California Libertarian U.S. Senate candidate Judge Jim Gray, the on-leave Superior Court justice, was so incensed at being barred from a candidate debate sponsored by the League of Women's Voters of California that, earlier this month, he decided to sue over it.
He failed in his attempt to get a temporary restraining order to hold up the debate, which was held at the Museum of Tolerance in Los Angeles on August 10. Gray now says that he won't pursue an appeal—"it would be a waste of time and energy."
He's probably correct on that one. Gray reports that his fellow judge, David Yaffe, who adjudicated his application for the restraining order, asked if he'd be the first judge in Western civilization to order the League of Women's Voters to admit a candidate to its sponsored debates. Gray admitted that yes, as far as he knew, this would be a first. "Trial judges don't like to be first," in Gray's experience.
But there was a sign last week that Gray might be giving up too soon. In a small step toward that unknown legal territory, federal judge Henry H. Kennedy Jr. ruled for an alliance that included Ralph Nader, John Hagelin, Howard Phillips, Pat Buchanan, and others in a lawsuit over debate exclusion against the Commission on Presidential Debates, which took over the task of managing debates from the League of Women's Voters in 1987.
To quote from a Green Party press release on Kennedy's decision:
[The Court based its ruling on plaintiffs' allegations that 1) the CPD was founded by the two major parties; 2) since its founding in 1987, CPD has been co-chaired by the two former DNC and RNC chairmen; 3) nine of eleven CPD directors are prominent Republicans and Democrats; 4) no third-party member is a CPD director; and 5) the CPD's current conduct shows it to be a partisan organization.]
The Court agreed that the CPD showed its level of partisanship when it barred third party candidates from the debates as audience members with valid tickets, and ordered the FEC to proceed with an investigation based on the third party complaint without delay.
That may or may not have any effect on this year's debates. Given how slow the wheels of bureaucracy can grind (when they grind at all: the FEC has previously tried to refuse to conduct the investigation, which is what led to the lawsuit in the first place), I lean toward "may not." And the parties to that suit may just run into more of the kind of frustration Gray experienced.
Gray thinks the League changed the rules on him. He had been told that if he furnished a neutral poll showing 10 percent support, then he'd be included. He commissioned a poll of 500 likely California voters from Rasmussen that showed him, straight out of the box, with 8 percent support, and that with a 4.5 percent margin of error. (And this wasn't just an unexpectedly libertarian-leaning poll—LP presidential standardbearer Michael Badnarik racked up, in the question preceding the one about Gray, just 3 percent—within the margin of error.) That should count for over 10 percent polled support, Gray thought, but the League disagreed.
Xandra Kayden, from the League of Women Voters' national board, and the consultant in charge of the California Senate debates, didn't buy the margin of error stuff, and was skeptical of the poll because it was paid for by Gray himself. She also didn't like how it descended in later questions into what she dismisses as "push polling"—questions like, "Suppose you knew that Libertarian candidate Judge Jim Gray supported legislation for California to treat marijuana like alcohol and control and tax it, would that encourage you to vote for Judge Jim Gray for U.S. Senate?" (42 percent said yes to that, by the way.) The kind of legitimate independent polls that Kayden would take seriously, like L.A. Times or Field, don't even mention Gray's name in their questions, allowing room only for generic "others."
This, Gray says, makes it pretty much impossible for any third party candidate ever to meet their standards. It's the eternal circular dilemma of the third party candidate: They get no press attention because they have no demonstrated support or interest from the electorate; the electorate will never know enough about them to support them without the press attention. Push poll or no, the answers to various questions in the Rasmussen poll on Gray show a fair amount of interest in his positions, as distinct from the Democrats and Republicans, once voters learn what they are.
When asked if she has any sympathy with Gray's general argument about healthy democracy demanding the airing of the widest range of views, Kayden admitted she had some. But she added that his legal attack on the League helped evaporate it. Besides, she notes, while it did not allow him into the debates, she says that their smartvoter.org web site means that "the League has given him more visibility than anyone else has, for free." She says the site gets two to three million hits per election, and gives space for all candidates to give information on themselves and their positions.
Gray has fabulous credentials for a third-party candidate, some of which are somewhat ironic for a libertarian—a sitting judge, a former federal prosecutor. But it was his very experience in those venues that led him to a strong anti-drug law position, which he details in his 2001 book, Why Our Drug Laws Have Failed And What We Can Do About It—A Judicial Indictment Of The War On Drugs, and which helped lead him to the LP. But, except for a handful of one-shot articles in daily papers, there is almost no chance for California voters to know that he exists, or whether his stances and credibility appeal to them.
Still, Gray has managed to avoid some of the true drama the fight to get into debates can cause. In 2002, an Arizona Libertarian Senate candidate, Joe Duarte, was arrested when he showed up to a League of Women's Voters-sponsored debate to which he was not invited and quietly held up a sign of protest.
Establishments are establishments because they build up a wall of ideology they don't even see, operating under quiet biases that they usually wouldn't—or couldn't—even admit. It isn't that they fear what would happen if they allowed people to hear the radical ideas of a Jim Gray. It's that they are genuinely certain, so certain they'd never even think about it unless ordered to by a court, that it would be an utter waste of their time and everyone's. Because no one cares—at least, none of, you know, the normal people do.
The most objective criteria for the presidential debates would be to admit any candidate who is on enough ballots to win nationally. This would in no way create an impossibly unwieldy situation. Primary debates prove that well more than five candidates can be involved without chaos reigning. That criterion would definitely make room for Badnarik—and it would, according to a Rasmussen poll, make a majority of Americans happy to see him there, even if hardly any of them think they are going to vote for him now. That poll shows 68 percent support for his appearing in the debates, with only a 3 percent intention to vote for him.
Which shows that voters at large have a greater sense of fair play, or at least of entertaining political theater, than the incurious, hidebound modal politicos who, alas, have a stranglehold on televised political debate.