As we reported in our last letter, advocates of opening the fall presidential debates to a third candidate have received their day in court.
Reporting by Bloomberg and other media on the Jan. 5 hearing stressed U.S. District Judge Tanya Chutkan's intense questioning of the defense attorney for the Federal Election Commission (FEC), Robert Bonham. The transcript, which has just become available, tells the story vividly.
"I hate to jump right in," Judge Chutkan said to Bonham, as he was beginning his presentation, "but I'm going to because I have a lot more questions for you, frankly, than I did for Ms. Shapiro" - a reference to Alexandra Shapiro, the attorney for Level the Playing Field (LPF), the non-profit organization that is the primary plaintiff. Shapiro had gone first.
"If you start out this case reading your decision, your legal analysis, which is, I don't know, eight pages, seven pages...you would think that the evidence [brought by LPF] was basically a rehash" of arguments in other cases against the FEC, said the judge. But this case uses new evidence, and she wondered why the FEC made so little effort to rebut it, other than to cite a court decision in 2000 rejecting a lawsuit by presidential candidate Pat Buchanan, who was denied admission to the debates. The Buchanan case was different from the LPF case, as the judge would note.
The "decision" that Judge Chutkan referred to was the FEC's decision to reject LPF's administrative complaint asking the FEC to take action against the Commission on Presidential Debates (CPD), the non-profit that has excluded independents from the debate stage for 24 years.
The FEC, said Bonham, "is entitled to great deference on its policy judgments" on how to interpret the law.
Having a Hard Time Finding the FEC's Analysis
Judge Chutkan replied: "That's not in dispute. I have to give the agency's decision deference, but if the agency doesn't articulate any analysis in dismissing the complaints, why should I grant the agency deference? I'm finding it very difficult to determine whether there's any - what it seems to me that what the FEC has done in its analysis is simply say more of the same, Buchanan, more of the same, Buchanan. I mean, Buchanan was a particular case that dealt with particular facts. And I don't think, frankly, that is provides you with everything you think it does."
She went on, "And I strain in my reading of the analysis to find your articulation of what fact criteria you used, what analysis you used in coming to your conclusions. Your conclusions are in there. But I'm having a hard time finding the analysis. And without such analysis, how can I give the decision the deference I'm supposed to? How can I determine if it's reasonable?"
This dearth of analysis was especially striking given two extensive pieces of evidence offered in the LPF suit - evidence that Shapiro emphasized during her oral presentation. The first was a study by Clifford Young of the respected international research firm Ipsos that looked at "over 800 instances of poll results" and concluded that in order to achieve the 15% threshold that the CPD requires for independents to make the debate stage, a "candidate must achieve a minimum of 60 percent [national] name recognition and more likely closer to 80." The second piece of evidence, a study by pollster and campaign consultant Doug Schoen concluded that, to achieve that level of name recognition, "an independent would likely need to raise and spend at least around $265 million."
The Catch-22 of the Debate Commission's Rule
Shapiro continued, "And it's obvious, I think, that there's no way that anyone who's not a self-funded billionaire would have the ability to raise anything close to these funds, especially because of the Catch-22 that the CPD's rule has created in that...if you go around and try to raise money, the first question potential donors are going to ask you is...Does this person have a serious chance of getting elected? And if they can't get into the debates, then, of course, they don't."
Shapiro also noted that "the other thing that Young and Schoen address...was how accurate are polls, particularly in three-way races. And their findings on this topic further demonstrate the bias inherent in the operation of the CPD's rule." Young examined data from over 1,000 polls and found that, for example, "a hypothetical candidate with a 17 percent vote share has a nearly 40 percent chance of actually polling below 15 percent."
The LPF suit also pointed out that directors of the CPD acted in a partisan manner, by donating to candidates of their party or otherwise helping them. "For example," said Shapiro, "John Danforth, former Republican Senator, hosted a fundraiser for Jeb Bush's super-PAC.... Antonia Hernandez donated the maximum to Hillary Clinton... Leon Panetta endorsed Hillary Clinton publicly. Olympia Snowe donated to Jeb Bush's campaign as well."
Judge Chutkan raised concerns about whether the FEC, in its decision, gave proper consideration to these arguments and others made by LPF.
You Have to Acknowledge the Evidence to Refute It
"There's no mention," the judge said, "of a substantial amount of new evidence that was brought since [the Buchanan] case and that was brought since the earlier complaints. And that's what I'm asking. Aren't you required to acknowledge the evidence...so you can refute it? You can say why it's not important, you can say why the claims against the other directors are the same, but you can't ignore it, can you?"
"The commission was following its established precedent," protested Bonham.
"Well, that's the problem," replied Chutkan. "The commission just seems to be saying, 'we get to do what we get to do because we've always gotten to do it'.... And that's my problem.... It is simply the conclusory nature which simply says we always do this, this is what we get to do, and this is what we're going to continue doing."
In a nutshell, the judge described the process that has frustrated LPF and other organizations that attempt to use rational arguments before the FEC and the CPD. Forget the evidence. "We get to do what we get to do."
The Plaintiffs' 'Allegations Are Substantive'
Again, Bonham protested. And again, Chutkan responded. "Let me accept for the purpose of argument, your premise that the FEC doesn't have to accept every piece of evidence. But does that then mean that they can simply ignore large amounts of evidence?... If you don't mention the evidence, how can I determine that you considered the evidence?"
She went on to say that the plaintiffs' "allegations are substantive.... They provide examples and evidence of their positions. What I've seen in the analysis is basically a conclusion that says, 'they don't like the way we do things, but we can do things the way we do things.' And I don't mean to be flip here, but I am surprised at the decision of the FEC to basically ignore a lot of substantive evidence and substantive allegations.... I'm surprised by that decision."
Of course, no one can prejudge what a judge will decide based on the questions she asks in a hearing. But there's no denying the questions for the FEC were tough, well-informed, and on the mark.