Advocates of opening up the final fall presidential debates to a third candidate got their day in court on Thursday, with the judge leveling tough questions at the lawyer defending the actions of the commission that sets the rules.
In a federal district courtroom in Washington, Judge Tanya Chutkan heard cross-motions for summary judgment in the case of Level the Playing Field, et al., vs. FEC, a suit filed last year to force the Federal Election Commission (FEC) to do its duty and enforce the laws the Commission on Presidential Debates (CPD) is violating by excluding independent candidates from the debate stage.
Those rules have effectively prohibited anyone but the Democratic and Republican nominees from participating in the final presidential debates since the 1992 appearance of Ross Perot.
Level the Playing Field (LPF) had also previously asked the FEC for a rule-making, but, after a long delay, the commission, in a 3-2 vote, rejected the request despite an avalanche of support - more than 1,200 letters backing its position versus just one, from the CPD itself, on the FEC's side. After that rejection in 2015, and the FEC’s dismissal of LPF’s complaint against the CPD, LPF filed its federal lawsuit.
With that rejection in 2015, LPF filed its federal lawsuit.
Did the FEC 'Ignore Evidence'?
The judge on Thursday gave each attorney 30 minutes, interrupting both with questions. Going first was Alexandra Shapiro, representing LPF, a non-partisan, non-profit group headed by businessman and international-relations scholar Peter Ackerman. She was followed by Robert Bonham, the FEC lawyer.
Here is how Kenneth P. Doyle, a reporter for Bloomberg BNA, described the proceedings in the lead paragraph of an article on Friday, below a story headlined, "Judge Grills FEC About Presidential Debates":
The Federal Election Commission apparently ignored evidence that the 2016 presidential debates violated campaign finance law, because the debates were unfairly rigged to include only the major party nominees, a federal judge suggested.
Doyle wrote that Judge Chutkan "repeatedly challenged FEC attorney Robert Bonham," asking him "why the FEC didn't fully explain its reasons for dismissing an enforcement case against" the Commission on Presidential Debates (CPD).
In the article, Doyle wrote that Shapiro "pointed to academic studies indicating a candidate seeking to achieve 15 percent voter support in national polls-the level needed for the 2016 debates- must first obtain national name recognition in the range of 60 percent to 80 percent. This requires costly campaign advertising, she said, but independent and minor party candidates are subject to a 'Catch-22' because they can't raise large amounts of campaign money unless they have a chance to be included in the debates and thus have a shot at winning the presidential race."
Readers can access those academic studies, by Clifford Young of the research firm Ipsos and the veteran pollster and campaign consultant Douglas Schoen - plus much more material supporting LPF's position- in this 283-page volume. (Schoen estimated that to achieve high enough name recognition to have a shot at 15% in a three-way poll, an independent would have to spend at least $266 million, an impossible hurdle for all but multi-billionaires willing to spend their own money).
Shapiro Thursday argued that the FEC had refused to consider voluminous evidence submitted by LPF and instead simply dismissed the rule-making complaint against the CPD cavalierly.
'The most important lawsuit you don't know about'
In an article Wednesday in Business Insider headlined, "How the two-party system in American politics could finally end," Dylan Ratigan, who was formerly an MSNBC and CNBC anchor and Bloomberg global managing editor, called the FEC case "the most important lawsuit you don't know about yet."
Ratigan wrote that if Level the Playing Field succeeds,
voters in 2020 may be able to select a third viable candidate for president in a nationwide election called America's Independent Primary. The winner would then go up against the Democratic and Republican nominees in a three-way contest that would give Americans real choices. It's exactly the kind of change Americans want.
LPF has proposed America's Independent Primary (AIP) as an alternative means for determining the third person in the debates. The group asked the CPD to decide how many voters would be necessary for the commission to guarantee a place on the stage for the winner of the AIP. One million? Five million? The answer was silence.
The Ratigan piece appeared on the same day that Shapiro and Ackerman, who holds a doctorate from the Fletcher School of Law and Diplomacy at Tufts and co-chairs the advisory board of the U.S. Institute of Peace, received a warm welcome on the "Morning Joe" television program on MSNBC. Shapiro and Ackerman previewed the legal hearing.
Shapiro and Ackerman discussed with the hosts how the CPD, whose board membership is dominated by Republican and Democratic stalwarts, has concocted rules to keep independents off the debate stage. Yes, Ross Perot was able to debate Bill Clinton and George H.W. Bush, but that was before the CPD changed its rules. Perot was polling at just 8% before the debates but ended up with 19% of the popular vote in the election. As Carl Cannon points out in a recentRealClearPolitics piece, Perot hadn't actally "met the commission's threshold when he was invited to debate." Instead, he was only invited "at the request of the Bush and Clinton campaigns, which feared a backlash if they didn't open up the process."
The Democrats and Republicans on the commission did not want that to happen again.
They want to maintain their duopoly.
A slipping-away duopoly
But that duopoly may be slipping away. Evidence includes not just the court hearing on Thursday but the mass exodus of CPD board members - one-third of them in just the past year, as far as we can tell from the commission's laconic website.
Among those who have departed recently: Leon Panetta, former Secretary of Defense; Mitch Daniels, former governor of Indiana; Shirley Tilghman, former president of Princeton; and Bob Schieffer, former CBS News anchor.
Ratigan may be right: The two-party system may be on the brink of massive change. The beneficiary will not just be the majority of Americans who say they want to be able to vote for an independent for president and want the debate rules changed. The beneficiary will be our democracy.