Debates Challenger Urges Ruling So Candidates Can Choose to Run

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By Kenneth P. Doyle

A nonprofit organization pressing the Federal Election Commission to open up presidential debates to independent and third-party candidates is again asking a federal court to step in.

The move comes after the FEC refused to change its debate rules or take enforcement action against the debates’ sponsor, the private nonprofit Commission on Presidential Debates (CPD). The debates challenger, an organization called Level the Playing Field (LPF), is pushing for the court to set an accelerated schedule to resolve its case by the end of the year.

A quick decision is needed to allow independent candidates to decide whether to compete in the 2020 elections, LPF said in a new court filing.

The CPD raises millions of dollars in corporate and other funding to produce the quadrennial presidential debates—funding that could be illegal under campaign finance laws if it improperly favored certain candidates over others. The FEC has allowed this funding under its debate rules to help educate voters. The current rules require only that the debate sponsor use “objective criteria,” such as standing in public opinion polls, to determine who should be invited to a debate; the debates can’t explicitly be limited to candidates from the major parties.

The Need to Know

“Many independent candidates need to know whether the debate rules will change at least approximately 18 months before the election to make an informed decision whether to run for president, because that is when most competitive campaigns are launched,” LPF said in an amended complaint filed Aug. 11 in the U.S. District Court for the District of Columbia.

The LPF amended complaint was filed in a case that has been litigated in the federal district court for nearly two years before U.S. District Judge Tanya Chutkan. The court last year issued a preliminary ruling that questioned the FEC’s handling of debates and remanded the issue to the agency for reconsideration.

The FEC voted 4-1 this year to continue current rules, which allow the presidential debates during the general election campaign to include only candidates polling above 15 percent national voter support—a level critics say excludes everyone but the Democratic and Republican presidential nominees. The FEC decision not to reopen debate rules was accompanied by a commission vote not to take enforcement action against the presidential debates’ sponsor, the CPD, and its co-chairmen, Frank Fahrenkopf and Michael McCurry, respectively former top Republican and Democratic officials.

Objective or Subjective

The challenge to the FEC’s latest decision should be considered on a briefing schedule that would end in mid-November, with a court decision expected soon afterward, LPF said in a motion filed this month. The motion said FEC lawyers hadn’t agreed to all the details of LPF’s motion but said the agency would agree to a scheduling order with summary judgment briefing to conclude in mid-November 2017.

The FEC’s decision to defend current rules after the court’s earlier ruling did little to defend the 15 percent polling support threshold for participation in the fall presidential debates, LPF’s latest filing said. Achieving this level of support without a major party nomination would require a candidate to spend millions of dollars on advertising to achieve public name recognition, LPF has argued.

The FEC “offers no justification of its own for a polling criterion so high that, since the CPD’s inception, no independent presidential candidate has satisfied it,” LPF’s court filing said. “This begs the question: if under these facts the FEC does not consider the fifteen percent polling criterion to be subjective, what would be?”

Gary Johnson Example

The filing disputed the FEC’s arguments that Libertarian Party nominee Gary Johnson received ample media coverage in the 2016 campaign but still polled well below the 15 percent support level. A 22-page notice approved by the FEC commissioners in March, which justified the current rules, concluded that Johnson and another minor party candidate competing in last year’s race—Green Party nominee Jill Stein—achieved substantial name recognition among voters but still didn’t receive much support in opinion polls or the election.

One commissioner, Democrat Ellen Weintraub, opposed the FEC decision, saying she supported a move to consider new rules. The other four commissioners voted to approve the notice backing current rules. FEC Chairman Steven Walther, an independent who has a Democratic seat on the FEC, voted with the three FEC Republican commissioners: Vice Chairwoman Caroline Hunter and Commissioners Lee Goodman and Matthew Petersen.

FEC restrictions on which candidates could be invited to a debate would violate the First Amendment rights of the debate sponsor, Goodman said in a “concurring statement.” The statement also cited the “press exemption” from campaign finance law, which Goodman said prevented the FEC from interfering with the decisions of a media organization that sponsors a candidate debate.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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