate’s passing H.R. 1 would be a net gain not only for democracy but for third parties in particular.

H.R. 1 aims to change the presidential public financing because the current system is obviously broken. Every president between Richard Nixon and Barack Obama was elected using the presidential public funding system. But in 2008, Obama opted out, and since then, no major party candidate has considered taking public money. The explanation is simple: the spending limits imposed on people who do so. In 2016, the limit in the primaries for candidates who accepted federal funds was $48 million; in the general, it was $96 million. Actual primary election spending by Hillary Clinton was $410 million; by Donald Trump, $206 million.

Under the existing system, to qualify for federal funding, candidates must raise more than $5,000 in at least 20 states, in contributions of $250 or less; a low bar. Once qualified, contributions to candidates in the primaries (up to $250) are matched by the Federal Election Commission. In the general, major party candidates receive equal lump-sum payments: $104 million in 2020, had either candidate taken the offer. Minor party candidates receive a much smaller amount for the general election, at least if they receive 5 percent of the vote. But in exchange, any candidate taking federal funds must agree to limits that are too confining in a system awash in private money.

At the presidential level, H.R. 1 would replace this regime with one that does away with spending limits, and lump-sum payments, but raises qualification requirements. Under the new system, contributions to presidential candidates of $200 or less would be matched by a 6-to-1 ratio. Private contributions would be capped at $1,000, compared with $2,800 today. Overall public funding would be limited to $250 million per candidate, indexed to inflation; a substantial increase. But campaigns could spend whatever they raise. And the law would enable national parties to spend more in coordination with the candidates. It’s a system that might well entice major-party candidates to take part, and also shift the balance of power from major donors to small donors.

But to participate in this system, campaigns must now raise $25,000 in 20 states, not just $5,000. That extra burden, the Green Party fears, will make it harder to enter the system. (The party also argues — separately — that the new system would amplify differences between popular and less popular candidates, because each small donation would be multiplied: If one candidate raises $100,000 and another raises $200,000, public funding would transform that difference into $700,000 vs. $1.4 million.)

Clearly, the larger fundraising requirement would make it more difficult for third-party presidential candidates with limited reach to qualify for subsidies. But it’s not clear that’s a terrible thing. No third-party candidate in almost 30 years has had any chance to be elected. Arguably, the main effect of third parties in presidential races has been to risk throwing the election to the less-popular of the two major-party candidates. In 2000, Ralph Nader likely tipped Florida, and therefore the election, to George W. Bush, although Al Gore won the national popular vote. (Naderites dispute this; here’s a model to test the hypothesis.) Some have also argued that in 2016, the third-party candidates may have shifted the election to Donald Trump; though that claim is also contested.

If states used rank-choice-voting (as Maine and Alaska now do) — allowing voters to express their ordered preferences for multiple candidates — this spoiler effect could be eliminated. Third-party candidates would then help bring new ideas into the system, without a majoritarian downside. But until that sensible change happens, it’s hard to lament the new requirements in H.R. 1.

Far more important, however, is what H. R.1 would do to make it easier for third-party Congressional candidates to compete. The 6-to-1 match for small contributions applies to every elective federal office. Every candidate, including third-party candidates, could build the support they need from many small contributors, including — because now there’s a strong incentive to target them — those who have never given to campaigns. H.R.1 also includes a pilot voucher program, which gives voters in some districts $50 vouchers to contribute to federal campaigns; should that program be expanded, the potential for third-party competition only grows. H.R.1 doesn’t aim at equality in funding, but increased participation by ordinary citizens, and decreased dependence on large contributions from the very few.

There’s a lot wrong with American democracy, but there’s a growing consensus it needs more party competition in Congress. More competition — encouraged by the reforms in H.R. 1 — would break what the political scientist Lee Drutman has called the “doom loop” of two-party polarized politics.

While we think of America as a two-party democracy, throughout its history the two dominant parties have always been ideologically divided. Thus America has actually been governed, in effect — when governing seemed to happen — by four parties. Those four parties competed to build coalitions that could enact major legislation in Congress. Strengthening new parties on both the right and left could well help to restore us to that more productive political reality.

H.R.1 is arguably the most important democracy reform package since the Voting Rights Act of 1965. It could be critical to preserving majoritarian democracy over the next decade. The bill would assure a more representative federal government by ending vote suppression in the states, partisan gerrymandering of Congress, and for the first time, by enacting public funding for Congressional elections.

Third parties would benefit critically from these changes as well; not, perhaps, in vanity campaigns for president but certainly in the space where we need real party competition: Congress.

Lawrence Lessig, the Roy L. Furman professor of law and leadership at Harvard Law School, is the author of “They Don’t Represent Us: Reclaiming Our Democracy.” In 2015, Lessig was a Democratic presidential candidate.