Via Ballot Access
On June 22, a lawsuit was filed to expand entry into the general election presidential debates. The plaintiffs include Level the Playing Field, Peter Ackerman, the Libertarian Party, and the Green Party. The combination of those plaintiffs is a striking feature of the lawsuit. Level the Playing Field is a successor organization to Americans Elect, and Peter Ackerman was the chief force behind Americans Elect. This is the first joint venture of the Americans Elect team with any political parties.
The case is Level the Playing Field v Federal Election Commission, U.S. District Court, Washington D.C., 15cv-961. It is assigned to U.S. District Court Judge Tanya S. Chutkan, an Obama appointee.
Americans Elect had been formed in 2010, and it petitioned to qualify itself as a political party all during 2011 and the first five months of 2012. It was well-funded, and hoped to attract a prominent centrist to run for president in the general election of 2012. Although Americans Elect was legally and technically a political party, its goal was not to create a bona fide new party, but simply to ease the ballot access burden for an independent presidential candidate. Americans Elect held an on-line "primary" to choose a 2012 presidential nominee, which was won by former Louisiana Governor Buddy Roemer. However, Roemer did not get nearly enough on-line votes to meet the Americans Elect minimum, and Americans Elect decided not to run any presidential nominee, and disbanded.
In the latter months of 2011, former Utah Governor Jon Huntsman for a while decided to seek the Americans Elect nomination, but then lost interest and instead sought the Republican nomination.
Americans Elect learned from this experience that the exclusionary nature of general election presidential debates was a major reason no truly prominent candidate wanted the Americans Elect nomination, and its leaders then created Level the Playing Field to work for reform of the debates.
The lawsuit depends on the fact that federal campaign finance law, and FEC regulations, require debate sponsors (for federal office) to be truly nonpartisan, and to have objective standards on who may participate.
The Complaint shows why the Commission on Presidential Debates is not truly nonpartisan. The dominant figure in the Commission on Presidential Debates has always been Frank Fahrenkopf, who has been a co-chair of the CPD during its entire existence. He was national chairman of the Republican Party 1983-1989. He has given over $90,000 to Republican candidates since he has been a co-chair of CPD. During the 2012 presidential election, he was head of the American Gaming Association, which spent more than $3,500,000 on lobbying in 2011 and 2012 and which gave over $150,000 to Democratic and Republican candidates in those two years. He has described himself as "the Wizard of Oz" for his "behind the scenes" activities, and he has referred to the CPD as "my commission."
Many of the fifteen Commissioners of the CPD appear to be figureheads. The Board may meet as infrequently as once per year, and generally by conference call. For years, the CPD reported in IRS filings, under penalty of perjury, that its board members devoted zero hours per week to the organization, even in presidential election years.
Many board members do not even attend the debates. Some of the board members are individuals who have given large contributions to Democratic or Republican candidates.
Federal campaign law does not permit corporations to make campaign contributions to political parties or federal candidates (the Citizens United decision did not deal with contributions, only independent expenditures). The CPD receives millions of dollars in contributions to pay for the debates. It does not reveal its contributors, but it is known that the great bulk of contributions come from for-profit corporations, such as Anheuser-Busch, Southwest Airlines, Electronic Data Systems, AT&T, American Airlines, Ford, Philip Morris, IBM, J.P. Morgan, and BBH New York.
The Complaint charges that these corporate contributions are campaign contributions to the Democratic and Republican presidential nominees, and are therefore illegal. The Complaint also points out that the Political Action Committees of these corporations regularly contribute heavily to Democratic and Republican candidates.
The Complaint summarizes social science evidence that the 15% poll standard, in practice, can never be met by any presidential candidate who does not go through the major party primary process, unless that candidate spends more than $250,000,000. In reality, therefore, the criteria are not neutral. The Republican and Democratic nominees, by virtue of going through their party’s presidential primaries, will always meet the 15% polling standard by virtue of a majority of Americans being partisan Democrats or partisan Republicans.
The Complaint also charges that the CPD breaks federal law by failing to disclose its donors.
The Complaint summarizes evidence that polling is no longer accurate, especially when it includes more than two candidates. And it points out that the CPD never announces which polls it will use to measure any candidate’s support.
The Complaint charges that the FEC broke its own rules by ignoring Level the Playing Field’s request for a rule concerning the CPD, for 284 days, when the rules say the FEC should have acted within 120 days. The Complaint asks that the FEC either act within 30 days, or else that the Court itself hear the case against the CPD.
In related news, on June 17 the Annenberg Working Group on Presidential Campaign Debate Reform issued a report, saying that a majority of the Group believes the 15% poll threshold should be lowered to 10%. And on June 3, Independent Voting filed its own petition with the FEC, asking for debate reform.
