Is 2016 The Year Of Campaigning Dangerously?

House Speaker John Boehner announced his resignation today, only a year after House Majority Leader Eric Cantor was defeated by a tea party newbie in a primary. In the GOP presidential nomination race, three candidates who have never held office are in the lead, holding between them the support of almost two thirds of Republican primary voters. It’s open season on establishment politicians.

Carly Fiorina beats Hillary Clinton in a Quinnipiac poll released Thursday, 44-43 percent, demonstrating the power of open primary debates, where Fiorina’s performance launched her from the early “kiddie” event of the first GOP debate to prime time for the second Republican face off. Fiorina, like Dr. Ben Carson before her, is slowly catching up to front runner Donald Trump, and like Trump she is beginning to get a lot of earned media, including appearances on both cable news and late night talk shows. Meanwhile Hillary Clinton continues to flail in the polls, seesawing with Sanders week by week as to who wins Iowa and New Hampshire, the first states to hold primaries, and with Sanders and an as yet unannounced Joe Biden together catching up to her nationally.

It’s the year of the outsider, the commentariat tells us.

But that may prove true in more ways than they think.

Since very few straw polls, and no primaries or caucuses, have happened yet, debates are taking center stage in election coverage.  Democrats had denigrated the GOP for its “clown car” of almost 20 contenders, and FOX and CNN were forced by logistics to split GOP debates into a prime time event for people getting over 2-3 percent in polls, and a junior varsity debate earlier — though the prime time debate itself has had 10 or 11 candidates, prompting some Libertarian wags to say they hope the GOP will still favor having more than only two candidates after the primary selection process is over.

The DNC plan was to restrict debates to only 6 “sanctioned”  debates between Democrats. If you are a Democratic candidate — Harvard professor Lawrence Lessig, Senator Bernie Sanders, Governor O’Malley, former Senator Jim Web, former Senator Lincoln Chafee, Vice President Joe Biden — and you participate in an outside primary debate between Democrats, Debbie Wasserman Schultz will block you from the six nationally televised and sanctioned debates. With no television exposure, your chance of competing with Queen Hillary is much diminished.

But what if you speak somewhere else? All the candidates do that every week. And what if the speaking event is a debate — just not with other Democrats? A former local Ohio television journalist, Ben Swann, with Ron Paulish predilections and a new media platform, claims to be “actively in dialogue with both candidates,” Senator Rand Paul and Senator Bernie Sanders, to have a libertarian-leaning capitalist versus democratic socialist debate, before the GOP or the Democrats have even finished selecting a nominee.

Both of these candidates could profit from the coverage, helping them in their own ongoing respective primaries as well as with fundraising and earned media. If Swann pulls off this event, it’s hard to believe other venues, including the exploding number of new media platforms, won’t copy it, with debates featuring Senator Ted Cruz against Governor O’Malley, etc. They might not be carried on live TV, but clips of any such debates will be replayed the next day, and they will earn the debaters interviews and other coverage.

Besides AllowDebate and the possibility of a Paul/Sanders showdown, a third threat to an establishment controlled election is a lawsuit to be filed September 29th in federal court by former New Mexico Governor Gary Johnson, against the Commission on Presidential Debates. Johnson, who left the GOP to win the nomination of the Libertarian Party in 2012, is best known recently for a humorous stunt in March at CPAC2015 where he mimed cardiac arrest while in a debate with a woman who claimed marijuana increases the risk of heart attack. Since then he’s become the CEO of a West Coast marijuana company and seems to plan on trying to get the Libertarian Party nomination again for 2016.

But Johnson’s advisers (who included former Trump guru Roger Stone back in 2012) and campaign staff say he is unlikely to be the sacrificial victim for a quixotic Libertarian campaign unless the Libertarians are assured at least the possibility of being in the post-primary presidential debates. Hence Johnson’s lawsuit.

Estimated to run up $800,000 in legal bills, the suit has been put together by Reagan administration Constitutional lawyer Bruce Fein, whose work on opening up political debate includes getting rid of the Fairness Doctrine — an FCC policy which had the result of coercing broadcasters into presenting only two centrist viewpoints, liberal Democrats and Rockefeller, establishment, Republicans. Fein’s Johnson suit will be an anti-trust suit, alleging that the Commission on Presidential Debates, populated and controlled by only establishment Democrat and Republican Party operatives, limits the candidates allowed to debate only to the nominees of those two parties — even if other candidates like Libertarians or Greens have managed the extremely difficult task of being on the majority of state ballots so they could earn enough Electoral College votes to win an election if voters knew they were running and considered them viable because they were presented in the same way on television and in the debates as the GOP and Democratic candidates. Fein further alleges that the Debate Commission is a business in restraint of trade, since the Republican and Democratic consultant class raise billions of dollars now to pay themselves during the campaign season, and raising the money is dependent on excluding independent competition for donor dollars.

So though most might still think it unlikely, Courts may be deciding within a year whether the Presidential Debates will for the first time include a Libertarian or a Green. As many Americans have griped in the past few years, what SCOTUS or the other courts will do may not be what you’d expect. And in recent years, some of the more presentable Libertarian candidates — like Robert Sarvis, who ran for Governor in Virginia in 2013 — have been getting 5 percent of the vote, instead of their traditional 1-2 percent, even while spending much fewer dollars per vote than Democrats or Republicans, who often spend $10-20 for each vote they receive, and reach a point of diminishing returns in advertising. (Third parties are lucky to have $1 to spend per vote.)

The two party duopoly is somewhat baked into the American electoral system, unlike European parliamentary systems. The U.S. has winner-take-all jurisdictions usually featuring two candidates, one of whom, usually a Democrat, will tax Americans and regulate away their choices and opportunities to buy the votes of organized interest groups like government sector unions and bailed out banks (Romney’s 47 percent rightly understood), and his or her usually Republican opponent, who often only says he won’t do it as much or as quickly.  But the two party system has been suffering as of late, with 40 percent of voters deciding not to vote for either of its candidates, with Governor Sarah Palin denouncing the consultant class, with pundit Dick Morris going kersplat in 2012 with his predictions that Romney would win, and Karl Rove perhaps only hanging, according to Trump, on by a few fingers.