Getting the Libertarians Into Presidential Debates Via Lawsuit

The Commission on Presidential Debates and the Federal Elections Commission are both being sued for their roles in keeping third parties out of presidential debates.

Gary Johnson, likely to be the Libertarian Party's (L.P.) presidential nominee after the Party's National Convention which begins in Orlando on Friday, has consistently said his chances of doing very well in the general election depend on getting into a nationally televised debate with his major party opponents.

The front door in to those debates requires being on the ballot in enough states that an Electoral College victory is technically possible. That's a hurdle the L.P. will have no trouble meeting. (They have 32 states already in the bag and with signature deadlines still ahead in the others, feel reasonably confident they will get all 50 plus the District of Columbia.)

The other criteria to get in set by the Commission on Presidential Debates (CPD) is that a candidate must be polling at least 15 percent in five national polls, said polls not specifically named.  

But those polls will, according to the CPD, "be selected based on the quality of the methodology employed, the reputation of the polling organizations and the frequency of the polling conducted. CPD will identify the selected polling organizations well in advance of the time the criteria are applied."

Johnson has, as far as I know, been included in three national polls so far, earning 11 percent in March in a Monmouth University poll, 10 percent this month in a Fox News poll, and 10 percent this week in a Morning Consult poll.

Part of the problem, Johnson thinks, is that he is, after all, not yet officially the L.P. candidate. He anticipates that if the two-governor team of Johnson-William Weld come out of Orlando triumphant, pollsters will start including him more regularly.

A virtuous circle of polling and media will then ideally get him into the debates, which will feed more media and more polling and then, well, if not victory, at least something unprecedented to the Libertarian Party. Johnson's 1.27 million votes in 2012, less than a full percentage point, was their best raw number total in their 44 year history so far. Johnson very much wants to beat that.

The L.P. has not been counting on just following the CPD's existing rules as a way into the vitally important debates. Two distinct lawsuits are in process to try to achieve the same results.

One, which I reported on last September when it was filed in U.S. District Court in D.C., has the L.P., Johnson, and the Green Party and its candidate Jill Stein among the plaintiffs.  

That case makes what is as near as I can tell a fresh legal claim, that what the CPD does in collusion with the two major parties is in effect an antitrust violation of "political markets" in how they are "exercising duopoly control over presidential and vice presidential debates in general election campaigns for the presidency of the United States."

This amounts, the suit argues, to an illegal domination of "cognizable 'presidential elections market' [and] cognizable 'political campaign market' for purposes of the antitrust laws." 

The suit, in its own language:

challenges the per se illegal continuing horizontal boycott of Plaintiffs by the RNC and the DNC utilizing their jointly created and maintained Commission [on Presidential Debates], as the barrier to entry in each of the above-referenced cognizable markets.

The suit seeks treble damages based on what the defendants claim they lost by being barred from the debates, the dissolution of the CPD itself, and an injunction against "further barriers, boycotts or other agreements in restraint of trade….that cause the exclusion from presidential debates of presidential candidates who have obtained ballot access in a sufficient number of states to win an electoral-college majority."

Bruce Fein, the lawyer in the case, said in an email regarding its status that "We filed our Opposition to Defendants' Motions to Dismiss, they filed Replies, we filed a motion for oral argument which Defendants opposed. We await a ruling from Judge [Rosemary] Collyer." He declined to elaborate.

Another outstanding suit to get the L.P. in debates was filed against the Federal Election Commission last June. 

A recent motion for summary judgment in the case for the plaintiffs, including the L.P., sums up the argument, after pointing out CPD has always been a deliberate duopoly for the Republicans and Democrats, always led by a team from both parties:

For years, the CPD has been violating FECA and FEC regulations limiting debate-sponsoring organizations' ability to use corporate funds to finance their activities. To accept corporate contributions and expenditures, a debate staging organization must be "nonpartisan," meaning it may not "endorse, support, or oppose" political candidates or parties, and it must use pre-established objective criteria to determine which candidates may participate. The specific, detailed, and extensive evidence Plaintiffs presented in their administrative complaints shows that the CPD does not remotely meet these requirements. Nevertheless, the FEC refused to enforce the law and ignored virtually all of this evidence in conclusorily dismissing the complaints even though there is plainly reason to believe that the CPD is violating FECA….

….a debate staging organization cannot use a criterion that only the Democratic and Republican candidates can realistically satisfy. But that is precisely what the CPD has done.

The CPD requires a candidate to poll at 15% in an average of five unspecified national polls taken in mid-September. This level of support is virtually impossible for an independent candidate who is not a self-funded billionaire to achieve. Candidates who do not participate in the major party primaries lack access to free media coverage and must rely instead on paid media to garner the necessary name recognition to satisfy the rule. Studies show that to gain sufficient name recognition to poll at 15%, an independent candidate would have to spend over $250 million. This is an unheard-of amount of money for an independent candidate to raise, especially before appearing in any televised debates….

And even if it were possible for an independent candidate to raise this amount of money, it would not matter because the CPD's polling criterion works to the systematic disadvantage of non-major-party candidates…

That all should be enough to get the FEC to do something, the suit argues. But:

Despite these allegations and the detailed evidence substantiating them, the FEC – itself by statute a bipartisan organization – simply turned a blind eye, as it has in the past, to protect the CPD and the major parties. The FEC relied on an interpretation of its debate staging regulation that is at odds with the text of the regulation and inconsistent with FECA. The FEC ignored virtually all of Plaintiffs' allegations that the CPD is biased in favor of the two major parties. Its cursory analysis of Plaintiffs' detailed evidence that the polling criterion disproportionately disadvantages independent candidates was conclusory and illogical, and failed to actually consider Plaintiffs' allegations. This was arbitrary, capricious, and contrary to law…..

the mid-September timing of the CPD's 15% determination disadvantages independent candidates. The CPD has never and would never exclude a Republican or Democratic nominee from the debates. By contrast, independent candidates cannot be certain that they will be eligible for the debates until the CPD makes its determination two months before the election. But participation in the debates is a prerequisite for victory. The CPD's timing requires independent candidates to campaign and fundraise for months without even knowing whether or not they will ultimately be eligible for the debates and thus even have a shot at winning. This uncertainty creates a serious and concrete obstacle to independent campaigns. Donors, volunteers, and voters are much less likely to support, and the media much less likely to cover, any candidate whose participation in the debates is still up in the air…..

the FEC has consistently rejected challenges to the CPD's 15% polling threshold….including the administrative complaints in the present action. If the FEC interprets its existing regulations to permit a polling threshold that is not reasonably possible for anyone other than a major-party candidate to satisfy, it is doubtful that the FEC is willing or able to police the use of polling at all.

The motion for summary judgment requests that:

The Court should grant summary judgment for Plaintiffs, and direct the FEC to do its job, which is to enforce the law and put an end to the CPD's biased, anti-democratic, and fundamentally corrupt and exclusionary polling rule.

That second case is before Judge Tanya Chutkan, also in U.S. District Court for D.C., and also awaiting a decision on the motions for summary judgment.

Time is obviously of the essence in both cases, but the lawyers involved cannot predict or be sure whether the judges in the two cases will act in a timely enough fashion.

Not to be a bummer, but no one can force the other candidates to participate in debates if they don't want to. It remains to be seen how Trump and Clinton would react to being required to stand up in public against Johnson or any Libertarian. In 1980, incumbent Jimmy Carter refused to show up at a debate with Reagan and that year's third party star, John Anderson, and either Trump or Clinton could do the same.

As I wrote last September, "Ross Perot in presidential debates did amazingly well for non-major party candidates in 1992, then was excluded from the debates in '96 and did far less well, with his vote percentage dropping by 10 points, more than 50 percent."

In 1992, both George Bush and Bill Clinton wanted Perot in the debates, each thinking they'd be helped. In 1996, neither Clinton nor Bob Dole wanted him, so he wasn't there. If the majors see no benefit to debating a Libertarian, even these legal victories could become Pyrrhic if the majors just choose to take their own debating ball and go home.