Legal Commentary

Thomas Friedman writes today about the need for a meaningful third party in 2012. He writes:

We have to rip open this two-party duopoly and have it challenged by a serious third party that will talk about education reform, without worrying about offending unions; financial reform, without worrying about losing donations from Wall Street; corporate tax reductions to stimulate jobs, without worrying about offending the far left; energy and climate reform, without worrying about offending the far right and coal-state Democrats; and proper health care reform, without worrying about offending insurers and drug companies.

Jack Balkin argues that Friedman's argument misses the structural point. Friedman argues out frustration that President Obama, enjoying a huge electoral mandate and strong majorities in both houses of Congress, could not achieve more than the watered-down half-measures on the stimulus, regulatory reform, and health care. But, Balkin points out, the real problem is the Senate and its de facto 60-vote requirement; had Obama needed only 50 votes (plus Vice President Biden) to pass legislation in the Senate, the Democrats could have enacted far more vigorous legislation because they would have had to strike fewer compromises with more conservative Senators such as Nelson and Lieberman or moderate Republicans such as Collins and Snowe. I agree with Friedman's point about the Senate and the need to reform it. One political commentator (I think it was the Washington Post's Ezra Klein, but I am not sure) made the point a few months ago: You can give a minority party either the political will to oppose everything the president does or the means to oppose everything the president does; if you give it both, it effectively runs the show. That is what has happened in the Senate.

But there also is a broader structural point here, the common refrain from Sandy Levinson--that the criticisms from people such as Friedman ignore the constitutional, structural, and systemic defects in favor of focusing on human defects. Today's argument is no different. It is not enough to "develop 'third parties' to challenge our stagnating two-party duopoly" without also altering major structural features of the political system. Every state uses first-past-the-post voting, so a third party (assuming it is strong enough to draw significant votes) simply means someone is going to win an election with, say, 45 % of the vote Maybe that person will be the third-party candidate. But is the democratic ideal really to be governed by people who do not receive majority support from the relevant voting constituency (here in Florida, Marco Rubio leads a three-way Senate race with 44 % in the latest polls)? Anyway,even if the third party captures a few seats (likely at the House level), it will not be enough to meaningfully affect what gets done.

And, of course, at the presidential level, Article II requires the president to receive a majority of the electoral votes. And every state (except Nebraska and Maine, which combine for a total of 9 whole votes) allocates votes on a state-wide, first-part-the-post, winner-take-all basis. Thus, a third-party candidate can achieve only one of three things, none of which I would call a good outcome: 1) Enable someone to win all the electoral votes in states while capturing less than 50 % of the popular vote there, without capturing any electoral votes themselves; 2) Win enough states to deprive anyone of a majority, kicking the election into Congress, where the third-party candidate will not win; or 3) Miraculously win the presidency--then be unable to achieve anything because he lacks any partisan support in Congress.

In short, what Friedman and others repeatedly overlook is that the federal government structure was designed without thought to political parties (and certainly ideologically consistent political parties). And once parties developed (less than a decade after the whole thing started), the system was capable only of handling what Friedman derides as a "two-party duopoly." The problem is not parties or the people who operate within those parties; the problem is the structure in which those parties operate. The United States has never had a period of three major political parties; the system simply does not allow for it. It is fine for "people to be angry" and want to change the parties in power. But without changing (or even talking about changing) the structural and procedural rules, this goes nowhere.