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CONVERSATION

Third Party/Independent Politics

A Brown Bag Lunch with
R. Clayton Mulford

Wednesday, October 25, 1995

Clay Mulford, general counsel and founding director of United We Stand America was also the chief counsel and campaign manager (1992) for the Perot '92 Presidential Campaign. Mulford, a prominent figure in the area of election law, has concentrated many of his efforts in the fields of ballot access and campaign reform. He is on the board of trustees for the Citizen's Research Foundation and a member of the national advisory committee for the Money, Politics, and The Public Voice Project of the League of Women Voters Education Fund. Currently, he is a fellow at the Institute of Politics.

Sponsored by The Joan Shorenstein Center on the Press, Politics and Public Policy, Kennedy School of Government. The following transcript has been edited for this assignment.

CONTENTS


THEME KEY
Clay Mulford
Candidates PartiesElectorateStrategyIssuesMediaMoney
Perot Campaign '92

Perot's Role in '96

Candidate and Platform 		Rationale for New Party

Rationale for Party, II

Perpetual Incumbency

Wasted Vote

Mainstreaming Centrists

Candidate and Platform 		A "Centrist Movement"

The Perot Voter

Independent Vote in '96 		Candidate and Platform Insider Politics

Perpetuating Incumbency

Rationale for UWSA

Rationale for New Party

Collapse of the Left?

Extending the Platform

Candidate and Platform 		Campaign Advertising

The Media

Insider Politics

Media Credibility 		Insider Politics

FEC Regulations

A "Centrist Movement"

Principally I want to address the ideological background of the third party or independent movement, and its foundation in the objections that are widely held by the public to the way politics in the United States currently operates. The independent movement is a "centrist" one; in short hand, economically conservative or realistic and socially tolerant. That ideological profile is not newly dominant. We believe it has represented a majority view in the country for some time. The current levels of support for alternatives to the established parties are not a shift in ideology, but a pragmatic reaction to the process of politics.

The statistics on people's faith in government are disturbing. Nineteen percent of people say that they trust the government to do the right thing. Seventy-nine percent now express the belief that those serving in office will do whatever it takes to stay in office. These figures were reversed 20 to 30 years ago. My view is that this doesn't represent an ideological orientation left, right or center. What has happened is that the centrists have become increasingly disturbed with the practice of politics.

That unease evolves from two factors. First, the rise over the last 30 years of campaigns operated through the media -- the rise of television advertising, the costs that places on campaigns. [See Berkovitz, Political Media Buying Guide.] Second, the legal structures built around the political process from the well-intentioned but ultimately misguided campaign rules established in 1974 in response to Watergate. [See Primer on Campaign Financing.]
[CONTENTS] [THEME KEY]

Campaign Advertising

Starting about 30 years ago, campaign advertising began to be the principal means through which candidates sought election. This reached its nadir with the rise of the 30-second attack ad, a reliance on issues peripheral to the real concerns of voters, and increasing dependence on emotional appeals. Candidates on one hand, for example, saying, "If you don't vote for me, social security is in danger." Or on the other hand saying, "Communism will come about if we don't act now to protect your rights to the free market system." Polarizing hot buttons are identified through focus groups and pushed in advertisements. Fear is the principle motivating factor.

The belief is that polarizing, emotional advertising works. It gets people out to vote. It pushes the opponent's negatives up. A corollary principle is, "Don't discuss anything substantive or long term; people aren't interested."
[CONTENTS] [THEME KEY]

The Media

Turning to the "free media" as opposed to paid media, you see a similar circumstance with the rise of the science of political races. For example, campaign managers and campaign staff do opposition research to uncover material about their opponent and deliver it to the media. The media than prints it under the theory that the "character" of a candidate is the principal issue of a campaign.

I remember being surprised at how well that process works when I distributed information that showed that the Perot campaign spent far less, not more, than the Clinton or Bush campaigns. [See Luce, Perot '92: Impact of Free Media.] The process is almost elegant in how easily it works, in how much the media want to be manipulated. They have a story to file every day and you give them the story to write, they write it.
[CONTENTS] [THEME KEY]

Insider Politics

What has evolved where there is an inside political world and an "outside" -- the rest of America. The inside political world is fascinated and consumed by how the horse race is run and how those negative ads are put together; how the media is handled and how a candidate reacts to a difficult story. That is how you test someone's metal and that is what is key. That is what is important.

However, to the rest of America, it seems a process divorced from the issues that they face everyday. They feel, for all the rhetoric, that nothing really seems to change. And they are right.
[CONTENTS] [THEME KEY]

Effects of '74 Reform

Now, add to that the complications wrought by campaign finance and election laws enacted in 1974. In effect, the structure is a snapshot taken in 1974 . We have basically locked in the world as it existed then and added to it layers upon layers of regulations that enhance incumbency. My background is as a securities lawyer. When I first got into election law, I was very surprised at the way it was structured. I think anybody would also be surprised. I thought, "Ah ha. The problem with the election laws-soft money, avoidance rather than compliance-is that the three Republicans and three Democrats on the Federal Election Commission must get deadlocked loopholes in the rules on soft money, rules that permit you to sell access to the President for $100,000, etc. are due to 3-3 ties preventing enforcement.

That is wrong. The only way that you can make sense out of the way the election law works is not to look at the Republican versus Democrat paradigm that is built into the law. In opposition the paradigm is incumbent versus challenger, with the interests of incumbents of both parties being much more similar with each other then with challengers of their own party. Regulations that benefit incumbency pass six-zero and are enacted, not challenged. Nothing is done to level the playing field for challengers. [See Watson, The Effect of Campaign Finance Legislation on Presidential Campaigns.]
[CONTENTS] [THEME KEY]

Perpetuating Incumbency

FEC actions against challengers out number those against incumbents six or seven to one. Why is that? Are challengers a dangerous group of people? Are challengers bad for democracy? Incumbents have dramatic re-election rates. In the year of "revolution," 1994, the re-election rate for incumbents was 91%, a statistic some people find surprising. Overall in the last 20 years the re-election rates have hovered between 94 and 96%.

The system of incumbency is funded by PACs. PACs have a very narrow, sometimes laudatory, but narrow focus and interest. Whether it is the American Gas Association or the Sierra Club, people that are operating those organizations in Washington monitor legislation for the impact on their very narrow specific interest. You have what some call the rise of interest group pluralism, where governing bodies balance interests among a large number of very narrowly focused groups.

For the rest of Americans who aren't in the process, they see the perpetuation of incumbency and the rise of a political class, in a system that appears to be corruptive. Left outside the system are broad-based, long-term, inter-generational issues. There is no group that sits and watches and monitors legislation for it's impact on long term inter-generational process-driven or economic issues. Term limits and the balanced budget amendment, for example, are widely popular because they are a way for the public to express dissatisfaction with the process. It is a way to try to force issues of long term importance.
[CONTENTS] [THEME KEY]

Rationale for UWSA

Following the 1992 election in looking about at the political landscape, we thought parties are not the issue. Parties are really nothing more than an artifice of the laws. Congressmen or congress woman that run for office run their own campaign. They go to one-stop campaign shopping center labeled Democratic or Republican. At that shopping center they pick up a pollster. They pick up a focus-group analyzer. They pick up a direct mail specialist. They pick-up a campaign manager and than they run their own campaign. Parties are there to provide what would otherwise be an illegal contribution, but as far as party platform, or ideology, no candidate really pays much attention in formulating their campaign. They run their own race and they run the race independently of one another.

United We Stand America looked at that process, looked at what it produced legislatively, looked at a system of incumbency and how that incumbency was financed through a system of PACs. We asked "Why aren't these long term, intergenerational, ideological centrist issues addressed?" And we thought that the broad based interests weren't a part of the "interest group pluralism" system. Average citizens have no resident lobbyist in Washington. There was no organized system to monitor and hold accountable congressional voting records on those issues. The idea behind United We Stand America was to organize the centrist group in the population in order to monitor legislation and develop a sense of accountability in Congress for longer term, non-partisan, economic issues.

It was successful judging by certain of it's legislative initiatives. And unbiased commentators on the issue I think would agree that UWSA has had a significant effect on at least a number of legislative initiatives on the number of people that had been involved in monitoring legislation.
[CONTENTS] [THEME KEY]

Rationale for Party

So why the switch now to an independent party? As I say the thought was always to resist becoming a political party. Political parties weren't the problem. Political parties are nothing more than a system to find and fund candidates. That was not what United We Stand America wanted to address. But over time, the realization was reached, reluctantly, that politicians tend to be motivated better or more effectively by fear, particularly fear of losing re-election than by ideas of longterm vitality of the nation's economy, for example. In addition, the lack of competition was believed not to lend itself to a logical, quick-fix change.

We think competition is good for anything. Without the competition of the 1992 election the deficit would not be an issue. Now the only debate is whether to solve the deficit in seven years under the Republican plan or ten years under the Clinton plan. That would not have happened without competition in the 1992 election. It is for that reason we believe we won the 1992 election. Competition stimulates ideas, stimulates people's involvement, and we hope will now stimulate the drive for campaign finance reform.

The shift to a party is an effort to install a sense of competition in the process, to motivate incumbents who have everything to lose and nothing to be gained, to change the system of campaign finance. And with that I would be glad to discuss anything you would like to discuss.
[CONTENTS] [THEME KEY]
QUESTION AND ANSWER
MARVIN KALB (Director, Joan Shorenstein Center): OK. We will certainly go to questions almost immediately. I am going to take the liberty of asking the first one. Why is it Clay, that despite everything that you have said in describing the motivation for the establishment of United We Stand America, it seems in the eyes of many simply a vehicle for the expression of one man's political agenda and one man's political ambition. That may be totally unfair, but that is certainly the widespread impression. How working from the inside can you change that? Is it desirable that it be changed since he is the man with a lot of capital to make things happen. Are you all uncomfortable with that generalization and how do you handle it?

Perot Campaign '92

MULFORD: There is widespread misunderstanding of the Perot candidacy of 92, being exemplified by your question. Understanding Perot in a way is elemental here. Perot considered himself part of this group, this outside group that watched the insiders conduct politics with nothing really changing. He saw himself as an emissary, not a participant. The money is an interesting point, because to the media it gave him credibility as an independent candidate without which he probably would not have had the credibility that was necessary.
[CONTENTS] [THEME KEY]
KALB: How did that work? I mean how do you get credibility for money?

Media Credibility

CLAY: Because the media believed that he could launch a candidacy, he became a credible candidate immediately. There are very few people on the political landscape that can launch an independent race. And Colin Powell is one because of his popularity, but the group of people that the media would take seriously as independent candidate is limited.

Perot was number one in the polls at a time that he had spent only $800,000 and when Clinton and Bush had spent 22 million dollars and 23-1/2 million dollars respectively. The money did not drive the popularity in the polls, the issues did.

And when he withdrew from the race he was truly surprised at the reaction of people who were in favor of this candidacy who had [made him] the emissary of their message, equally surprised that those that were opposed to his candidacy tried to vilify him personally as the emissary of the movement that he thought he was representing.

Going forward from there, I think that Perot has become a political figure unquestionably and I think he has recognized that and come to terms with it. But the way the law is structured makes it virtually impossible for someone without that wealth to run an independent candidacy. Let me briefly explain why.
[CONTENTS] [THEME KEY]

FEC Regulations

Because of the rules that were enacted in 1974, a republican and democrat candidate receive 15 million dollars of the matching funds in the primary. They received 15 million dollars to host the convention which will be covered by the networks, all three of them for three days. It is not a convention, it is a coronation. There hasn't been a brockered convention in at least 20 or 30 years.

They also will receive when the convention is done, a check of 60 million dollars each. So they are getting 90 million dollars in tax payer money. In addition they will receive 15 million dollars in coordinated party expenditures, can raise 5 million dollars for a compliance fund and get amounts in the neighborhood of 20 to 50 million in soft money. You add these up and you get to a number well in excess of 120 or 130 or 150 million depending on where you put the soft money. But in hard dollars about 120-125 million dollars. 90 million coming from taxpayers.

An independent candidate for President must raise money 1,000 dollars at a time, a maximum contribution. Republican candidates have stayed out of the race for president because it is too hard to raise 20 million dollars, what some call the entrance fee for the primary. People like Jack Kemp, Dan Quayle; they don't want to spend the time to raise the money. If $20 million is difficult to raise $1,000 at a time, $120 million is that much more difficult to raise.

In addition, an independent has daunting additional tasks. Ballot access requirements which take your attention and absorb a significant amount of money. To say that ballot access laws are Byzantine is a misnomer because that implies at some level there is reason or logic or a pattern, and there isn't any. The ballot access laws are designed to prevent access. Incidentally, many people in the ballot access movement are from the minority community who want to improve their representation by having the right to have a line on the ballot.

You add together $120 million disadvantage and the increased costs and expenses of ballot access, and it's a virtually unsurmountable task unless you have very significant personal assets. That is not the way it should be.
[CONTENTS] [THEME KEY]

Rationale for Party, II

The idea behind forming the party now, as I understand it, is to reduce the financial burden on potential independent a candidates so that someone could run as an independent, who then "only" will need to raise the money to mount a campaign.

An independent candidate can receive funds from the federal government but only after the election and the problem is getting the money to run the campaign. An independent candidate, so long as he or she receives over 5% of the vote, gets a proportion of the $60 million grant given the republican or democratic candidate equivalent to his or her proportion. For example, if Perot had not spent his own money, and received 20% of the vote (the average of the opponents therefore being 40%) he would be entitled to a post-election grant of half the general election grant they received by the republican and democrat nominee. In this case that would have been approximately $30 million. The problem is it comes after the election. John Anderson, for example, filed lawsuits to try to force banks to loan him money based on the expectancies after the election. He lost those cases because banks don't have to follow what people may or may not believe will be the results of an election. So daunting tasks face an independent.

KALB: What is your relationship to this effort now to form a third party ?

MULFOLRD: I don't know what it is. [LAUGHTER] I am I guess an advisor on legal issues.

KALB: But sympathetic to the whole and eager to help?

MULFORD: Yes.

KALB: OK, so, questions? Yes?
[CONTENTS] [THEME KEY]

Perpetual Incumbency

WOMAN: Clay, could you explain why if the third party initiative is successful why in say 20 years we won't see a situation of a three party system where it's incumbents versus challengers?

MULFORD: That's a great question. But the issue, or a chief issue, driving the party is campaign financial lobbying reform. If successful the system itself will be altered to foster a more level playing field. I think what will happen is that the extremes of one of the two other parties may become the third party and one of the major parties will adopt a centrist ideology, which is, as I mentioned, basically fiscally responsibility and social liberalism though I grant you that the two merge on issues like income distribution) but the argument I often hear is won't we become another Italy? The risk is that a small fraction of the population will potentially hold veto power over legislation. But the answer to your question about incumbency and election financing is that there always will be advantages to incumbency, but they've never been greater than they are now under current law and those advantages are artificial and can be removed.
[CONTENTS] [THEME KEY]

Wasted Vote

MAN: How do you deal with the fact that when you throw up a third party or a Perot, he basically undercuts the support for the person who is sort of closest to him ideologically, so that Clinton gets elected instead of people who might've wanted Bush second to Perot.

MULFORD: This is the classic problem with which a third party candidate is faced whether or not the appeal by other candidates to a wasted vote syndrome damages their candidacy. My response to that is why do we limit the choices to the two party nominees? Why is the spoiler the third party candidate? Why isn't it one of the other two candidates? In looking back over the period of the last 20 years, I don't see any real -- it's a technique that is used to diminish the importance of the third parties by the established parties and I think it's not merited.

MAN: But what do you mean, it's not merited? Isn't there --

MULFORD: The argument's not merited.
[CONTENTS] [THEME KEY]
WOMAN: What do you think of the theory that actually the structure in American politics is that when a third party emerges with some sort of platform or issue that has been unacknowledged by the major parties and a surge of sentiment follows for those issues the other two parties adopt the platform and the third party fades away? Secondly, I've always wanted to ask this, who are the Perot people and how would they feel about having their issues coopted into a major party?

The Perot Voter

MULFORD: Let me answer the second question first. I think demographically the Perot voter is disproportionately young, the strongest group in '92 was first time voters, based on age not just alienation; Perot's weakest groups were the elderly and southerners. They tend to be working class people, blue collar; I think Reagan Democrats in some instances but curiously the proportion of vote going across the political spectrum -- liberal, moderate, conservative -- was uniform. The way we would explain that is dissatisfaction, not with an ideology, but with a process, and that's the best way to understand the Perot voter.

[See also: The Perot Vote and "Perot Voters" in Belmont, The Evolving Third Force.]
[CONTENTS] [THEME KEY]

Mainstreaming the Centrists

On the first issue, I think you're exactly right. Historically what has happened is an issue rises that is then, if there is sufficient popularity, becomes part of a major party platform. You know the rise of the Republican party is interesting. It's the last major party that evolved. They took a majority of the house two years [after they were founded]. They would not even be able to qualify for the ballot and run candidates for those races under today's laws. The legal structure that has built up around fear of the progressive movement in the 20s, when ballot access restrictions were imposed and the campaign finance laws of the 70s prevents a vitality or dynamism that could exist previously.

I think what's most likely to happen is that the current labels will survive due to the legal structure, and one of these two shells, the Democrats or Republicans, will adopt the centrist viewpoint and either on the left or on the right, or maybe both, a "third" party will emerge.
[CONTENTS] [THEME KEY]

Collapse of the Left

MAN: You point out that in the 1994 election the drop in terms of incumbency reelection was only from 94 to 91% and yet look at the ideological shift and its consequences from that 3 percentage point shift. It seems to me that relates to this question of ideology and whether or not the problem is in no small part because the Democratic party has collapsed in terms of its ideological function as the left-wing party of the power of anti-concentrated power. It no longer resembles the party of the New Deal but has become an adjunct of what would once have been called a broadly Republican philosophy 50 years ago so that we have a politics, as someone described it, that runs in Washington all the way from the extreme right to the extreme center and no further.

Is it a question of revitalizing the center or in some ways revitalizing the Democratic party so that it presents an ideological or ideas viewpoint that actually stands away from the coordinates of political and economic power that most Americans really seem to, on an underlying basis, most profoundly object to?

MULFORD: Again, the precept here is that current political sentriment, the angry or radical center, is not an ideological shift. It's a fact that the majority of the population is not ideologically motivated. For the inside baseball crowd, the political junkies, the people that operate the Democratic and Republican party, the campaign activists and probably many in the media and people that follow politics, certainly everybody at the IOP, tend to have more pronounced political views and tend to be more the extremes. Strong Republicans and strong Democrats are now in total only about 25% of the population. This is not about idealogy or an ideological shift or ideologically motivated issues, it's a process or good government issue.

I think the progressive movement of the 20s you allude to was founded on economic issues and wealth distribution; my brethren in the ballot access and campaign finance movement tend to be considered the left in that want to make the system more democratic, more open. But I would argue that opening up the process is neutral, idealogically. And I am long term very optimistic about that. As information is available on a more widespread nature and alliances can be formed, not through party structure but through issue oriented alliances.
[CONTENTS] [THEME KEY]

Extending the Party Platform

MAN: I'd like to pick on this question. I come from Germany and we've got some experience with parties and that worked very well but we've also got now experience with some independent parties and this experience was not so great because the impression, and I've got at least, is that they got themselves lost in the political process because they started from the same position like you do, criticizing the process, criticizing the corruption and so on and certainly with justified arguments but what their problem is right now is that they have really trouble to define their own identity within the political landscape so after the first success people don't know really anymore why should we vote for them again? They can't really change it, they struggle about the same issues and we don't really know for which reasons we should vote them except for these constructive criticism reasons which may be justified but I think the people still also look for some political programs and that's why I would like to ask you as how important you consider a political program and in which direction this can go?

SECOND MAN (Italian journalist Paolo Mancini): I'm sorry to be a bit provocative but I have my child, 8 years old, and he's going to King school. It's not a real wealty part of Cambridge. A lot of blacks in the school, and he's already asking me why black are so poor. I have trouble in giving him an answer. Listening to you, I'm sorry to say this, I have an answer. Because there is no competition between challenger and incumbent.

The parties have to have a program more serious than this! This is what happened in Italy. [Former Italian Prime Minister Silvio Berlusconi] won against corruption but nothing is behind this platform; there is no idea, no program, nothing. And you're saying there is no competition between challenger and incumbent and this is the answer? I don't think so..

MULFORD: I understand your point and I'd like to make two points in response. One is as far as the power of minority populations in the United States, that power is restricted by legal constructs. Fusion, for example, is a concept that is not allowed in any but two states, where a party could get on the ballot and endorse a candidate, not run their own candidate. For example, an African-American party could have a line item in a state and if the incumbent won by 30,000 votes and received 50,000 votes on that ballot line item, I think that that would have an impact on the legislative agenda of that candidate. So the process matters. Ballot access restrictions, whether *** proportional representation or mere choices, restrict representation and discourage participation in the process.

Second, the ideology of a party I don't think is unimportant, but I think the issue that is driving the alienation of the public from its elected institutions is the manner in which politics is financed and the legislative consequences of that .
[CONTENTS] [THEME KEY]

Perot's Role in '96

MAN: What sort of role does Mr. Perot want to take in the shaping of the platform and what happens when, in the course of the next presidential campaign, a candidate emerges who seems to be alternative to the Mr. Perots as the standard bearer for this independent party and what happens if he brings to this new platform issues that Mr. Perot disagrees with? I mean how is that all going to play out? Because we've yet to sort of read any place a definition about what the party platform will be, will there be congressional candidates, what will Mr. Perot's involvement as the spearhead of it and then this hypothetical that everybody's talking about that this party is actually being formed for an independent presidential candidate, fill in the blank who that is, perhaps Perot, perhaps somebody else.
[CONTENTS] [THEME KEY]

Candidate and Platform

MULFORD: The idea behind the party is (A) to generate re-election concerns to motivate enactment of legislation on reform issues, lobbying and campaign finance issues. That's why no candidates on the congressional level; (B) to provide ballot access for someone who is not independently wealthy but who could raise money and thereby to encourage them to run as an independent.

As a practical matter, I see a difficulty. The kind of person that Perot would support is going to be precisely the kind of person that would be very hesitant to take on this notion that he or she would be influenced by Perot's feelings on issues. I think that there is going to be something that will need to be ironed out and that the reins around it will have to be very, very loose indeed to make sure that the appropriate person is willing to do it.

As far as the platform goes, I think that there is sufficient support for Perot and the level of his -- the public awareness of him is sufficiently great that it makes the ballot access drives easier. When he has gone on TV in San Diego or San Francisco or elsewhere in California, the number of people registering in the new party goes way up. He has the ability to influence that and the ability to get free media time to be interviewed, so he is an important galvanizing force at this time. I think unquestionably the platform will include campaign finance reform and lobbying restrictions. That's given . As far as specific economic issues, I don't know how that will turn out or how it will be resolved.

There's a chicken and egg problem here. I wish we were at the end, but right now it's just a vision. Even with the success in California, there is no party yet so there can be no candidates. And there can be no candidates if the party fails to come into existence, in other words with the ballot access in California and in 49 other states. Then maybe there will be a candidate, maybe there won't be. So a lot of it is evolving as it goes.
[CONTENTS] [THEME KEY]
KALB: Clay, before we let you go and just following up on that question. Look a year ahead, are we going to see a meaningful challenge by a third party in the presidential campaign next year and who's going to win it?

Independent Vote in '96

MULFORD: Who's going to win the independent vote? I think you're going to see increases rather than decreases in third party and independent candidacies because of the availability of information, and I'm optimistic that campaign finance reform will occur because it should occur, it's in the interest of the country that it occur. I think as a result of that you will see a more vibrant system.

I think there will be a significant third party presence. How the race will turn out, I don't know. I think Clinton will be much stronger than people expect. I've been saying that for a year. He's a very effective campaigner. His pattern in Arkansas suggests he likes campaigning and is extremely good at it and I think he's going to be a formidable force. I think the extreme right on social issues disturbs many people and that he will attempt to place himself in the center as the republican candidates play the right way to win the nomination. As a result he will be a stronger candidate than people currently expect.

INTERVIEWER: Clay, thank you very much for being our guest this week. [APPLAUSE]
[CONTENTS] [THEME KEY]

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