Five days after its stunning defeat in U.S. District Court, the Federal Election Commission (FEC) asked Judge Tanya S. Chutkan to clarify and reconsider her order. Four days later the judge responded - and not in a way that would make the FEC very happy.
In her new order, the judge reminds everyone that she found the FEC had "acted arbitrarily and capriciously and contrary to law by failing to notify respondents, failing to consider evidence, failing to articulate its legal analysis, and failing to engage in reasoned decision-making with respect to its conclusion that the CPD's polling criterion was objective."
The "CPD" is the Commission on Presidential Debates, which for decades has managed to keep independents and third-party candidates out of the final general election debates, through a rule that requires average support of 15% in five polls taken in September, just a few weeks before the first debate.
Level the Playing Field (LPF), the plaintiff, argued powerfully in its case, using studies by Clifford Young of Ipsos and respected strategist Douglas Schoen, that only a billionaire using his or her own money could spend enough to reach the 60%-to-80% name recognition required to meet the 15% threshold. The FEC, which LPF had to sue for not enforcing the law against the CPD, merely ignored the Young and Schoen studies.
'The Court Is Perplexed'
But back to the judge's ruling last Friday. After reiterating the reasons she found in favor of LPF and against the FEC and the CPD, giving short shrift to the request for reconsideration and clarification, the judge granted the FEC an extra 30 days to respond (the new deadline is April 3), but not without some strong words:
"The FEC requests additional time to make its reason-to-believe determinations because it must provide respondents with at least fifteen days to submit written responses to the allegations. The FEC further points out that reconsidering the complaint and over 700 pages of exhibits from Plaintiffs "takes some time."
"The court is perplexed by the FEC's assertion that it needs additional time to review the Plaintiffs' submissions given its earlier representations to the court that it had already carefully analyzed this evidence before dismissing Plaintiffs' administrative complaints. Nevertheless, the court will grant the FEC's request for additional time."
Now that Judge Chutkan ruled in LPF's favor, we will have to wait until April 3 for the FEC's reply and watch the next chapter unfold.
Sympathy for the FEC?
But let's not forget, the Commission on Presidential Debates is the real culprit here. After H. Ross Perot shocked both Democrats and Republicans by receiving 19% of the vote in the 1992 election - after his strong debate performance - it was clear that neither party wanted to ever see another independent challenger on the stage again. The CPD changed their rules, and, since then, just two debaters have performed in the final three presidential debates.
Meanwhile, the two parties have moved away from the center, trying to appeal to their extreme wings.
Therefore, it should come as no surprise that for the 2016 election, the parties produced presidential nominees with record combined unfavorable ratings approaching 120 percent.
The system is clearly broken because it is rigged. The public knows it, and voters want a third choice, but the CPD continues to stand in the way - for the simple reason that it is run by partisans from the two parties, and the two parties don't want any competition.
Over the past several years, LPF and other groups have asked the CPD to change its rules - but to no avail. Then LPF asked the FEC to enforce the law and issue a new rule-making on presidential debates. The FEC, reflexively defending the CPD's actions as it has done for decades, merely batted away LPF's complaints. That was wrong. The FEC should have taken LPF's complaints seriously, but ultimately, the CPD bears the blame.
After the FEC's rejection, LPF filed a lawsuit, which was joined by the Green and Libertarian parties. As Brian Doherty wrote on the Reason.com website, "while technically against the Federal Election Commission (FEC) [the lawsuit] is ultimately targeting the Commission on Presidential Debates (CPD) for locking out third parties while pretending to be nonpartisan."
In its lawsuit, LPF provided copious evidence regarding political contributions and other partisan activities by CPD Directors, including its current co-chair Frank Fahrenkopf (former chairman of the Republican National Committee) and recent co-chair Mike McCurry (a Democratic stalwart who served as press secretary to Bill Clinton).
The federal court decision should embarrass not just Fahrenkopf and McCurry, but other members of the board, including former Rep. Jane Harman (D-Calif), former Sen. Olympia Snowe (R-Maine), and former PBS anchor Jim Lehrer. Their positions are getting more and more lonely.
Recently, the CPD has seen the resignations of former Gov. Mitch Daniels, former Secretary of Defense Leon Panetta, former Princeton University president Shirley Tilghman, and former CBS anchor Bob Schieffer. They may have been smart to jump ship, but they are not serving the public interest by remaining silent.
Why they left the CPD, we have no way of knowing. For a commission whose mission is to stage public debates, the CPD is highly secretive. Since mid-2012, the commission has averaged roughly four postings a year of news on its website, and the comings and goings of its directors are rarely noted. When the CPD decided to keep its 2012 rules for 2016, its press release implied that the vote was not unanimous, but the reasons for dissent were not revealed. The last posting about membership on the board occurred in April 2014. Three of the directors elected at that time have since resigned.
Something to Cheer About
The media gave strong coverage to Judge Chutkan's decision on Feb. 1, recognizing that the ruling opens the way for a third candidate in the debates and a completely new kind of election in 2020.
Typical was a news article in RealClearPolitics by Melissa Cruz on Friday, headlined, "Third Parties See Chance for Spot in Presidential Debates." Cruz wrote:
"Except for 2008, the Commission on Presidential Debates has been sued in every presidential cycle since it was formed in 1987. Those court challenges, usually centering on opening the process to more candidates, have never gotten anywhere - until now. Those frustrated with the two-party domination of America's election process finally have something to cheer about, thanks to a federal judge's ruling against the Federal Election Commission. Reformers hope this decision could result in the next presidential debate stage being more crowded - and more independent - than it has been since the 1990s."
It's not just that the stage will be more crowded. Judge Chutkan may have opened the way for a more open and functional democracy in the United States. Americans want, and deserve, more choices.
The exciting news is that the judge has made it crystal-clear that by April 3, 2017 the FEC has to go through the evidence and issue a reasonable decision, according to her original order. Stay tuned.