Judge Grills FEC About Presidential Debates

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By Kenneth P. Doyle

The Federal Election Commission apparently ignored evidence that the 2016 presidential debates violated campaign finance law, because the debates were unfairly rigged to include only the major party nominees, a federal judge suggested.

Judge Tanya Chutkan of the U.S. District Court for the District of Columbia repeatedly challenged FEC attorney Robert Bonham during an hour-long court hearing on Jan. 5. Chutkan asked Bonham why the FEC didn’t fully explain its reasons for dismissing an enforcement case against the Presidential debate sponsor, the private nonprofit Commission on Presidential Debates (CPD).

The CPD raises millions of dollars in corporate funding to produce the debates—funding which would be illegal if contributed to specific candidates.

A nonprofit called Level the Playing Field has challenged the FEC’s debate rules and filed an administrative enforcement complaint against the CPD, challenging the FEC’s dismissal of that complaint it court. The group’s attorney, Alexandra Shapiro, told Chutkan during the court hearing that Level the Playing Field amassed compelling evidence that the current debate rules deprive independent and third-party candidates from having any chance to compete seriously for the presidency, but the FEC refused to consider the evidence.

‘Catch-22.’

Shapiro of the law firm Shapiro Arato in New York pointed to academic studies indicating a candidate seeking to achieve 15 percent voter support in national polls—the level needed for the 2016 debates— must first obtain national name recognition in the range of 60 percent to 80 percent. This requires costly campaign advertising, she said, but independent and minor party candidates are subject to a “Catch-22" because they can’t raise large amounts of campaign money unless they have a chance to be included in the debates and thus have a shot at winning the presidential race.

FEC attorney Bonham responded to the judge’s questions during the court hearing by saying that previous FEC precedents and court decisions have established that the CPD has been operating legally as it has sponsored debates over the last two decades. He said that FEC decisions in such matters are “entitled to deference” by the courts.

But Chutakn appeared dissatisfied with the FEC lawyer’s answers, asking why “the FEC chose to ignore the very substantial record” that the debate sponsors want to help only the major party nominees.

Sponsored Every Debate Since 1988

The CPD, which has sponsored every general-election presidential debate since 1988, is co-chaired by former Republican National Committee Chairman Frank Fahrenkopf and former League of Women Voters President Dorothy Riding and has a board that includes several former major party politicians and staffers.

The commission’s rules for the 2016 presidential debates limited participation to candidates with at least 15 percent support in public opinion polls. Only Republican nominee Donald Trump and Democratic nominee Hillary Clinton qualified and participated in the three national debates held before the Nov. 8 presidential election.

The FEC determined in 2015 that the CPD’s debate criteria did not violate campaign finance law. The unanimous ruling was backed by all six FEC commissioners, three recommended by Democrats and three Republicans. The FEC dismissed the enforcement case filed by Level the Playing Field, which charged the current debate system was rigged to allow only the Democratic and Republican nominees to participate.

The commissioners followed the recommendation of staff attorneys in the FEC general counsel’s office. The counsel’s report said the latest complaint made “the same allegations regarding the same candidate selection criteria” as previous enforcement cases dismissed by the FEC.

Consider New Rules: Ravel, Weintraub

Despite voting to dismiss the case, two commissioners said the FEC should consider changing its rules to provide for greater debate participation. FEC Democrats Ann Ravel and Ellen Weintraub noted in a joint statement that the current FEC rules forbid debate sponsors from using nomination by a major party as the sole criterion to determine who may participate. However, Ravel and Weintraub said, “the criteria established by CPD seem to have accomplished the same result by different means.”

Ravel and Weintraub supported the FEC rulemaking petition filed by Level the Playing Field, which called for changes in the current debate rules. The petition was rejected in a 4-2 vote by the commission shortly before dismissal of the enforcement case against the presidential debates commission was announced in August 2015.

“At a time when an increasing number of Americans identify as independents, we should not be satisfied with regulations that may be preventing their points of view from being represented in public debate,” Ravel and Weintraub said in a statement issued at the time. “At a minimum, we ought to engage with the public on this issue. It has been over twenty years since the Commission has taken a serious look at its rules on candidate debates. Such a re-examination is long overdue.”Shortly after the FEC voted on the rulemaking petition and CPD enforcement case, Level the Playing Field filed its lawsuit challenging the FEC actions. The suit also was joined by the Green Party and the Libertarian Party, which complained their candidates—Green Party nominee Jill Stein and Libertarian Gary Johnson—were unfairly excluded from the 2016 debates. When the votes were counted after Nov. 8, Johnson got just more than 3 percent of the national total, while Stein got 1 percent. Clinton came out on top of the national vote total by 48 percent to 46 percent for Trump, but Trump won the Electoral College vote to become president-elect.

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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