If the FEC fails to act, the U.S. District Court should "authorize Plaintiffs to bring a civil action against the CPD, its executive director, and the directors who have participated in these violations of federal election law to remedy those violations," according to the Supplemental Complaint for Declaratory and Injunctive Relief filed by LPF on May 26.
The Complaint, signed by LPF's attorney, Alexandra Shapiro, blasted the Federal Election Commission's response to a federal court decision, saying, "The FEC continues to disregard much of the evidence" supporting LPF's claims, "and its treatment of the remainder is frivolous."
As an example, Shapiro cited an FEC claim that a Westlaw news database showed Libertarian Gary Johnson receiving substantial press coverage in 2016. The claim was a response to LPF's argument that independent candidates must spend hundreds of millions of dollars to get name recognition necessary to meet the requirement of the Commission on Presidential Debates that a candidate receive 15% in polls taken less than two months before the election.
Gary Johnson, Hawaiian Chef
But, Shapiro noted, "the FEC apparently did not...consider that 'Gary Johnson' is a common name, because its 'analysis' cites articles about dozens of Gary Johnsons who are not the presidential candidate," including a real estate agent, a former defensive standout for the San Diego Chargers, and a Hawaiian chef.
"The FEC has tried to address our arguments through cherry-picking, manipulation, and inaccuracies," said Peter Ackerman, chairman of Level the Playing Field. "That's all they can do. There is no objective, nonpartisan reason for the rule that the Commission on Presidential Debates (CPD) uses to keep an independent off the stage.
"If these rules are not changed, we might as well write into the Constitution that only Republicans and Democrats can be president. But if the debates are opened to an independent presidential candidate, you will see amazing Americans emerging and ultimately winning."
As for Gary Johnson's media coverage: In the new filing, LPF noted that the FEC's own survey of 46 major newspapers showed that on average, each paper gave Republican Donald Trump and Democrat Hillary Clinton 34.1 and 27.8 mentions per week, respectively. Libertarian Johnson received fewer than two mentions per week and Green candidate Jill Stein received less than one.
LPF, along with its co-plaintiffs, the Libertarian and Green Parties, filed its Supplemental Complaint in response to an FEC filing, which itself was a response to a blistering adverse decision by a federal court.
'FEC Acted Arbitrarily and Capriciously and Contrary to Law'
In that summary judgment decision, which was entered on Feb. 1, 2017 U.S. District Court Judge Tanya Chutkan ruled "the FEC acted arbitrarily and capriciously and contrary to law" when it summarily rejected LPF's original administrative complaints to the commission. Judge Chutkan wrote that the FEC "appears to have stuck its head in the sand and ignored" what she called a "mountain" of evidence the debate-selection criteria were rigged in favor of Democrats and Republicans and against independents.
The district court noted that given "the evidence that since 1988 only one non-major party candidate...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," it is "perplex[ing]" that the FEC is so quick to deem the CPD's criteria "objective."
In its response last week, LPF stated, "What is even more telling about the FEC's post-remand decisions is how little they do to actually defend the 15% polling criterion... It offers no justification of its own for a polling criterion so high that, since the CPD's inception, no independent presidential candidate has satisfied it."
Also in its response, LPF said that the FEC failed to specifically address more than a
"handful of the numerous inculpatory statements and partisan acts of the CPD's officers and directors."
The FEC Ducks Evidence of Partisan Activities
The FEC "does not specifically address the remaining evidence of the CPD's partisan activities, including: [Chairman Frank] Fahrenkopf's statement that the CPD was 'not likely to look with favor on including third-party candidates in the debates' [and former director] Alan Simpson's comment that '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.'" Shapiro cited many other unaddressed examples as well.
The LPF filing also responds to a new revelation by the CPD. Shapiro, the LPF attorney, is worth quoting at length here:
"In a last-ditch attempt to circumvent Plaintiffs' evidence, the CPD now claims for the first time that '[i]t has long been the informal policy of the CPD that Board Members are to refrain from serving in any official capacity with a political campaign.... It is curious that the CPD never thought to mention this until now, but, in any event, the alleged 'informal policy' is meaningless.
"By its nature, an 'informal policy' is one that is not enforced. Indeed, the CPD directors have repeatedly violated this alleged 'informal policy'; Fahrenkopf himself did so as recently as May 2017, when it was announced that he would serve as 'co-chair' of a 'fundrais[ing]' event for Nevada Republican Attorney General Adam Laxalt.
"Moreover, the 'informal policy' only purports to prohibit supporting 'political campaigns' in 'an official capacity.' That would still allow the CPD members to endorse candidates... campaign on their behalf, 'unofficially' consult campaigns, and support either Democratic or Republican parties in ways not connected to a particular campaign. This, of course, is precisely what the FEC has allowed the CPD's directors to do for... decades."
New CPD 'Political Activities Policy' Suddenly Appears
The CPD also claims to have a "formal political activities policy" that is "intended to deter CPD-affiliated persons from participating, even in a personal capacity, in the political process at the presidential level." That policy is certainly news to those of us who have followed the CPD for years. It is certainly nowhere to be found on the CPD's website.
With this newly disclosed policy, Shapiro writes in the LPF filing, "The CPD thereby tacitly admits that it was improper for its personnel to engage in such activities - if they were truly blameless, why adopt a policy prohibiting them? Indeed, the policy was supposedly adopted not long after the original action challenging the FEC's dismissal of the administrative complaints [by LPF] was filed. Moreover, the CPD never supplied this alleged policy to the FEC. All the FEC received was the one-sentence description [quoted in the preceding paragraph], which the FEC was apparently content to rely upon."
LPF also responded in detail to the FEC's critique of two studies in the original lawsuit, one by Clifford Young of the international research firm Ipsos and the other by veteran political strategist Doug Schoen.
The response concludes: "The FEC does not and cannot refute the fundamental mathematical principles that make the 15% rule biased against independent candidates."