In blunt and highly critical language, a federal judge on Wednesday blasted the Federal Election Commission (FEC) and issued a ruling that lays the groundwork for removing the primary obstacle to a serious independent running for president in 2020.
In her 28-page decision, U.S. District Court Judge Tanya Chutkan said that, in rejecting a complaint by Level the Playing Field, a group seeking to change the rules for participation in the final fall debates, the FEC had acted in a manner that was "contrary to law."
The FEC was the defendant in the case, but the real villain in the story is the Commission on Presidential Debates (CPD), a private organization that is dominated by Democratic and Republican party stalwarts.
The CPD's rules - mainly the 15% threshold late in the election cycle for admission -- have effectively excluded independent candidates from participating in the September and October debates, thus denying them the chance to become president -- even though polls clearly show Americans want that choice.
If You Aren't in the Debates....
The lawsuit by Level the Playing Field (LPF) provided evidence that the CPD's board members, contrary to the law, were acting as partisans through donations, fundraisers, and public pronouncements. The suit also offered studies by experts that showed that it was practically impossible for independents to meet the threshold set by the CPD for inclusion in the debates. And, as any political observer knows, if you are excluded from the debates, you can't become president.
The FEC blithely dismissed challenges and recommendations by LPF, so the non-profit, founded by scholar-businessman Peter Ackerman, member of the executive committee of Atlantic Council's board of directors and the former chairman of Freedom House, filed a lawsuit in September 2014. The suit was later joined by the Libertarian and Green parties.
Judge Chutkan held a hearing on Jan. 5 in her courtroom on Constitution Avenue in Washington. She heard from both Alexandra Shapiro, attorney for the plaintiffs, and Robert Bonham, the FEC counsel. At the time, Chutkan was highly critical of vast holes in the FEC's defense, but, even so, her written decision on Wednesday landed like a bombshell.
In one important passage of her opinion, the judge referred to evidence submitted by the plaintiffs and wrote:
"Given these expert analyses, the evidence that since 1988 only one non-major-party candidate, Ross Perot, has participated in the debates, and only then at the request of the two major parties, and the evidence that the CPD's chairmen and directors are actively invested in the partisan political process through large donations, the court is perplexed that the full extent of the FEC's analysis consisted of no more than a footnote stating that even if the fifteen percent threshold excluded third-party candidates, this still did not indicate that it was not an objective criterion. This begs the question: if under these facts the FEC does not consider the fifteen percent polling criterion to be subjective, what would be?"
The judge concluded by ordering the FEC to "reconsider the evidence and allegations and issue a new decision consistent with this Opinion within 30 days." Otherwise, she wrote, the plaintiffs "may bring...a civil action to remedy the violation involved in the original complaint."
She also ordered the FEC to "reconsider the Petition for Rulemaking" that the plaintiffs had requested and "issue a new decision consistent with this Opinion within sixty days."
Pesky Flies No Longer
On display in the judge's ruling was her exasperation with the high-handed and dismissive manner with which the FEC treated the complaints and suggestions of LPF. Anyone who has dealt with the FEC and the CPD in trying to open up the debates will find that characterization familiar. Both commissions have simply ignored critics, swatting them away like so many pesky flies.
But the judge did not tolerate that attitude. She blasted the FEC for its "refusal to engage in thoughtful, reasoned decision-making in either enforcement or rulemaking in this case." She called the FEC's factual and legal analyses "threadbare," and she said that while courts must be "'exceedingly deferential' when reviewing an agency's construction of its own regulations," in this case, "the court cannot defer to the FEC's analysis and further concludes that the FEC acted arbitrarily and capriciously and contrary to law when it determined that the CPD did not endorse, support, or oppose political parties in the 2012 election."
'Numerous Statements by CPD Chairmen and Directors'
In her ruling the judge cited evidence involving "numerous statements by CPD chairmen and directors, including: the CPD was not likely to look with favor on including third-party candidates in the debates (CPD Co-Chairman Fahrenkopf, AR 2252); the CPD should exclude third-party candidates from the debates (CPD Co-Chairman Kirk, AR 2252); 'Democrats and Republicans on the commission  are interested in the American people finding out more about the two major candidates - not about independent candidates who mess things up' (CPD Director Alan Simpson, AR 3095); '[t]here's no question' that 'the two major parties [have] absolute control of the presidential debate process' (CPD Director John Lewis, AR 3095); 'responsibility for [the debates] should rest with the political system - with the Democratic and Republican Parties...[and] if the Democratic and Republican nominees agreed, other candidates could be included' (CPD Director Minow, AR 3095); the CPD 'is not really nonpartisan[;] [i]t's bipartisan' (CPD Director Norcross, AR 3095); and the CPD is 'extremely careful to be bi-partisan' (CPD Director Vucanovich, AR 3095)."
Political Donations by Fahrenkopf and McCurry
The plaintiffs, wrote Judge Chutkan, submitted evidence that CPD Co-Chairman Fahrenkopf, the former chair of the National Republican Committee, "donated more than $23,000 between 2008 and 2012 and $35,000 between 2012 and 2014 to the Republican Party" and that Mike McCurry, the former press secretary to President Clinton who stepped down late last year as the other co-chairman of the CPD, "donated almost $85,000 to Democrats between 2008 and 2012." Other CPD directors made large donations to their respective parties as well.
Chutkan also cited the reports of two experts, submitted to the court by LPF: "Dr. Clifford Young, who discussed the ability of third-party or independent candidates to meet the CPD's fifteen percent polling criterion; and Douglas Schoen, who discussed the financial obstacles to achieving name recognition to meet the CPD's polling requirement." And LPF submitted much more evidence besides."
Judge Points to a 'Mountain of Submitted Evidence'
The judge then pointed out that the FEC "addressed just two items from the mountain of submitted evidence" - two minor items that the FEC did not effectively refute. Judge Chutkan wrote:
"A casual reader would get the distinct impression that these two pieces of evidence were all that the Plaintiffs had even submitted. Certainly the court does not expect the FEC to discuss every single page of evidence in order to demonstrate that it had carefully considered the facts, but here the FEC did not even mention [her italics] the vast majority of the substantive evidence submitted regarding partisanship, party support, and the non-objectivity of the CPD's fifteen percent threshold. While the court hopes that the FEC carefully reviewed the evidence submitted by Plaintiffs before thoughtfully reaching its conclusions, the two Factual & Legal Analyses provide no basis whatsoever for the court to reach that conclusion."
Judge Chutkan wrote that she was, therefore, "faced with the difficult task of determining the reasonableness of the FEC's analysis when the FEC did not provide any indication that it actually considered the submitted evidence and engaged in any reasoned decision-making."
She continued, "The task is made all the more difficult by the fact that the evidence unaddressed - or outright ignored - by the FEC is quite substantial." Among that substantial evidence was Dr. Young's finding that "for a third-party or independent candidate to achieve fifteen-percent approval in polls, she 'must achieve a minimum of 60% [national] name recognition, and likely 80%."
Why is the judge's opinion so important?
Shapiro explained that the decision "marked the first time the FEC and CPD have been successfully challenged over debate rules." She added, "This is an enormously important ruling. It could pave the way for a new kind of election in 2020."
LPF wants to substitute for polling a different method of choosing the third candidate on the stage with the Democrat and Republican in the 2020 election. The group has proposed signature-gathering or a national primary, and it has offered to discuss alternatives with the CPD - to no avail.
We will watch the next steps of the FEC and CPD carefully. It is clear that the CPD has never in its history been faced with the kind of persistent, expert challenge presented by Level the Playing the Field. With Judge Chutkan's decision, democracy in America has taken a major step forward.