In modern American society, people are bombarded with options and choices. Yet, when it comes to presidential candidates, there are only two—Democrat or Republican. A recent Pew Research Study indicated that thirty seven percent of Americans hold unfavorable views of both major political parties.1 Despite the dissatisfaction with the status quo, many Americans end up voting for who they perceive to be the better option or the lesser of the two evils.

There is nothing inherently wrong with a two-party system, and there are even some benefits. For example, a two-party system is efficient and can elevate the most popular opinions when it upholds democratic principles. Ideally, the most qualified and popular candidates participate in the presidential elections and eventually the debates.

However, the current system makes it near impossible for candidates who fall even slightly outside of binary party lines to succeed in a presidential race. The current system silences third-party voices and deprives voters of options that may better align with their values. Most recently, candidates like Robert F Kennedy Jr., Tulsi Gabbard, and Bernie Sanders faced barriers throughout their presidential campaigns that hindered their success.2

Hardships to third parties begin at the grassroots stage of the campaign due to campaign finance laws. Specifically, the lack of campaign contribution limits makes it incredibly challenging for the average American to run a successful presidential campaign. The Supreme Court in Citizens United v FEC held that corporations and other special interest groups have a First Amendment right to contribute to political campaigns without limitation.3 This decision opened the door for the billion-dollar campaigns that exist today. These expensive campaigns, funded by Super PACs, put less established candidates at a great disadvantage. Even millions of small donors cannot compete with the small group of wealthy donors that donate to Super PACs.4 It raises the question: Are the candidates with the greatest success the most popular or the most heavily funded?

Further, the polling criteria set forth by the Commission on Presidential Debates (“CPD”) to determine who is eligible to participate in the presidential debates discriminates against third-party candidates. The FEC administers and enforces laws that govern elections for federal office, including presidential debates.5 The CPD claims to be a non-partisan and independent non-profit organization whose mission is to ensure that general elections are held every four years for the leading Presidential and the Vice-Presidential candidates.6 The CPD’s criteria for presidential debates requires that the candidate must “have a level of support of at least fifteen percent of the national electorate, as determined by five national public opinion polling organizations.”7

The D.C. Circuit court currently holds that the CPD’s debate criteria complies with the FEC’s §110.13, which requires objective eligibility criteria. In Level the Playing Field v. FEC, the plaintiffs asserted that the CPD eligibility criteria was subjective and biased.8 First, the plaintiffs argued that the CPD is an inherently biased organization because its founders are ardent supporters of the Democrat and Republican parties.9 The court rejected this.10 Second, the plaintiffs argued that support from fifteen percent of the national electorate requires money and name recognition that is not realistically achievable for third-party candidates.11 The court stated, “a threshold does not become ‘subjective’ merely because it is difficult to reach.”12 Third, the plaintiffs suggested the FEC could change their standards completely and deny debate sponsors from using any polling requirement, which the court further rejects.13

The Framers of the U.S. Constitution envisioned a republic that leaves room for minority voices.14 America has strayed from this vision. However, there are multiple routes to return. First, the court could overrule Level the Playing Field v. FEC. The court could conclude that CPD is an inherently bipartisan group, and thus unqualified to host the debates, or that the CPD standards violate current FEC rules. Second, the FEC could revise their current rules to make eligibility more accessible to third-party candidates. However, unless the consequences of Citizens United v FEC are addressed, this first solution is unlikely to be effective. Of course, the Supreme Court could overrule this precedent and reinstate limits to campaign contribution. Alternatively, Congress could pass laws that require transparency in donating to Super PACs. At a minimum, Americans deserve to know who is funding presidential campaigns. Currently, presidency is only achievable for Democrats, Republicans, or self-made billionaires. But the forgoing solutions will restore our democracy and the vision that the Framers had for the United States of America.

References:

1 Gabriel Borelli, Support for more political parties in the U.S. is higher among adults under 50, Pew Research Center, (Oct. 9, 2023), https://www.pewresearch.org/short-reads/2023/10/19/support-for-more-political-parties-in-the-u-s-is-higher-among-adults-under-age-50/.

2 Geoffrey Skelly, Why RFK didn’t qualify for the first presidential debate, ABC News, (Jun. 20, 2024), https://abcnews.go.com/538/rfk-jr-qualify-presidential-debate/story?id=111276848.

3 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 310 (2010).

4 Daniel I Weiner & Tim Lau, Citizens United Explained, Brennan Ctr. For Just., (Dec. 12, 2019) https://www.brennancenter.org/our-work/research-reports/citizens-united-explained.

5 How to File a Complaint with the FEC, Fed. Election Comm’n, https://www.fec.gov/legal-resources/enforcement/complaints-process/how-to-file-complaint-with-fec/#:~:text=The%20Federal%20Election%20Commission%20administers,not%20within%20the%20FEC’s%20jurisdiction (last visited Feb. 25, 2025).

6 The Commission on Presidential Debates: An Overview, Debates.org, https://www.debates.org/about-cpd/overview/ (last visited Feb. 25, 2025).

7 11 CFR §110.13(c) (2025).

8 Level the Playing Field v. Fed. Election Comm’n, 961 F.3d 462 (D.C. Cir. 2020).

9 Id. at 462.

10 Id. at 465.

11 Id.

12 Id. at 467.

13 Id.

14 See The Federalist No. 10 (Alexander Hamilton) (J. Cooke ed., 1961).