Liberarian Party

Oral Arguments Heard in Libertarian Party Lawsuit Regarding Commission on Presidential Debates

Federal judge: The FEC isn't considering the L.P.'s arguments that the Commission is unfairly partisan and using illegitimate criteria to exclude third parties.


One of the Libertarian Party's attempts to overturn the Commission on Presidential Debates' third-party damaging practices via lawsuit had its first hearings last week in U.S. District Court in D.C. on motions from both sides for summary judgment. (For a summation of what's at issue in the case, officially known as Level the Playing Field v. FEC, see this report from October when these arguments were first scheduled, alas too late to do Gary Johnson's campaign any good.)

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In that hearing, Alexandra Shapiro, the lawyer representing the Libertarian Party's National Committee and the other plaintiffs in the case, argued that the American people faced a uniquely terrible set of major party choices in 2016, which she blamed on the fact that the:

two major parties have rigged the system to maintain their own power and deprive American citizens of their choices. They've done that in a number of ways, including partisan gerrymandering, voter suppression laws, rules to prevent independence from appearing on a ballot if they won in a major party primary first.

And, of course, the reason we're here today, the rule of the Commission on Presidential Debates uses to exclude independent and third party candidates from competing against the Democrat and Republican nominees. And this is critical because everyone knows that in the United States you can't become president without participating in these debates. Now, most Americans want additional choices, and if the CPD continues to operate as it has in the past, run by partisans who are erecting impossible barriers….

To the specific legal issue, Shapiro argues that the CPD's reality as bipartisan and not truly nonpartisan has implications for the legality of how they are funded under campaign finance law, and that the CPD does not use "preestablished objective criteria to determine who may participate" in a real sense since they are in her mind "selecting a level of support [for their] polling criteria that is so high that only the Democratic and Republican nominees could reasonably achieve it." (15 percent in five different national polls.)

Shapiro went on in the hearings to detail how the people running the CPD are directly, and often financially, supportive of the two major parties. (CPD FEC's lawyers counterargued that the actions of the individuals who run the CPD are not analogous to the organization itself being partisan.) The huge amounts of corporate contributions to the CPD are in violation of campaign finance law since the CPD is not truly nonpartisan, Shapiro insists.

As for the 15 percent criteria, Shapiro said that in a 2000 lawsuit by Patrick Buchanan against the CPD FEC "the District Court…held that the debate sponsors can't select a level of support that's so high that only the Democratic and Republican nominees could reasonably achieve it."

Shapiro goes on to say that the FEC inadequately considered the evidence in two reports by polling experts Clifford Young and Douglas Schoen which very rigorously "determined that on average an independent candidate must achieve a minimum of 60 percent name recognition and more likely closer to 80 to have a polling of 15 percent" and that without going through the highly reported major party primary process, no independent or third party candidate is likely to be able to do that.

If they were to try, they'd likely need around $265 million to spend to achieve such recognition. Those reports from the experts also indicate that three-way polling can underrepresent support for independents.

Shapiro says CPD has created a "Catch-22" in which no one can raise that money unless donors believe they will make the debates.

Judge Tanya S. Chutkan's questions to the FEC lawyer made it clear she considered earlier administrative decisions by the FEC in the case to have inadequately considered all the evidence presented by L.P.'s side.

"I have to give the agency's decision deference," Judge Chutkan said. "But if the agency doesn't articulate any analysis in dismissing the complaints, why should I grant the agency deference?…I strain in my reading of the analysis to find your articulation of what fact criteria you used, what analysis you used in coming to your conclusions… I have to be satisfied that in reaching a decision the FEC considered all the evidence here. And I'm finding it very difficult based on what I've been provided in terms of the analysis."

While Judge Chutkan has not yet made her decision, the hearing transcripts strongly indicate she is very unlikely to allow the FEC to win the case on summary judgment.

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  1. IT’S NOT TOO LATE. Judge Chutkan, you are democracy’s last check. You can be an American hero. Invalidate the election. Trump hasn’t been sworn in as president yet. There is time.

    1. “I have to be satisfied that in reaching a decision the FEC considered all the evidence here. And I’m finding it very difficult based on what I’ve been provided in terms of the analysis.”

      “It’s too hard to make a decision!” (tick – tick- tick – ….)

    2. I’m in if we get Gary Johnson as president, who stoned out of his mind for 4 years would still be better than the two other options.

    3. I hope that this judge can actually decide the case justly – at the likely personal cost of never getting appointed beyond her current judgeship. She’s got the right background (anti-trust) and the CPD is obviously stomping all over that.

      Of course even if she does decide the case as it should be – the two parties will have four more years to screw with the next election and protect their nest.

  2. As for the 15 percent criteria, Shapiro said that in a 2000 lawsuit by Patrick Buchanan against the CPD “the District Court…held that the debate sponsors can’t select a level of support that’s so high that only the Democratic and Republican nominees could reasonably achieve it.”

    So how does the CPD determine what the proper threshold is? Whatever the inputs into that calculation are, when you find that third-party candidates consistently fail to reach that threshold you have to conclude that you’re using some flawed inputs and the threshold is too high. If you then fail to correct the calculation, it’s hard not to suspect you’re either deliberately using a flawed calculation or you’re an idiot who has no business setting standards. I’m sure the CPD is going to argue that the standard is such that third-party candidates can “reasonably” expect to achieve it, but the empirical evidence says your model is wrong. Empirical evidence is facts, models are opinions.

    1. The obvious criteria is accept any candidate who is on the ballot in states which represent a majority of the electoral votes; they could conceivably win. Everyone else is just a spoiler, who, while they may have something to say, cannot win unless no one wins a majority of the electoral college and the vote goes to the House of Representatives.

      It’s at least a reasonable and rational cutoff. 15% is just nonsense clearly geared towards eliminating all third party candidates.

      1. I totally agree.
        Those candidates who have a theoretical chance of winning should be on stage and in the debates.
        It is an objective standard that is not subject to post hoc corruption.

      2. I totally agree.
        Those candidates who have a theoretical chance of winning should be on stage and in the debates.
        It is an objective standard that is not subject to post hoc corruption.

    2. The 15% threshold is not unreasonable. Stop blaming the CPD for the failure of third parties to field candidates that are somewhat appealing. The debates can’t be infinitely long and are too long and boring as it is. Why should American’s have to spend more time listening to candidates that they have no interest in and less time listening to the ones they are interested in?

      Nobody is stopping third party candidates from having their own debates. They could set up their own debates and invite whoever they want. Their bitch is that they want to be included in the “popular” debate that everyone will watch when they simply aren’t popular and don’t belong there. Frankly, the attitude of entitlement is disgusting.

  3. If the judge refuses summary judgement she will have plenty of time to be availed of all the analysis at the trial.

    Getting on the debate stage is the single most important thing for changing presidential politics. Just ask Ross Perot.

    1. Perot was polling 8% nationally before debates began. Didn’t he end up with 19% in the election? That is a number too high to be ignored by the two major parties. It wasn’t ignored and that is how we ended up with the exclusionary CPD to begin with.

      1. Fact checked myself and I was wrong. Perot was polling single digits in 1996 and was not allowed in the debates. The fifteen percent threshold was in effect for both of his runs and he was polling high enough in 1992 to be included.

        1. Perot was definitely in the debates in 1992.I believe both of the major parties wanted him to debate and asked that the rules be suspended because they felt he hurt the other side more.

          1996 is when they told him to fuck off.

  4. “The huge amounts of corporate contributions to the CPD are in violation of campaign finance law since the CPD is not truly nonpartisan, Shapiro insists.”

    Wow, that sort of argument could never come back to bite libertarians in the butt. No, sir.

    Seriously, corporate donations to the Reason Foundation could be challenged on this basis – that the Foundation is a de facto supporter of Libertarian Party candidates.

    If voters rely on the CPD to screen candidates, that’s on the voters.

    I’d say than any group – even the CPD – has the right to be partisan without fearing government reprisal – and by the same token, without getting any government advantage.

  5. How about just declaring the CPD unconstitutional, and saving the taxpayers a bunch of money?
    Lack of full representation of the ideas with a mathematical shot at the electoral college votes violates one man one vote.

    1. I’m so sick of this bullshit that at this point I’d vote for Stalin or Hitler rather than a fucking elephant or donkey.

    2. declaring the CPD unconstitutional

      I’m missing the constitutional requirement to provide a debate forum as well as the constitutional restrictions on partisan political theatre.

      There *might* be a case under tax law, but that’s only because the law is a speech regulation masquerading as a tax code provision. The CPD is not a governmental body and doesn’t have to give anybody airtime, regardless of how “unfair” it might be.

      1. It is a governmental body, if it is so aligned and associate with current governmental administrations, that it is private in name only.

        1. It affiliates with the national party commissions. Those are also private organizations. Just because an organization is politicking doesn’t make it part of the government.

      2. They are certainly not ‘unconstitutional.’

        They may, or may not, be violating FEC regulations, which do regulate ‘airtime.’

        They may, or may not, be misrepresenting the sources of their income to the IRS, thus violating their 501(c)(3) status. It seems highly unlikely they would do this, in my estimation, since the consequences of being caught could be severe.

        They are given their influence by 1) their claim to sponsor ‘the’ presidential debates, and 2) the media’s belief it is true, or at least willingness to pretend they believe the claim is true.

    3. Federation of states, not popular democracy.

  6. Let’s assume that polls ask people who they want to vote for instead of the alternative of giving them a list to choose from. Let’s also assume that each candidate in a set of candidates will get the same number of votes. This set of candidates can then be no larger than 6 candidates before it is possible that no one will make this threshold. According to this site, 5 candidates were on more than 20 states’ ballots, and 10 were on more than 5 states’ ballots. So, depending on the set used, the 15% threshold is unreasonable in this paradigm.

    This threshold is even more unreasonable if we allow for nontrivial matters to influence how people vote, especially because a candidate may temporarily poll below the threshold when they are normally above it.

    1. How about debating ideas instead of influence and cash reserves?

    2. A very good analysis.
      In short, the criteria set up by the CPD makes it mathematically impossible for viable candidates — candidates that have a chance at winning — to be included in the debate.

  7. The CPD claims to be a private institution.
    But I would question that, given the ties it has to the established parties, and the at least semi-official position it has in presenting the active presidential candidates to the electing public.

    1. The parties are not parts of the government. They are more like competing professional organizations for the political class.

    2. The CPD position is no more semi-official than that of the American Red Cross.

      It is, in fact, a registered 501(c)(3) organization, which makes it a ‘publicly supported organization.’

      Whatever ‘position’ the CPD has is completely unofficial and comes from 1) their claims, and 2) the willingness of the press to believe them, or at least to pretend to believe them.

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  9. without going through the highly reported major party primary process, no independent or third party candidate is likely to be able to do that.

    So, duh, go thru the highly reported major party primary process!

    1. In Iowa you are prevented from doing so unless you achieved 3% of the vote in a previous state wide election.

      As for doing it as a Republican/Democrat, failing to win the nomination then changing to a different party, it has been done (Roosevelt, Wallace, Anderson, perhaps others), but requiring this to get a debate invitation seems somewhat strange. Sort of like requiring someone to be a TV celebrity …

  10. “The huge amounts of corporate contributions to the CPD”

    Equalling roughly $0,000,000,000,000.00 every single year.

    This was proved four years ago. The Libertarian Party, and Reason, and Level the Playing Field, and Ralph Nader, seem immune to assimilating this fact.…..958-1.html

    1. Seems like the article shows the opposite of what you say.

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