Presidential Debate

Johnson/Weld SuperPAC Threatens the Commission on Presidential Debates Over their Tax Exempt Status

Letter to CPD argues their selection criteria violate their non-profit status; PAC chief R.J. Lyman says they have the resources to fight this battle.


The Socially Liberal and Fiscally Conservative PAC (Solifico) this morning sent a letter to Janet Brown, executive director of the Commission on Presidential Debates (CPD), threatening to send the IRS after them over their policy of not allowing all legitimate candidates for president in their debates.


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.

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      1. My last pay check was 9700 dollar working 12 hours a week online. My sisters friend has been averaging 15k for months now and she works about 20 hours a week. I can’t believe how easy it was once I tried it out.
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  1. Pardon me if I don’t hold my breath over this.

    This will be just like those times when the gop/dem pols fuck up and are still put on the ballot even while other parties are rebuffed for the same infractions. The election commission will simply shrug and say “you know what we mean. Doesn’t matter what is written down.”

    Who at the IRS is going to stick their necks out to fuck with the duopoly?

    1. Who at the IRS is going to stick their necks out to fuck with the duopoly?

      Lizard Man Koskinen is right on it

  2. We would appreciate it if you would cease and desist, and allow us to pursue our campaign unfettered. If not, I can assure you that we can make things very unpleasant for you and your staff… If you have one.

  3. Yeah, I don’t know about this.

    For one thing, I’m pretty sure this strategy has been tried before: the Commission has been around for nearly three decades as a nonprofit involved in an inherently political process. I doubt this PAC is the first to think of the IRS angle.

    For another, it’s a pretty weak argument. Merely because somebody has standing to compete for the Presidency doesn’t by itself mean anything. Technically, any natural born US citizen over 35 years old can run for President. It is wholly reasonable to provide some standards to weed out people without being “biased”. The Commission came up with 15% as the standard. While that is done with the obvious goal of the Commission’s board to shut out somewhat viable third-party or independent candidates, I do not think it is the IRS’s place to second guess that decision without more apparent bias on the part of the Commission.

    1. It’s a very different issue for an individual to meet the constitutional requirements to run and a ticket to have the support of the 10s of thousands of petition signers and overcome the other hurdles to be on all the states’ ballots .

      That is the only criterion which is justified .

      The CPD is the quintessence of institutionalized corruption in our system . See .

  4. I don’t know if Johnson is behind this or if this is some “non-coordinated” thing done over Johnson’s opposition.

    Whoever’s idea it was, it involves enforcing what I insist on calling the Lyndon Johnson Amendment.

    It was Senator Lyndon Johnson (D-Tex) who in 1954 got this provision added to the tax code – that nonprofits can’t get involved in elections.*

    If tax exemptions are to be justified at all, it’s because they’re in the public interest. And the fact that a nonprofit exercises its First Amendment rights shouldn’t have any bearing on whether the public interest justifies a tax break.

    Lyndon Johnson operated on the Gangster Government premise that tax breaks are a favor doled out by government, and that tax-exempt groups should return the favor by curtailing inconvenient First Amendment activities. “I do you a favor, you show gratitude.”

    *(There’s another, earlier provision limiting lobbying activities)

    1. The CPD gets a pass because the duopoly backs it.

      Even if the Johnson Amendment was actually enforced against the CPD, that would be a Bad Thing, just as it’s a Bad Thing to enforce it against anyone.

      But instead of invoking this censorship law, people should be using the CPD as an example of the law’s bias and shame Congress and the courts into affirming the First Amendment rights of the people – including the right to say who they support for President without being financially penalized.

      1. Oh, and Lyndon Johnson pushed his amendment after a nonprofit in Texas opposed him, hence my reference to gangster government.

      2. The flaw in your “shame Congress” plan is that Congress has no shame.

  5. With this 15% criteria and the polls –

    Shouldn’t they be asking people: Would you like to see so and so on the debate?
    But instead, the question being asked is: Who would you vote for?

    This is like asking if somebody likes apple to determine if s/he wants an orange.

  6. 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.

    This writing, it seems somehow familiar…

  7. 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….

    Yeah, no.

    If the criteria are viewpoint neutral and not so restrictive as to simply mean “only the big two ever”, it’ll stand.

    Because there is nothing “unfair and partial” about inviting only serious candidates and not “every candidate”.

    Because, remember, “every candidate” does not mean “Johnson and that Green hack Stein”; it means every candidate in every state, from the American Nazi Party to the Communist Party to the Prohibition Party to the ten other Socialist Parties.

    Are these people actually serious? Did they bother to talk to any lawyers at all before making these untenable claims about requiring no selectivity at all?


    1. not necessarily. A candidate for president must realistically have ballot access sufficient to win in the electoral college. I cant imagine that being a huge number or an unreasonable bar to cross.

      1. “Every Candidate” in a national sense doesn’t have to mean literally every candidate in every state; and that would be clarified by treating candidates without electoral college support to win outright the same as write-in candidates. Just because John Wayne Smith (R.I.P.) is on the ballot as the Objectivist Candidate here in Florida does not mean he can win enough Electoral college votes to actually be elected. To win the election he would need to be written-in in sufficient states to meet the Electoral college threshold, and since anyone meeting the age, citizenship, and birth criteria can be written-in, then no one requiring the written-in standard would be considered having credible potential electoral college support. National polls could determine credible potential electoral college support for a write-in Candidate. Party level ballot access because of its rigor already determines a sufficient bar of support to demonstrate credible potential support.

        This approach would also require that the debates not occur until ALL of the states have closed their petition drive/ballot access process there-by determining exactly who meets the potential electors standard.

        Alternatively a threshold of say 5% nationally in a basket of polls (sufficient to put it at greater than 1% at the bottom of the margin of error) would demonstrate potential write-in candidate support.

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  9. If they point out that the CPD has Republicans involved in decision-making, the Obama IRS will start an investigation in no time!

  10. I’ve wondered for a while whether the known bias in CNN’s reporting might count as a huge unreported campaign contribution to Clinton, or maybe even taxable income to her.

  11. #shameonU @HofstraU @LongwoodU @wUstl @Unlv quit destroying democracy! @OccupyWallStNYC these universities, shut down #shamdebates @debates

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