The rejection was no surprise. The FEC has been described by its chair, Anne Ravel, as "dysfunctional." Its default position is to do nothing. What was surprising - and gratifying to the millions of Americans who want the rules relaxed and the debates open to another candidate - were the comments of Ravel herself.
Ravel, along with another member of the six-person commission, supported the rulemaking request. While the FEC noted that a similar request had been rejected in 2009, Ravel said emphatically that times had changed and that using polling figures to determine who gets into the debates is a mistake.
Chair Ravel stated:
"Polling thresholds in 2009 were once a valid, fair, and unbiased way to determine eligibility for debates to ensure that there was no unfair corporate promotion. We know now that things have changed in the last couple of years.
"Even...Nate Silver himself, who uses polling, said that the world may have a polling problem.... He gave a number of examples: the Scottish independence referendum, the 2014 U.S. mid-terms, the Israeli legislative election, and the 2012 presidential election, and this came from Politico.
"And more recently a New York Times article with respect to England as well.... Our obligation, when it comes before us, is to make a decision about whether it is fair and whether clearly the need to have representation from third-party candidates and those who might not actually make it to the polls for whatever reason, but may actually be viable candidates. I think it is something that is within our purview and something that we should try to ensure, and so for those reasons...I think we should initiate a rulemaking."
The CPD has two criteria for debate participants: First, getting on the ballot in enough states to constitute 270 electoral votes (a majority in the Electoral College). This makes eminent sense. It's not easy, but it can be done, and it requires actual voter contact. Second, receiving average support of 15% in polls taken about seven weeks before the presidential election. Getting that much support that late is extremely difficult - no one, other than a participant in the Democratic and Republican debates, has done it in 60 years (Ross Perot had just 8% in mid-September 1992). Polls, as Ravel stated, are inaccurate. And, most important, the decision on being accepted into the debates comes far too late in the game to get media and donor attention.
As former Sen. Joe Lieberman wrote yesterday in U.S.News & World Report:
"Remember that an independent candidate does not benefit from the wall-to-wall media coverage that the Republican and Democratic candidates receive through participating in their party primaries. This media coverage has enabled relatively unknown Republicans or Democrats to become nationally known names.
"Without this media coverage an independent is forced to raise and spend exorbitant sums of money to gain the necessary name recognition among voters. There are many great Americans who might consider running for president if the rules gave them a fair shot, but who would run as an independent when our electoral process is blocked by these kinds of unfair obstacles?
The political world has changed in other ways since 2009 as well, as another FEC commissioner who voted to open the rulemaking, said at the hearing last week.
Ellen Weintraub stated: "If we open up a rulemaking process, we could get comments and see whether there is a way that the rules could be tweaked in a way they could be more inclusive and encouraging of greater political participation which I think is a really important goal. I know everyone at the table talks about their desire to strengthen party organizations and I -- I do think party organizations are important for our democracy, but the reality is -- and I think my source here is a pew poll, pew Research Center, based on 2014 data, 39% identify as independents, 32% as Democrats, and 23% as Republicans.
There are more people who identify and I think it is particular true amongst younger people, amongst the millennial generation, increasing number of people that don't identify with either party. [Actually, the latest poll, cited July 5 by Chuck Todd on "Meet the Press," has 45% of voters identifying as independents, 27% as Democrats, and 20% as Republicans. Separate research by Peter D. Hart found that more than half of younger voters say they are independents.]
"They register as independents if they register. [They] identify themselves as independents, and may not feel like a debate between a republican and democrat is something that they are particularly engaged in or is going to encourage them to tune in and get involved and to get out and vote, and I think those are all important concerns for us.... With all due respect to counsel, I think we ought to open a rulemaking."
As Ambassador James K. Glassman told NewsmaxTV's "Hard Line" host Ed Berliner yesterday, the 45% of Americans who identify themselves as independents, "will never have a candidate to vote for unless that candidate is validated through a debate." The take away here is simple: we need to change the rule.
Fortunately, the FEC's 4-2 rejection of the rulemaking request isn't the end of the line. Far from it. Level the Playing Field, the group that publishes this newsletter, has filed a federal lawsuit demanding that the FEC enforce the law and stop the CPD from excluding independents. Meanwhile, there are signs that the CPD may finally be coming to its senses.
Here are some articles about the recent failures of polling:
Nate Silver: The polls are failing us
British Election's Other Losers: Pollsters