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.)
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.