To quote from the letter, sent to me his morning by R.J. Lyman, who runs Solifico:
For your Commission to survive, for us all to thrive, you must limit your selection criteria to those consistent with its tax-exempt, charitable purposes and as inherently useful for educating the electorate about those standing for election in the Presidential and Vice Presidential contests.
The law is against you. Like all tax-exempt, charitable organizations, your Commission cannot participate or intervene in political campaigns, including by the "publishing or distributing of statements" for or against any candidate. ….The only way in which a tax exempt charity may engage in voter education activities, specifically including presenting debates, is to conduct them in a non-partisan manner….
To conduct itself in a non-partisan manner, a debate sponsor cannot show "bias or preference for or against" particular candidates; there must be "fair and impartial treatment of candidates" without any promotion or advancement of some candidates over others….So long as all candidates are invited, a tax-exempt charity acts properly in holding a debate or similar forum….
Put another way, bi-partisan is not the same as non-partisan. You cannot select some but not others from among all those who are legally eligible to, and capable of, competing for election.
The letter also says that the CPD can't rely on the notion that courts have upheld their 15 percent poll criteria, since "the Internal Revenue Service and the courts reviewing tax code cases apply review standards entirely distinct from those relevant to the Federal Election Commission and courts reviewing election law disputes."
Lyman's letter goes on to say:
The facts are against you. Your Commission's fundamentally educational purpose is compromised by the inherent bias or preference of your selection criteria…The 15% opinion polling criterion does not address whether an individual is standing as a contestant in the election; that would be ok. Instead, it attempts to assess which individuals are, at a given date, months before the election, projected likely to win the election; that is not ok.
There is no way you can maintain both (a) the 15% opinion polling criterion by which you make a "selection" of whom to invite to the debate stage, and (b) your tax-exempt, charitable status, under which you are allowed only to determine who is "eligible" to participate on the debate stage. It is simply a fact – you have to choose one or the other.
Then, the hammer is threatened:
Absent your timely addressing the problem of the opinion polling criterion, we are inclined to make a referral to the Internal Revenue Service about whether your Commission has violated the limitations on political activity applicable to tax-exempt charitable organizations and perhaps to seek immediate equitable relief in courts of competent jurisdiction.
One element of the letter confused me, stating that it was not Solifico's position that past lawsuits trying to fight their way into the debates, including ones by Johnson, were legitimate:
Solifico does not adopt the posture of those would-be debaters who have in the past sued your Commission after they failed to meet your criteria for an invitation. No matter our personal preference, that was the right result for the 2012 candidates, as it was for Ralph Nader before them.
Asked to clarify in a phone interview this morning, Lyman said that "it's a bit of a lawyerly point" but he analogized the lawsuit solution as "like medieval jousters complaining they didn't get invited to the tournament" and he is not now saying "'invite me! invite me!'" but rather that "if you don't change your rules, you can't be a tax exempt non profit.
"It's not about the candidate or the commission," he further explained, "it's about the voters." Lyman analogized the CPD to rating agencies that served the interests of their customers, the banks, rather than the investors.
In that analogy, the CPD is behaving like the rating agencies, and the two major parties are the banks. Thus, Lyman's tack is not to insist that the candidates are being treated unfairly by CPD, but that CPD's implicit obligation to the voters is being violated in a manner not commensurate with their tax-exempt mission.
I also asked Lyman to speak to rumors I'd heard that his PAC had received or was soon to receive a seven figure donation. While Lyman would not speak to financial specifics, he said that "I wouldn't have sent this letter out if I wasn't well prepared for the battle with the two-headed dragon. I don't want to get in the habit of saying that x dollars is a number that meets or falls short of expectations, but I know how much engaging lawyers in big law firms cost, I have 25 years of experience in one, and I know how entrenched and powerful and rich our adversaries are, and we are ready for the battle."
A call to the CPD seeking comment on the letter has not been returned as of time of posting; if they reply will update.
