FINDING OTHERNESSA Blueprint for an Independent Conversation about 2020

By Jacqueline SalitJune 2017

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The First QuestionThe first question is already being engaged by an unusual assortment of active forces.* Taken together, these conversations and the initiatives to come out of them are the “workshops” in which responses to the public demand for a workable and fair political system are being hammered out.

The persistent upheavals in American elections, combined with the continued disalignment away from the political parties and towards political independence (44% of Americans self-identify as independents) have delivered to the independent/reform movement a mandate to go to work together on remaking the political system. The good news

is that we now see the most vigorous working relationships among disparate independent and reform forces since the 1990’s.

To be sure, there are substantive and tactical differences among these players. Some have clear missions for specific structural reforms. Some have strong funding pipelines. Some have roots in the poorest communities, including the communities of color where the Democratic Party has held sway for two generations, but where there is growing disaffection with the party’s promises of empowerment. Some have ties to the third party movement, the Perot revolt of the 1990’s, the Sanders revolt of 2016, the Obama-to-Trump swing voters, or to America’s self-described independents. Some come

Coming off of the raucous 2016 presidential election and its fitful aftermath, the independent movement is faced with opportunities and challenges on a grand scale. The behemoth battles in Washington, and the media circus surrounding them, serve to mask the gulf that continues to widen between the government and the people. Given that gulf, independents and reformers must be considering (at least!) the following two questions:

1) With rampant public anger about the state of our politics and the mind-numbing dysfunction in governance, how should we be working to fix the system, revitalize American democracy, and give greater power to the American people?

2) Should independents and structural reformers also be considering a strategy for the 2020 presidential elections? If so, what is that strategy, what are the prospects for a unified strategy, and how would we get there?

* This engagement began at the series of conferences and summits that took place during the first half of 2017, including the 50 State Solution sponsored by California Forward in San Francisco; the National Conference of Independents sponsored by Independent Voting in New York, along with the adjunctive Political Reformers Round Table sponsored by Open Primaries; the UnRig the System conference in Kansas City sponsored by Level the Playing Field, the Independent Voter Project, IVP Colorado, Represent.Us, the Centrist Project, FairVote, the Bridge Alliance and former independent U.S. Senate candidate Greg Orman; the Centrist Project Summit in Chicago; and the Bridge Alliance gathering in Dallas. Though not directly tied into this circuit, I would mention Arizona State University Morrison Institute’s State of our State post-election conference, as it highlighted the importance of independent voters and our capacity to act as bridge-builders between partisans.

FINDING OTHERNESSA Blueprint for an Independent Conversation about 2020

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out of the business community, the tech sector and Silicon Valley with little political experience but an affinity for creative disruption. Some are attempting to litigate the barriers to a more participatory democracy. Some focus on online outreach and education while others do direct base building and leadership training among activists. Some have run initiative campaigns for reform or for public office or aspire to expand independent candidate recruitment and impact. All believe that systemic reform is urgent.

The Second QuestionTurning attention, then, to the second question: whether and how independents and reformers should craft a shared strategy for the 2020 presidential elections. This is the far trickier question. The raw popular demand for political alternatives combined with a new level of development of the independent/reform movement suggests to me that a unifying strategy is possible. The question is whether there is sufficient will to develop it.

My starting premise is this: the period between now and 2020 offers a heightened opportunity to challenge the corruption of the “partisan/special interest complex” and the reinforced hegemony of the major parties. A dream scenario might ultimately include an independent presidential ticket in 2020 backed by an unorthodox coalition of outsider and insider forces.

The Opportunity for “Otherness”An insightful post-conference season memorandum was written by the renegade pollster and analyst Pat Caddell, who gave input into a number of the reform conferences. He commented on a recent Washington Post/ABC News poll which found only 55% of adult Americans identify as either Democrats or Republicans. The partisan preferences read as follows: 31% identify as Democrat, 24% identify as Republican, 36% as Independent, and 6% as Other, while 4% had no opinion.

“Of course,” Pat observed about the independents, “this large plurality of Americans is totally ignored.” Caddell went on to cite the results of another series of questions in which respondents were asked to

describe the President and both major parties as either “in touch” or “out of touch” with the concerns of most people in the United States today. Among all respondents, 58% said Trump was out of touch, 62% said the Republican Party was out of touch, and 67% said the Democrats were out of touch. Caddell rightly observes that the most significant finding here is about the Democratic Party. “Given Trump’s generally negative ratings, it is shocking that two-thirds of the electorate finds that the ‘opposition’ or ‘resistance’ party is so out of touch,” Caddell asserts, concluding that this, “illustrates the great opportunity for the politics of ‘otherness.’”

Credit to Caddell! The idea of the “politics of otherness” captures something very particular about the nature of this moment.

Wisely, he doesn’t prescribe in advance what the “otherness” should consist of. That task, or, better still, that process falls to us all collectively. We must offer and shape expressions of “otherness,” and, in doing so, help independents and the American people as a whole determine what strategy(ies) are in their best interests. This is a different methodology than simply deciding in advance that what the American people need is “more choices on the ballot.” The methodology of “otherness” builds with the raw materials that have been co-generated by the independent movement and the voters.

Credit to Caddell! The idea

of the “politics of otherness”

captures something very

particular about the nature

of this moment. Wisely, he

doesn’t prescribe in advance

what the “otherness” should

consist of. That task, or,

better still, that process

falls to us all collectively.

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Caddell identifies the need for our sector to move into the political void as urgent. I would add, should the Democrats, the New York

Times and everyone else gunning for Trump succeed in bringing impeachment proceedings against the President, it would accelerate the timetable in which independents and reformers would need to come together to make a stand. While the constitutional line of succession to the White House is clear, the ensuing crisis would put pressure on independents and reformers to stand up together for a thorough democratization of the electoral process in the elections to come. After all, while the particulars of Russian interference in our election are still being investigated, the question of Democratic Party and Republican Party interference in the free exercise of voting is pretty clear!

But even under a more stable timetable, if current leaders in independent politics don’t pursue our opportunities to join forces and, instead, allow for a scattered field in 2020 where, for example, minor national parties such as the Greens and the Libertarians; various state-based parties; Americans Elect; Level the Playing Field; the Draft Bernie for a People’s Party movement; Stand Up Republic; Michael Bloomberg; the networks of African American and Latino activists chafing at Democratic Party politics-as-usual; and the community of nonpartisan reformers each go their own way, we will—in effect—be handing the status quo a free pass to continue business as usual.

At the 50 State Solution conference in California in January, the journalist James Fallows was a keynote speaker. Taking issue, I felt, with the large-scale

hysteria in progressive circles over the election of Trump, Fallows declared, “This is a creative, not a repressive era.” Well put, Jim! The contemporary independent movement has been, since its inception in the 1980’s, its high water mark in the 1990’s, and its continuous self-reinvention since then, a creative force. It has experimented with new and post-modern political paradigms, unorthodox and controversial partnerships that broke ideological and color barriers, and disruptive forms of electoral process. Now we can build on all that, leverage that, and expand that to create a blueprint for 2020. How to draw in, how to incentivize, and how to consolidate a joint 2020 process is a conversation that needs to begin now.

The “Third Party” RouteWith few exceptions, pollsters generally measure public dissatisfaction with the Republican and Democratic parties by asking whether people feel there is a need for a third party. The “yes” numbers have been consistent at 55% or 60% since the 1980’s.  Rarely (actually never!) do pollsters probe alternatives that are alternatives to parties. The third party question serves as a placeholder for “something other than the Democrats and Republicans.”

Being a veteran of a number of national party building efforts myself, I understand the appeal of the party route. I also understand the pitfalls of a party-based strategy. It narrows the process to an emulation of the major parties, not a good direction when the American people are so fed up with partisanship and the ways that parties serve themselves rather than the country. Arguably, the most successful independent parties in recent times have been “anti-party” parties, such as the Independence Party of New York, which elected Michael Bloomberg mayor of New York City three times. He governed as an independent and disrupted the partisan ecology, and the city was better for it. We partnered together over 10 years’ time, beginning in 2002, to try to bring a nonpartisan municipal system to New York, but we did not achieve that goal. The political parties (major and minor) were dead set against us, and the independent movement was still too weak to overcome them.

But the times they are a changin’. In their wisdom, the American people chose to conduct their 2016

The contemporary

independent movement has

been, since its inception in

the 1980's, its high water

mark in the 1990's, and its

continuous self-reinvention

since then, a creative force.

5

anti-party rebellion INSIDE the two major parties, to exploit their fault lines and wreak the maximal disruption there. Good for them!

As I see it, our goal should not be to propel a new independent party, but instead a new independent process. And, if we seek to

generate an independent presidential ticket, the idea that we should passively wait (and hope) for a viable and well-financed independent presidential candidate to show up is no alternative. Not in these times. A question, then, is can the independent movement stir the pot? I think we can and should! In my view, we need to do two things. We need to test the major parties’ interest in a sweeping democratization of the electoral and governing process, while simultaneously laying the groundwork for a coalitional independent presidential ticket. For discussion purposes, let’s call this approach an inside/outside strategy.

The Conduct of the Presidential PrimariesA movement took shape in 2016 to hold the parties and the bodies that govern elections (which, by clever, if not intelligent design, belong to the parties) accountable for their nominating process. We all saw—and some of us instigated—an eruption of public protest over the conduct of last year’s primaries. These protests—reactions to the exclusion of independent voters from participating in the presidential elections—brought public awareness of this form of voter suppression to a new level. How can a democratic nation, in which 44% of its citizens and 48% of millennials do not align with a party, permit primary rules that bar them? Add to that the conspicuous privilege accorded the superdelegates in the Democratic Party rules, the obvious bent of the “supposed to be neutral” Democratic National Committee (DNC) towards Secretary Clinton over Senator Bernie Sanders, and the demand for party loyalty placed by the Republican National Committee (RNC) and the DNC on all candidates for their nomination, and the primary season was as rife with conflict over the rules of the game as it was over any programmatic issues.

A few “reports from the field”: In Arizona, 30,000 voters—mostly independents from the state’s swelling 38% constituency of the non-aligned—

signed letters to the State Democratic and Republican Party chairmen (circulated by Independents for Arizona and Open Primaries) demanding that they use their authority to open the Presidential Preferential Primary Elections to independents. They refused. On primary day, with thousands of independents turning out because they believed they had the right to vote, combined with a grossly inadequate number of polling sites, especially in populous Maricopa County, the election was a debacle. Long lines, questionable vote counts, and charges of voter suppression from black, Latino and independent activists ensued. Elected officials scrambled to explain. But, in the November election, the Maricopa County registrar lost her re-election bid (as did Sheriff Joe Arpaio!). As Arizona attorney and longtime Democrat and civil rights leader Danny Ortega put it in an interview we did together in January 2016, given that 48% of Latinos in Arizona are registered as independents, their exclusion from the primaries is egregious. Ortega said:

So what do you have? You have a system that keeps people from voting in the primaries, the primaries decide who’s ultimately going to win in the general. And we have a situation where the candidates, in my opinion, are not being chosen by the whole community, they’re only being chosen by a select few … I believe that the current election system, particularly in the primaries, is really another mechanism for voter suppression because it keeps people from voting for who they want to.

Also in 2016, Democratic voters in Colorado were turned away from presidential caucus sites because party officials were unprepared and overwhelmed

Our goal should not be to

propel a new independent

party, but instead a new

independent process.

6

by the larger-than-expected turnout. Registered Republicans didn’t get any vote during the nominating season as the Colorado Republican Party canceled its caucus. Over one million registered independents were unable to participate at all. Two initiatives designed to fix these problems were backed by a coalition organized by business leader Kent Thiry and his group, Let Colorado Vote. Proposition 107 restored presidential primaries and ordained that they be open to all voters; Proposition 108—to facilitate unaffiliated voters casting a vote in down ballot primaries—passed at the polls in November, the former with 64% of the vote. This, in spite of numerous attempts to undermine these reform campaigns, including the state’s voter guide which used language crafted by the state legislature to describe both measures in a biased and misleading way. The voters weren’t fooled! (The legislature, however, continued to “manhandle” these reforms in its implementation legislation in 2017. Sadly, our efforts to defend the intent of the voters failed.)

I n New York, the state with the strictest closed primary rules, 3.2 million independent voters were excluded. To make matters worse, New

York has the earliest re-registration deadline in the country. Thus, those independents who would have been open to re-registering in order to vote in the

primary would have had to make the switch more than six months earlier. People who were barred from voting in the New York primary included 37% of voters under the age of 30; 15% of African American voters; 22% of Latino voters; and 35% of Asian voters. Young independents who wanted to vote for Bernie Sanders were shocked when they were turned away at the polls. Even Eric and Ivanka Trump—both registered independents—were locked out, unable to vote for their father.

A week before the New York primary was held, 150 activists gathered on the steps of City Hall to protest the closed primary system and to demand that the presidential primaries be open in the future. As I told Russell Berman from The Atlantic at the time, “The political parties in New York have the state on lockdown, and they’re very committed to protecting that.” You can see I have an inclination to understatement. Overall, during the 2016 primary season, approximately 20 million American independents nationwide were barred from participating. The corruption of party hierarchs became an issue in both major parties.

The Sanders Factor and the Pressure to Make AmendsThe Bernie Sanders campaign “burned” a shocking pathway through the primary season and bumped up against these limits. If you google “Democratic primary rigged,” you will find almost half a million articles and blogs covering the 2016 presidential election. WikiLeaks released thousands of DNC emails to and from party officials discussing how best to undermine the Sanders campaign. This behavior led to a recent lawsuit against the DNC’s transparent favoritism. Lawyers defending the DNC argued that the party was under no legal obligation to run a fair primary. It’s no wonder, then, that the Sanders networks have spawned a campaign calling on Bernie to form a third party.

The “mis”conduct of the Democratic primaries has remained a sore point with the party’s activist base. Faced with the prospect of having to unify itself in the wake of the Trump victory and the defeat of the “undefeatable” Hillary Clinton, the DNC empanelled

Overall, during the

2016 primary season,

approximately 20 million

American independents

nationwide were barred from

participating. The corruption

of party hierarchs became an

issue in both major parties.

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a Unity Commission charged with bringing different factions of the party together. Its first meeting was held in Washington, D.C. in May, and the first day was devoted to a discussion of party rules, including the questions of open presidential primaries and the superdelegate provisions.

As reported to me by Tiani Coleman, an attorney and former chair of the Salt Lake County Republicans in Utah—now a leading

member of Independent Voting and the head of New Hampshire Independent Voters, who attended the Unity Commission meeting as an observer for Independent Voting—Democratic Party leaders are well aware of the conflicts surrounding the open primaries question. The Sanders appointees to the Unity Commission were attentive to these dynamics. Predictably enough, though, the Commission’s interest in the open primary question turned on whether and how the inclusion of independents might help the Democrats win the White House in 2020. But for many independents, and for many Americans, it is no foregone conclusion that the preferred scenario for 2020 is to hand power back to the Democratic Party. Surely, the Washington Post/ABC News poll narrated by Caddell bears this out. Even 44% of Democrats surveyed believe their own party is “out of touch.”

The dynamics of the Unity Commission remind me of the circumstances we faced in the mayoral elections in New York City in 2001. Two terms of a Republican near-fanatic mayor who had sown racial division and polarization led the Democratic Party—with a five-to-one voter registration majority—to believe it would sail into City Hall. They were so confident of a win, they repelled any discussion of a coalition with the Independence Party (IP). The IP made its partnership with Michael Bloomberg, and Bloomberg won the mayor’s race, with independents providing his margin of victory. Locally, the Democratic Party refused to place any stock in independent voters or in nonpartisan reform. Big Apple Democrats believed they, and they alone, should have the monopoly on reform and good government. Talk about the foxes guarding the chicken coop!

The question of how the Democratic Party and the Republican Party nationally intend to relate to America’s now plurality independent electorate is already on the table. We know that the Democrats,

on the national level, have, as they did in New York, made very calculated—and costly—choices. Back in 2012, Independent Voting’s general counsel Harry Kresky and I began an eight-month dialogue with David Axelrod and David Simas, the masterminds of President Obama’s re-election campaign. Our dialogues were an effort to persuade the Obama team to reconstruct the 2008 coalition with independents that had secured his victory over Hillary Clinton in the Democratic primaries (30 states permitted independents to vote that year) and his general election win over John McCain.

Ultimately, though, Simas informed us that Democratic Party stakeholders had nixed the concept, insisting they could win the election with the Democratic base alone. They were right in the short run. However, insofar as this “benign neglect” caused the Democrats to hemorrhage independent support (Romney won independents over Obama 50% to 45%) the stage was set for the independent swing to Trump in 2016.

Both the RNC and the DNC went on record in 2016 opposing the use of open primaries in presidential elections. We want to know their positions for 2020. There are already some very creative approaches being introduced in connection with this question. Chad Peace and the Independent Voter Project in California proposed state legislation in 2016 that would create a single ballot in the presidential primaries and allow all voters to choose any candidate. The Secretary of State would provide the results of the primary, broken down by voters’ party affiliation or non-affiliation.

Lawyers defending the

Democratic National Committee

argued that the party was under

no legal obligation to run a fair

primary. It’s no wonder, then,

that the Sanders networks have

spawned a campaign calling on

Bernie to form a third party.

8

The parties could then count whatever votes they wanted for their nomination process. The resolution had two Republican co-authors and received votes from two Democrats in committee. Though it didn’t make it to the floor, I hope to see it come back around, in another legislative, or even legal, form.

Now that we are in the early stages of a run-up to 2020, the Independent Voting networks are laying tracks to engage with state parties,

with local elected officials of both parties, and with the DNC and RNC to determine whether, how, and on what terms non-aligned voters will be included in the parties’ primaries and nominating processes. Put another way, we seek to discover whether either of the two major parties is prepared to invest in a meaningful coalition in which independents are a genuine partner, or whether the parties intend to continue to ignore us or attempt to manipulate us into their own partisan framework. The “Rules of Engagement,” therefore, are a fundamental reform issue for 2020.

A Unifying Strategy for 2020However, if the engagement of partisan hegemony in 2020 is to include strategies that might yield a major independent presidential ticket with true ties to the on-the-ground movement, a process for coalescence among the disparate elements of the independent movement would have to be developed.

Beginning in the 1980’s, the question of whether and how to architect a unified independent political movement has been on the table. On the one hand, the barriers to coalescence have been ideological, meaning that unless there was agreement on political “program,” (in the traditional sense of policy and ideology) there could be no coming together. However, the template of the national Reform Party, which came into existence in the mid-90’s following Ross Perot’s first presidential run and Dr. Lenora Fulani’s second presidential bid, shattered that assumption.* A genuine left/center/right alliance—a fusion between the pro-socialist black-led New Alliance Party (which had run Fulani) and a center-right network of Perotistas—formed an experiment called the Patriot Party. I was Deputy

* In 1988, Dr. Lenora Fulani, the popular community organizer and developmental psychologist, became the first woman and first African American to qualify for the presidential ballot in all 50 states. She ran again in 1992.

Campaign Manager for Fulani in 1988 and 1992 and then, as one of several architects of the new coalition, became the editor of the Patriot Party’s newsletter. It was quite a challenging exercise in the politics and language of cross-ideological partnerships. In turn, Patriot pursued an alliance for two years with the pro-third party networks of United We Stand America, and with Perot himself, which produced the Reform Party. This unorthodox cross-ideological mating yielded a potent, if short lived, vibrant political alternative which sponsored a contested open presidential primary conducted online, via telephone and via mail ballots — the first ever. Ross Perot defeated former Colorado Governor Richard Lamm for the nomination of the being-formed National Reform Party in 1996.

After the 1996 election, this new national party came into existence with state-recognized ballot status in more than 30 states, and a reform platform that largely eschewed divisive and defining social policy issues. We were attacked by critics for “standing for nothing,” while in truth the Reform Party stood for something very important: a way to bring Americans together to engage the issue of power. Populist in its orientation but by no means right wing, the Reform Party had unlocked the door to cross-ideological partnerships: Put ideology on the back burner and move on to democracy, to unrigging the system, so that the American people could take back control of our political apparatus. Though this bonding was sometimes defined as “centrist,” or seeking the sensible center, this was a serious misnomer. Centrism seeks a mid-point on issues. The Reform Party approach was a radical departure from issue-based politics-as-usual because it focused on process and power, not program.

The brief but spectacular history of the Reform Party, including its enemies, internal and external, could fill a book. In fact, I wrote one

called Independents Rising, published by Palgrave Macmillan in 2012, and the story is too detailed and complex to recapitulate here. Suffice it to say, though, the Reform Party established some important precedents that can help us to navigate through today’s choppy seas.

It created the basis for the explosive—though short-lived—partnership between Fulani and the social conservative Patrick Buchanan, which defied traditional ideology. In that brief encounter, we saw

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that an alliance between left and right and between Black America and blue collar and suburban white America could be the foundation of a new pro-democracy, anti-establishment populist movement, and the Buchanan/Fulani experiment offers some precedent for a future link-up between Trump voters and Sanders voters. At the same time, the Reform Party flame-out taught us that being a party made us ripe for disruption. We learned that the temptation to re-introduce ideology—as Buchanan did in the unfolding of the 2000 Reform Party campaign—could overwhelm and destroy the party.

We also learned that when an independent presidential candidacy of weight and appeal—even to a targeted sector of the

electorate—gains traction, the hammer blows of the party establishment quickly follow. In a twelve-year period, spanning from Lenora Fulani’s historic 1988 bid, to Ross Perot’s explosive independent rebellion in 1992 and 1996, to the Buchanan foray into independent politics in 1999/2000, to Ralph Nader’s impactful 2000 run, the furor of opposition and attack was huge. The prospect of any elements of either the Republican electoral coalition or the Democratic electoral coalition being peeled away in alliance with independents sets off a firestorm of destruction. We can expect the same and more for 2020.

Not a New Party, but a New Nominating Process?More recently, and properly taking some lessons from the Reform Party into account, have been the sequential efforts of UNITY ‘08 and Americans Elect in 2012, followed by John Kingston’s Better for

America project in 2016. The first two designs sought to generate an alternative independent presidential nominating process, though they never produced a candidate. The latter transmuted quickly into the anti-Trump offering of conservative Evan McMullin for president in 2016. Several state party leaders who had been part of the Reform Party infrastructure—notably Phil Fuehrer of the Independence Party of Minnesota and Wayne Griffin of the Independence Party of South Carolina—gave their ballot lines to McMullin. (I played a role with Griffin in the South Carolina negotiations.)

Importantly, though, Peter Ackerman, a backer of UNITY ‘08 and the founder and main funder of Americans Elect, rifled through the debris of UNITY ‘08 and established its most conspicuous legacy: a successful legal challenge to the Federal Election Commission’s (FEC) position that UNITY was subject to the same contribution limits as parties or candidates. The D.C. Court of Appeals found that because what was being funded was a process (not a party or a candidate), UNITY could receive contributions in any amount. This decision laid the groundwork for funding Americans Elect in 2012 and established the principle that non-party actors could create out-of-the-box independent blueprints that federal regulators would have to adapt to. This is crucial!

Still, Americans Elect failed to produce a candidate of the caliber that Ackerman sought, but it did illustrate a major structural barrier to a competitive independent presidential candidacy: the presidential debates. Ackerman told me, and others, that being unable to recruit a mainstream competitive presidential contender in 2012 was largely a function of being unable to guarantee a slot on the Commission on Presidential Debates (CPD)-sponsored debates. Thus, he set out to do something about this problem.

The criteria for inclusion in the CPD-sponsored events made it impossible for an independent to gain entry. In 1992, Perot was the last non-

major party candidate to have access to the stage, and his admittance was the result of a gentlemen’s agreement between the RNC and the DNC. Level the Playing Field (LPF) came into existence, funded by Ackerman and directed by Cara McCormick, to attack the CPD’s exclusionary criteria and the FEC’s complicity in the arrangement. He chose a legal broadside against the 15% rule, which requires that

We saw that an alliance between

left and right and between Black

America and blue collar and

suburban white America could

be the foundation of a new pro-

democracy, anti-establishment

populist movement.

10

a candidate be showing at 15% in national polls before she or he is admitted. Though the admission criteria had been litigated extensively by previous independents, including Lenora Fulani, Ross Perot, Ralph Nader, and John Hagelin, LPF’s goal was to use the FEC’s administrative process and the subsequent litigation to undermine the legitimacy of the 15% rule and then force the CPD to guarantee a debate slot for one qualified independent presidential candidate.

Ackerman’s initiative was broadly supported within the independent and reform movement, gaining endorsements from an array of elder statesmen long associated with the independent cause. The prominent pollster and good friend to the independent movement, Douglas Schoen, prepared a voluminous dossier to support the claims. Green Party candidate Jill Stein and Libertarian Party candidate Gary Johnson were conscripted to join the complaint. There was some dissension over the question of how to determine who the single qualified independent would be, including from me. But the LPF initiative had a positive impact on two counts. Its extraordinary legal team, headed by Alexandra Shapiro of Shapiro Arato, persuaded a District Court judge that the FEC had been cavalier in the LPF request for a rulemaking procedure, in which the 15% rule could be properly reviewed. The District Court remanded to the FEC a mandate to thoroughly consider the complainants’ arguments and evidence. The Court testily told the FEC: Do your homework! Then, the FEC resubmitted a response, rejecting the request for a rulemaking again. (No surprise there!)

However, the second impact of the LPF initiative was to open the question of whether and how disparate forces in the independent movement might join together behind a single ticket. Was there a scenario in which the solution to the debates problem—namely, the guarantee of a slot for one independent presidential candidate—could be used to incentivize a unified campaign involving a power-sharing arrangement among a group of players?*

As Ackerman’s administrative process with the FEC was getting underway, Independent Voting’s general

* In 2002, Independent Voting (as the Committee for a Unified Independent Party) sought an Advisory Opinion from the FEC, asking whether independents would be allowed to aggregate the vote totals of several independent presidential candidates to achieve the 5% benchmark for federal funding in the subsequent election. Our hope was to create a structural and financial incentive for a unified strategy. The FEC ruled against us.

counsel Harry Kresky sent a memo to Shapiro outlining how a power sharing arrangement might be created, both to remedy some legal vulnerabilities in the plan, but also to suggest that Ackerman play a leading role in unifying the movement. Kresky wrote that, “While the capacity of such a process to withstand legal and political challenge is important, as important is how it can advance the formation of a unified, inclusive and democratic ‘third force’ in American politics.”

Were a power-sharing process to be undertaken, connected to a debates strategy or not, it would raise complicated issues of control, candidate selection and campaign messaging. For example, whether, and to what extent, pre-existing third parties—like the Greens and the Libertarians, or various state-based parties—would be willing to trade off ideological and “brand” control for a more coalitional and reform-oriented process for choosing a ticket is an open question.** Recently, state-based ballot status party leaders such as Phil Fuehrer of the Independence Party of Minnesota; Sal Peralta of the Independent Party of Oregon; and Wayne Griffin of the Independence Party of South Carolina have floated their interest in some kind of unification effort for 2020.

Then there are the particular opportunities for alliances created by the Sanders voter revolt against

** In 2004, Ralph Nader attempted such a strategy, though in that instance the unification was instigated around his candidacy. He was roundly rebuffed by Green Party officialdom, though he was supported by the Independent Voting networks, the remnants of the Reform Party, and a network of renegade Greens. The liberal press forcefully trashed the effort.  Evan McMullin attempted another version of this in 2016.

The second impact of the

Level the Playing Field

initiative was to open the

question of whether and

how disparate forces in the

independent movement

might join together behind

a single ticket.

11

the Democratic Party, the Trump voter revolt against the Republican Party establishment, the rising numbers of independents in the Latino community, and the black community’s eroding loyalty to the Democrats in the post-Obama era. More than one million African American voters who had backed Obama chose not to vote for Hillary Clinton, a sign of that erosion. As Fulani, who has long championed political independence for Black America, commented, “The issue of poverty in our communities will never be resolved as long as black people are denied voter mobility. If we stay put politically, we will stay put in poverty.”

Two Roads, Some ModelsTaken together, these circumstances point to the opportunity for independents to develop a multi-layered strategy for 2020. A version of an inside/outside strategy was architected in 1988 with two different candidates, which became known as the “Two Roads are Better than One” strategy. The “inside” candidate was Jesse Jackson, seeking the Democratic Party nomination for a second time with a greatly expanded Rainbow Coalition behind him. Jackson’s campaign set fire to a broad insurgency, pressing for equality of opportunity and an end to the tilted playing field in American political and economic life.

The “outside” candidate was Fulani, running as an independent, who built a Rainbow Alliance of supporters in all 50 states and who harshly criticized the Democratic Party for its mistreatment of Jackson. A stone’s throw from the Democratic Convention in Atlanta, to a crowd of 4,000, she famously said, “Jesse, you are a great leader, but you have led us to the wrong place.” Though Jackson never sanctioned the outside component of the 1988 effort, its appeal was nonetheless manifest as many Jackson supporters moved to endorse Fulani in the general election.

The potency of an electoral alliance between independents, who are unapologetically alienated from the political system, and the communities of color, who are increasingly repressed by that system, is clear. The number of voters identifying as independents is increasing in the black and Latino communities, particularly among youth. And, the links between these “outsider” constituencies are more pointed. Civil rights attorney Michael Hardy, who serves as General Counsel to the National Action Network and Rev. Al Sharpton, connects the voting rights of independents to the history of voting rights battles for African Americans. In testimony submitted to the DNC in 2016, Hardy said:

I was one of many who sat inside the U.S. Supreme Court on a brisk February morning in 2013 when the arguments were made in Shelby County v. Holder regarding the constitutionality of the 1965 Voting Rights Act. We all know the history of the struggle and the blood of Americans that soaked our soil to win the right to vote. We were shocked by the Court’s decision to strike down Section 4 of the VRA and thereby gut the power of Section 5’s pre-clearance requirements. We knew this was a dark day in our history and that it would lead to serious efforts to limit voting rights.

Additionally, for the first time, the inclusion of independent voters—now 41% of the electorate—in the presidential primary process has become a matter of broad public discussion. In some states, the primaries were open to independents, in others they were not. It is estimated that over 30 million Americans were denied the right to vote in the presidential primaries because they were independents. What we are seeing is a broadening of the traditional voting rights agenda.

Then there are the particular

opportunities for alliances

created by the Sanders voter

revolt against the Democratic

Party, the Trump voter revolt

against the Republican Party

establishment, the rising numbers

of independents in the Latino

community, and the black

community’s eroding loyalty to the

Democrats in the post-Obama era.

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Is A Single Candidate Inside/Outside Ticket Viable for 2020?A word on the legal issues that such a strategy confronts, were the movement to organize a single candidate to run both inside a major party and then as an independent. Forty-five states have adopted what are known as Sore Loser laws that bar candidates from competing in party primaries and going on to run as independents if they do not win the party’s nomination. The fact that most states also bar fusion—the option of running in a general election on the ballot line of more than one party, in which voters can choose which line they prefer to use to cast their ballot—means that a candidate is also barred from adding an independent label, if they win their party primary. Suffice it to say that the parties have engineered a “no exit” matrix of laws and regulations that close off gateways to political independence. If the Sore Loser principle were to be applied to presidential elections, an inside/outside strategy involving the same candidate would be prohibited. 

However, even if an inside/outside scenario were to be developed, there is ample precedent and argument that the Sore Loser

shackles do not apply at the presidential level. Simply put, and well argued by Richard Winger of Ballot Access News, “no minor party candidate for president had ever been kept off any state’s general election ballot on the grounds that he or she had run in a major party presidential primary.” That is, as Winger explains, until 2012, when the state of Michigan denied Gary Johnson the right to appear on the Libertarian ballot on the grounds that he had been a candidate in the Michigan Republican primary. This decision was challenged in the District Court. The Libertarian Party lost and has applied for a rehearing. 

Winger cites not only the numbers of presidential candidates who have run inside/outside (Theodore Roosevelt, Robert La Follette, Eugene McCarthy, John Anderson, Lenora Fulani, and Gary Johnson, to name some) but also points out that there is no basis for the application of Sore Loser laws in presidential elections because, according to the U.S. Constitution, votes cast for president in the general election are

actually votes cast for electors, not for candidates. It is true that votes cast for president in the general election are actually cast for electors. If this were not true, Hillary Clinton would be president of the United States today, not Donald Trump.

In any event, we can surely expect that were some kind of independent inside/outside strategy to evolve for 2020, it would draw a torrent of challenges from the major parties and their spokespersons in the major media. The call for (and the mechanisms for enforcement of) party loyalty are deeply entrenched. Let’s not forget that in the first Republican presidential debate in 2015, each of the 17 candidates on stage was asked to pledge support to the eventual GOP nominee, if it were not himself or herself. Donald Trump was the only one who initially refused to take the loyalty oath (although he went on to sign it in September, 2015).

A Call for DialogueIndependents are in a position to take advantage, not just of the disaffection with both parties and with the President, but of the new recognition of the systemic and cultural barriers to moving beyond them. The Democrats are enmeshed in trying to synthesize economic populism with identity politics, while taming the globalist ties of the party’s superstructure. Trashing Trump is surely a welcome distraction from that problem. The Republicans are balancing their populist voting base with their Wall Street embeds and their social conservative apparatus. All this, while trying to manage a federal government, including its national security, intelligence, foreign policy and military apparatus, all rife with internal conflict and partisan power struggles. Meanwhile, the American people are coming to view both parties as directly responsible for our sorry state of affairs.

What, then, is the independent vision of “otherness”? It seems clear to many—left and right—that America has to reconsider

its role in the world in order to grow and prosper. That, paradoxically enough, is part of the appeal of America First-ism, even though the Trumpian version comes complete with a build-up in military spending and a withdrawal from certain international agreements.

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Mustn’t “otherness” include a rejection of traditional liberalism and traditional conservatism, of the ideology of ideology? Mustn’t it offer a rejection of traditional political alignments? Mustn’t it push democracy and nonpartisan restructuring to the forefront? What does “otherness” mean for historically marginalized communities who were offered “identity politics” and not much else? And what of poverty, the maldistribution of wealth, the racial divide, and the profound weaknesses in our infrastructure and our educational and healthcare systems? Are there solutions to these problems absent there being a new process for finding solutions? And mustn’t the American people directly involve themselves in creating, not just consuming, this new vision?

How do the independent movement and the growing sector for nonpartisan reform come together to create political tools that are useful to the American people? How do we bring grassroots independents and the seething rebellion in the major parties together in the run-up to 2020?

This paper, by no means exhaustive or conclusionary, is intended to stimulate and to help frame a conversation within and around the independent movement about our collective prospects for 2020. I hope this paper generates comments, additions, critiques, and alternative paths and tactics. And, bottom line, I hope there is agreement that because of the state of our country, and because of the widening gap between the political elites and the American people, these are conversations we need to have.

Mustn’t “otherness” include

a rejection of traditional

liberalism and traditional

conservatism, of the ideology

of ideology? Mustn’t it offer

a rejection of traditional

political alignments? Mustn’t

it push democracy and

nonpartisan restructuring

to the forefront? What

does “otherness” mean for

historically marginalized

communities who were

offered “identity politics”

and not much else?

Jacqueline SalitJacqueline Salit is the President of Independent Voting, a national organizing hub for independent voters and activists, with affiliates and networks in 40 states. She is the convener of the biannual National Conference of Independents. In 2012, Salit authored Independents Rising (Palgrave Macmillan), and has spent more than 30 years disrupting the partisan status quo. She can be reached at national@independentvoting.org or 1-800-288-3201.

Many thanks to Independent Voting for its support in the writing and production of this paper.