The Primary Pariahs

For decades the two major parties have shut out outsiders and nontraditional candidates from running for president, especially those clamoring for campaign finance or other systemic reforms. Looking at past and present primary elections, a pattern of exclusionary party tactics and unfair media coverage reveals the powerful legitimizing force the parties and the press play in deciding who gets to participate in the primary — and who doesn’t.

“I respectfully demand inclusion in this debate!” shouted Larry Agran from the back of the auditorium, his voice barely audible to viewers watching live on television. It was 1992, and Agran, a relatively unknown candidate and former mayor of Irvine, California, was running for president as the “longest of long shots” in the Democratic primary. Agran lacked the typical credentials of most serious candidates for president, however, as a well known urban specialist and vocal critic US military spending, he was not a typical local politician. As executive director of the Center for Innovative Diplomacy, he played a unique role as a “global mayor” pursuing issues of international trade, arms reductions, and human rights, earning recognition by the United Nations. With the Cold War over, Agran called for a major reduction in military spending, suggesting the money be reinvested into America’s cities — a policy that earned him support from the US Council of Mayors. Yet, as media critic Joshua Meyrowitz explained in his analysis of Agran’s candidacy, from the beginning, Agran’s candidacy was ignored by the press. When reported on, he was treated as a long-shot candidate, called a “dark horse” and “an obscure contender.” Agran was barred from most televised debates on the basis of, according to Meyrowitz, “criteria that seemed to shift as he tried to meet them.” When asked for their reasoning, media executives told Agran, with catch-22 logic, that he had not earned the right to media exposure because he had not received enough attention in the press.

Facing exclusion, Agran found that the only way to become visible was to be disruptive, protesting loudly along with supporters outside debates. During one debate he successfully forced his way onstage, with sympathetic audience members repeatedly chanting “let him debate!” Despite a media blackout, Agran began to rise in the polls, tying well-known candidates Governor Jerry Brown and Senator Tom Harkin. He later went on to pass Brown. Despite his surprise surge, Agran had already been left out of media coverage and the debates, creating a logic of continued exclusion through precedent. Instead of reporting on Agran’s rise, the press simply left him out of their polling reports — either by skipping over his name from Brown to Harkin or only reporting the top three candidates. The Associated Press even physically cropped Agran out of a post-forum photo in which he was standing next to and talking with candidates Tom Harkin, Paul Tsongas, and Bill Clinton, which was published in The New York Times, sans Agran.

Agran was standing to the right of Bill Clinton, cropped out

The same moment showing Agran, captured from live C-SPAN coverage (image courtesy of Joshua Meyrowitz)

To add insult to injury, Agran was arrested on the eve of the New York primary, protesting his exclusion from a debate on urban problems, his specialty. During the live debate, viewers could hear Agran’s loud protests off-camera, calling for inclusion while host Bill Beutel shifted uncomfortably in his seat. “You’ll hear a bit of disturbance in the background but we’ll go on in any case” he reassured viewers[1]. Agran was quickly escorted out by security and arrested. Shut out of the process, Agran’s shadow candidacy disappeared. The court date for his arrest fell on the first day of the Democratic National Convention. He ended up receiving three delegate votes.

Long forgotten, Agran’s exclusion foreshadowed a pattern of reformist and outsider candidates who have tried to run for president in both party primaries only to be ignored, minimized, and ultimately pushed out; candidates like Dennis Kucinich, Ron Paul, Buddy Roemer, and most recently Lawrence Lessig. Both major parties, along with the press, have an interest policing the boundary of acceptable and unacceptable candidates. Understandably, the parties and the press feel a responsibility to present only serious candidates to voters, rather than the dozens of unknown and habitual candidates who file for ballot access each cycle. But this gatekeeping power has also been used to specifically shut out otherwise serious candidates with real grassroots support who are deemed a threat to the party, or are too critical of the status quo. Specifically, outsider candidates who champion campaign finance reform or who regularly criticize party orthodoxy of the either party have faced exclusion.

Different Larry, Same Story

Fast forward to 2016 and the case of Harvard law professor and campaign finance reform activist Lawrence “Larry” Lessig, who fought for the right to run in the Democratic primary and failed. Having never held elected office, Lessig was an untraditional candidate and obvious longshot — so why was he running for president? For most of the past decade, Lessig has led the renewed movement for campaign finance reform. He’s given two TED Talks on the topic, each with well over 1 million views. He has 350,000 followers on Twitter, and a significant following among tech and policy activists. In 2014 he launched a crowd-funded political action committee, Mayday PAC, which raised $11 million to help elect candidates from either party who pledged to pass campaign finance laws. Prior to 2007, Lessig was known for his work and activism around Internet policy, including copyright law, open source software, and Net Neutrality. As a lawyer and professor at Harvard Law School and the former director of the Center for Ethics at Harvard University, Lessig is well suited for his role as reformer. He’s written nine books, the last four of which are focused on the influence of money in politics.

Like Agran, Lessig’s candidacy fell somewhere between fringe and legitimate. Aware of his lack of executive or legislative experience, Lessig decided to run for president with an unorthodox, radical plan: if elected, he pledged to immediately pass one sweeping law, the Citizens Equality Act, which would fundamentally transform how elections are funded and regulated, and then resign leaving his vice president in power. He aspired to be the first “referendum president,” using the momentum of his single-issue presidency to force Congress to pass the bill.

On August 11, 2015, Lessig announced his plan and pledged to run only if his campaign could raise $1 million by Labor Day. It was a Kickstarter-style plan designed to not only test possible support and raise funds to start a campaign, but to hopefully generate enough media attention to propel him into the realm of legitimate candidates, and most importantly, into the first debate. While Lessig claimed to be serious about his plan to be a “referendum president,” he acknowledged that he wanted to elevate the issue of money in politics and the need for serious reform — and who better to do so than a political outsider and expert who for years has been raising awareness of this singular issue?

DNC as Gatekeeper

Successful in raising $1 million from about 8,000 donors, Lessig announced his official campaign to run for president in the Democratic primary. Aside from a smattering of news coverage that deemed his bid “quixotic”, Lessig received little media coverage. More pressing for Lessig, the Democratic National Committee (DNC) refused to officially recognize his campaign, and did not include his name in their press release inviting candidates to the first debate. The decision to ignore Lessig appeared to come from the top of the DNC. “When I tried to talk about this with the chair of the Democratic Party, Debbie Wasserman Schultz, she scheduled a call, but then cancelled it. So far she hasn’t had the time to schedule another” Lessig wrote in a public plea for inclusion.

Many Democratic Party insiders were already concerned over Senator Bernie Sanders, a relative outsider and outspoken critic of the party, rising steadily in the polls. Some feared a perfect storm if Joe Biden entered the race, splitting the moderate vote with Hillary Clinton and leaving a vacuum for Sanders’ insurgent candidacy. Given the near unanimous level of support for Clinton within the DNC, it’s not surprising that party insiders were eager to minimize anything unpredictable or potentially threatening like adding Lessig to the mix — yet another outsider and reformist who would have no qualms criticizing Clinton’s ties to Wall Street.

The first round of televised debates marks clearly for the public which candidates to pay attention while cementing the slate of legitimate candidates running for president. For lower-tier candidates who often lack the financial resources or media attention of front-runners, debates are their best and sometimes only hope, where their message can be presented — for free — to millions of viewers, and tens of millions in the following day’s news cycle.

In a controversial move, DNC chair Debbie Wasserman Schultz initially scheduled only six debates. The Republicans scheduled twice as many. The DNC’s minimizing of the debate schedule appeared designed to favor Clinton, limiting the amount of time she could be exposed to criticism. Fueling suspicion was the fact that Wasserman Schultz served as Clinton’s campaign co-chair in 2008 and is a well-known Clinton supporter. Even the days scheduled for the debates sparked criticism, with only one of six debates scheduled for a weeknight in primetime, which draws the largest audience. One of the debates was scheduled on a Saturday six days before Christmas, and another on the Sunday of the Martin Luther King Jr. holiday weekend; time slots so absurd they appeared specifically chosen to receive poor viewership — a charge Wasserman Schultz denied. The Republicans scheduled most of their debates for prime-time Thursday evenings, the night that has historically generated highest ratings for debates.

The normally behind the scenes negotiating over the number and scheduling of debates in the DNC broke out into a “public rift” pitting Clinton and Wasserman Schultz against critical committee members and the other candidates who, along with Lessig, publicly called for more debates while criticizing the DNC for rigging the schedule in Clinton’s favor. The tension broke publicly when Tulsi Gabbard, vice chairwoman of the DNC, broke with Wasserman Schultz, calling the decision “undemocratic” and resigned. Facing public criticisms of her decision as “autocratic” from fellow Democratic officials, Wasserman Schultz responded bluntly, “we’re going to have six debates, period.”[2]

Facing criticisms of favoritism, Wasserman Shultz and the DNC publicly declared their desire for “maximum inclusion” in the debates, setting the threshold for inclusion at 1% in major national polls in September, a month before the first debate. Polling organizations generally look to party officials, as well as media coverage, for indications regarding which candidates to include in their polls. Like Agran in ’92, Lessig’s campaign was caught in a bind; he wasn’t included in national polls because he didn’t have enough measurable public polling and was unrecognized by the DNC. Lessig argued that this was an unfair catch-22 logic, and pleaded for inclusion in polls based on his demonstrated ability to raise money, his active supporters, and his efforts to launch a traditional campaign. Almost 4,000 people signed a petition to the DNC stating “Let Lawrence Lessig Debate!,” to no avail.

He wasn’t invited. In one of the few polls to include him, Lessig scored his first 1% showing in a YouGov/Economist national poll published the day before the debate, October 12. Meanwhile, the debate host CNN showed viewers an extra bubble-wrapped podium they had ready in case Joe Biden, who had not declared his candidacy, decided to show up. For days CNN excitedly showed viewers the emergency podium along with a count-down clock; a faux drama epically lampooned by late night TV host Stephen Colbert. Meanwhile, a small story appeared in The New York Times with the title “Hoping to be Invited to the Debate, Lawrence Lessig Waits by the Phone.”

Months later, the hacked emails of John Podesta, Clinton’s campaign chair, were leaked by Wikileaks. The leaks emails provided the clear evidence that the DNC deliberately tipped the scales in favor of Clinton, and strategized to delegitimize Sanders’ campaign. Leaked emails right before the Democratic National Convention showed Debbie Wasserman Schultz made disparaging remarks about Sanders and his staff, which embarrassed the party and forced her to resign. Donna Brazile took her place, only to be exposed, one week before the election, for leaking debate questions to Clinton days before a Democratic primary debate for which she was moderator. Wikileaks showed the DNC and Clinton campaign coordinated and strategized together to minimize threats, while regularly ridiculing and mocking progressive activists and even major donors.

No Space for Ron Paul

One of the worst cases of being excluded from the debates happened to outsider and libertarian-leaning Republican Ron Paul in the 2008 presidential primary. In the run up to a major debate in New Hampshire, to be held on January 6, Paul was refused an invitation by host Fox News despite a polling average of 4% nationally and between 7–8% in the state where his libertarian inspired politics had the potential to resonate with the anti-tax, small government state. There were no fair criteria for excluding Paul. He had beaten the early media-anointed frontrunner Rudy Giuliani in the Iowa Caucus, with 10% of the vote, and was competitive for a third place finish in New Hampshire. Not to mention Paul had led every single Republican candidate in fundraising for the final quarter of 2007, raising a stunning $20 million online. In stark contrast, Fred Thompson, whose polling average was 2% in New Hampshire at the time of the debate, was allowed onstage (Thompson would go on to win 1% in NH, compared to Paul’s 8%). Despite protests Paul’s exclusion stuck, with Fox claiming they didn’t have enough space on stage for him.

Fox News was following the lead of Republican National Committee (RNC) chairman Michael Steele, who publicly stated that Ron Paul didn’t belong in the race. Paul’s longtime opposition to the Iraq war and his biting criticisms of US imperialism certainly made him no friends with GOP elite. In contrast, chairman of the New Hampshire Republican Party Furgus Cullen called the decision “outrageous”, stating “the first in the nation New Hampshire primary serves a national purpose by giving all candidates an equal opportunity on a level playing field… Only in New Hampshire do lesser known, lesser funded underdogs have a fighting chance to establish themselves as national figures.” In protest they withdrew their debate co-sponsorship, to no effect. While local activists and officials defended Paul, national Republican leaders were happy to let Fox News to cut him out.

Knowing they had to stage a media spectacle to inject Paul back into the news cycle, his online supporters came up with the idea of a viral “money bomb” fundraiser, planned for November 16, 2007. It was a huge success, bringing in over 4.3 million dollars in twenty-four hours on from over 35,000 donors; his supporters followed with a second money bomb on December 12th, which brought in 6.6 million from 58,407 donors setting a new record in single day campaign fundraising. Paul’s fundraising haul surprised many in the press, who had written off his candidacy months before. The news media covered his fundraising success as a novelty story, framing the need for unconventional tactics and his internet supporters as further proof of his status as a fringe candidate. Fueled by the internet, Paul would end the race in fourth place with 1.2 million votes.

Dennis Kucinich Against the Party

The Democratic Party faced a similar outsider in the 2008 primary, with Representative Dennis Kucinich. A six-term Congressman from Ohio and outspokenly critical of the Democratic Party, Kucinich also happened to be the only Democratic candidate who had actually voted against the 2003 invasion of Iraq. Regularly described as “irrelevant” and “a spoiler” by the press, he was ignored during early debates, often receiving about 5% speaking time. The Democratic Party was eager to get him out of the race, given his regular critique of the other candidates too close to Wall Street and complicit in a war they claimed to be against. A hint of his coming expulsion came early in the campaign, at an NAACP Candidate Forum on July 12, 2007, when Hillary Clinton and John Edwards were caught via a hot mic conspiring to get rid of lower tier candidates (an incident that became a minor news story):

Edwards (speaking to Clinton): At some point…maybe in the fall, we should try to have a more serious and smaller group Clinton: Well we’ve go to cut the number because they are just being trivialized Edwards: and they’re, they’re not serious Clinton: No… You know, I think there was some effort by our campaigns to do that… It got, somehow detoured Clinton: We’ve gotta get back to it because that’s all we’re going to do between now and then… [Obama comes over to shake their hands]… thanks Barack [Kucinich walks up from behind to congratulate them] Clinton: So… uh… thanks Dennis… [turning back to Edwards]… our guys should talk

Clinton and Edwards conspiring, NAACP candidate forum, July 12, 2007. Image by Paul Sancya.

As the primary neared, the major media, taking their lead from the Democratic Party, began to exclude Kucinich from the debates. ABC was the first to bar Kucinich, from a major debate in Iowa a month before the Iowa Caucus. The reason? ABC claimed his campaign didn’t have a rented office space in Iowa, their criteria for inclusion. It turns out that Kucinich did have a campaign office in Iowa, however it was run by Marcos Rubinstein, who instead of paying for an office, coordinated Kucinich’s campaign from his home office in Dubuque, Iowa along with a dozen or so other staff members. Kucinich actually had a larger staff and volunteer network than some of the invited candidates, but it didn’t matter. His barring set in motion continued exclusion through precedent. In the next debate, held in Manchester NH on January 5th, just two days before the Iowa Caucus, Kucinich was barred again, despite the fact that Kucinich was polling between 3–4% in the then-current CNN/WMUR NH Primary Poll, compared to Joe Biden and Chris Dodd who hovered around 1% and were both invited. When he was barred for a third time from the next debate in Nevada, Kucinich sued host MSNBC for the right to be included, and a Nevada district court ruled in his favor, issuing an injunction that MSNBC could not proceed with the debate without Kucinich, citing breach of contract. The case being that MSNBC had originally sent him an official invitation (having met their criteria), only to revoke his invitation once he was barred for the first time, following the precedent of the previous two debates. The matter went to the Nevada Supreme Court, which, with only an hour before the debate was to begin, overruled the lower court, clearing MSNBC to shut Kucinich out.

His fate effectively sealed, Kucinich acknowledged he had been locked out of the process, and ended his campaign, stating “I was locked out of debates in each and every early primary state…Workers know about lockouts. They stop you from being heard”. It’s worth noting that Kucinich was shut out a month before anyone had even voted, before most people begin to pay attention — and the debates he was excluded from generated record ratings for the primary season. The very issues Kucinich championed; criticism of the invasion of Iraq, blunting corporate greed and power, anti-free trade agreements, single-payer healthcare, reducing influence of money in politics, and the need to reform the Democratic Party would be nearly the same platform that Bernie Sanders would run on in 2016, drawing the energetic support of millions of voters.

Shifting Criteria on Buddy Roemer

The 2012 Republican Primary saw another case of shifting criteria meant to block out a reformer — Buddy Roemer. Unlike other outsider candidates, Roemer had many of the typical credentials to run for president; he had been a four term Congressman and later Governor of Louisiana, followed by building a network of successful community banks. Roemer, although a self-described “traditional conservative” and capitalist, ran focused on campaign finance reform. He claimed that his time in Washington and state government, especially facing the powerful oil lobby in Louisiana, proved to him the corrupting influence of big money in politics. He vocally criticized both parties as part of the problem, while expressing support for the Tea Party and Occupy Wall Street. To bolster his message, he committed to taking no more than $100 from anyone supporting his campaign. Despite his political credentials, and perhaps due to his willingness to criticize the party and ally with non-Republicans, Roemer was unwelcome in the race and refused admittance into the first debate.

Knowing the importance of appearing in the debates, Roemer’s campaign focused all their energy in qualifying, yet the criteria for inclusion shifted as Roemer’s campaign struggled to meet them. Once Roemer began polling above 1%, the news media hosts shifted the inclusion criteria from 1 to 2%. As he achieved 2% in the few polls that included his name, the criteria increased to 5%. Roemer was also told that he had to have raised 500,000 in the prior 6 weeks to qualify for a debate, which he tried to argue would be nearly impossible given the central premise of his campaign was small dollar donations only. At the final debate before the New Hampshire primary, despite a media blackout and having never been invited to any of the dozen debates prior, Roemer polled at 3% in one of the few NH polls that included his name, tying Rick Perry and Rick Santorum. Shut out from the beginning, it would have been an embarrassment for the network to include Roemer after months of exclusion. Roemer stayed in the race long after many candidates dropped out, continually protesting his exclusion and earning him the distinction as “the highest polling candidate who’s never made it into a televised debate”. Speaking with Amy Goodman of Democracy Now Roemer lamented, “I’m not pretending to be something I’m not. I’m not well-financed. I mean, I’m proud of my volunteers…We covered New Hampshire. But we are forgotten. In the 21st century, if you’re not in the debates, you’re not a candidate.”

Lessig’s Last Stand

A whopping 17 candidates were invited to the first 2016 Republican prime time debate. There were so many candidates that host Fox News had to create two separate debates, a “main” and “undercard” event. Many of the invited Republican candidates had little to no measurable public support. Jim Gilmore, Bobby Jindal, Rick Santorum, Lindsey Graham, and George Pataki fluctuated between 0% and 1% in national polls. Their lack of campaign contributions reflected their flat polling, yet having served in Congress or been governor and having announced a bid for presidency was enough to be invited.

In contrast, there were only five candidates invited to the first Democratic debate. Of the five, only Hillary Clinton and Bernie Sanders had strong polling, with governor Martin O’Malley a distant third with an average of about 1.5% leading up to the first debate. The other two candidates on stage, former Senators Lincoln Chaffee and Jim Webb typically polled lower than 1%. The day before the debate, Jim Webb’s national polling average was .9%, and Chaffee’s sat at .3%, according to RealClearPolitics (Lessig was not included in RCP’s polling data).

Other than polling, fundraising can provide a useful metric for judging a candidate’s potential for inclusion. To launch his campaign, Chafee loaned himself $364,000, according to his first quarter FEC filing. In October, NPR reported that for Chafee’s third quarter report (the last deadline before the debate), his campaign reported just 10 donors who gave over $200 (donors who give less than $200 are not required to be reported), raising $15,000 total ($4,000 of which came from Chafee himself). Many of the 10 reported donors were wealthy personal friends, according to NPR. Chafee had virtually no measurable popular support, grassroots support, or rationale for inclusion. What he did have was typical credentials, official recognition by the DNC, and enough personal wealth to fund a campaign. Unlike Lessig, Chafee posed no threat to the Democratic Party or Clinton. He was a moderate, soft-spoken candidate who helped provide the visual pretense that the Democratic Party was holding an actual contest. Chafee dropped out of the race soon after.

Knowing the importance of fundraising as an indicator of viability, Lessig hoped his successful $1 million Kickstarter would help him be seen as a national contender. By the first debate, Lessig had raised significantly more money than Jim Webb or Lincoln Chaffee, and about as much as Martin O’Malley. It didn’t matter. Despite being left out of most national polls, Lessig’s campaign pushed forward; he set up campaign offices, made his first substantial ad buy in Iowa and New Hampshire, and was making progress towards qualifying for Federal Matching Funds criteria — none of which Webb or Chafee had done. Frustrated, Lessig stated in an interview with The New York Times, “I’m surprised by the lack of recognition from the Democratic Party. It’s unclear how if you’re not a politician or a billionaire you get to a place where you are able to participate.”

In Exclusion, Attention

In 1992, Larry Agran’s vocal protests and subsequent arrest led to his first major news stories. Like Agran, Lessig’s barring from the first debate caught the attention of some in the press. Thanks to a handful of sympathetic news stories written about his exclusion, Lessig began to be included in a few national polls. In a last ditch effort to qualify for the second debate, Lessig barnstormed the media, speaking with anyone who would have him. He was invited on MSNBC, and was a guest on Real Time with Bill Maher. He publicly called out the DNC, penning a featured article in Politico titled “I’m Trying to Run for President, but the Democrats Won’t Let Me”, shared more than 7,000 times. Likely due to the increased press attention, Lessig achieved three consecutive 1% showings in national polls, meeting the publicly declared criteria of the DNC for invitation to the second debate. Chafee and Webb had both dropped out, and Lessig was poised for his first chance on the national stage.

Perhaps alarmed over the prospect of an energized outsider and reformer suddenly, and somewhat inexplicably, appearing on stage at the second debate (since his prior exclusion would need explaining), Wasserman Schultz and the DNC abruptly changed their rules for qualification — stating that the three consecutive 1% showings had to have been in polling done before October 10, a date before the first debate, which was held on October 13, and before the flurry of media attention over Lessig’s barring. At the precise moment Lessig had qualified for the second debate, the DNC shifted their criteria. This sudden rule change left no possible way for him to qualify for entry into the second debate. “Unless we can time travel, there is no way I will qualify” Lessig remarked.

After a few days of hapless protest, Lessig suspended his campaign — bitterly criticizing the DNC for deliberately shutting him out. “From the start it was clear that getting into the Democratic debates was the essential step in this campaign… I may be known in tiny corners of the internet, but I am not well-known to the American public generally” explained Lessig in his final campaign video. Still a full three months before the first primary or caucus vote would be cast, Lessig was blocked from ever being part of the primary process. Not quite legitimate enough in the eyes of the press and Democratic Party for inclusion, yet with real grassroots energy and support, Lessig remained a specter just outside the process.

In the end, Lessig himself admits his “referendum candidacy” might have ultimately been a losing idea. Even if he had gained entry to the process, his support may not have grown much more in a race dominated by two popular, polarizing candidates, both of whom made money in politics a major issue. Yet, in a comparably small group of Democratic contenders, having one of the foremost experts on stage to specifically focus on campaign finance reform — an issue that has cross-party and cross-ideological support — could have been valuable. While it’s unlikely Lessig or any of the other excluded candidates would have been successful if included, the ideas they champion deserve a chance to be heard. Kucinich’s platform was essentially laughed off the stage by the press and party elite, yet eight years later, thanks to Bernie Sanders’ social media-led revolution, that same platform is looking like the future of the party, especially among young voters.

[1] Footage of the live debate and Agran’s protest can be seen in the 1995 documentary Spin, which briefly tells the story of Agran’s media blackout.

[2] Months later, in late January 2016, the DNC agreed to four more debates in response to threats from Sanders and O’Malley to join unsanctioned debates.