FEC Nixes Enforcement Against Presidential Debates Sponsor

By Kenneth P. Doyle

The Federal Election Commission won’t take enforcement action against the nonprofit Commission on Presidential Debates (CPD) despite a recent court ruling that questioned the FEC’s handling of debates, the FEC has told lawyers involved in the court challenge.

The FEC decision was expected following a commission vote in an open meeting last month not to begin a new rulemaking regarding presidential debates. The FEC indicated it would defend, rather than change, its current rules, which give the debates’ sponsor broad leeway to decide who can participate in the debates traditionally held every four years in the fall before a presidential election.

The FEC voted in a later, closed session not to take enforcement action against the presidential debates’ sponsor, the CPD, and its co-chairmen, Frank Fahrenkopf and Michael McCurry. The vote was revealed in a letter sent by the agency to attorney Alexandra Shapiro, who represents the plaintiffs in the court challenge regarding the debates, Level the Playing Field v. FEC. The letter was reported in a newsletter published by the Independent Voter Project, a nonprofit group that supports the court challenge.

Rules Said to Exclude Candidates

The FEC has said its rules, which allow the debate sponsor to use a 15 percent threshold in national opinion polls to decide which candidates to invite, are fair and aren’t designed to exclude independent and minor-party candidates.

The challengers of the FEC rule, however, have called for changes in FEC rules to ensure that at least one independent or third-party candidate on the ballot in enough states to be elected president is included in the general election presidential debates. The challengers include the nonprofit group Level the Playing Field, as well as the Green Party and the Libertarian Party.

The FEC faced an April 3 court-ordered deadline to respond to a federal court ruling that said the agency hadn’t sufficiently taken into account evidence that the presidential debates might improperly benefit the Democratic and Republican presidential nominees and exclude other candidates. Following the latest FEC move, the challengers of the debate rules are expected to once again ask the court to evaluate whether the rules improperly are intended to favor the major-party candidates.

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 in order 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.

New Rulemaking Rejected on 4-1 Vote

How individual FEC commissioners voted on the presidential debates enforcement matter, designated Matter Under Review (MUR) 6869R, hasn’t been revealed yet. In the earlier rulemaking vote during an open commission meeting, Democratic FEC Commissioner Ellen Weintraub voted against the notice defending current debate rules, saying she supported a move to consider new rules.

The other four commissioners voted to approve the notice. 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.

Goodman also issued a brief “concurring statement” that said he believed FEC restrictions on which candidates could be invited to a debate would violate the First Amendment rights of the debate sponsor. Goodman’s statement also cited the “press exemption” from campaign finance law, which he 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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