In 2012 presidential candidates Gov. Gary Johnson and Jill Stein, along with the Libertarian and Green parties and their vice-presidential candidates, filed a lawsuit in federal court in Washington, DC, today charging that the exclusion of qualified candidates from the general election presidential debates by the Commission on Presidential Debates (CPD) violates federal anti-trust laws.
“Most Americans have no idea that the official-sounding and acting Commission on Presidential Debates is, in reality, a private organization created by the Republican and Democrat Parties and funded by special interests whose goal is to protect the status quo,” the Libertarian Party says in its mission statement. “Thus, it is no surprise that the Debate Commission has adopted ‘rules’ that make it virtually impossible for independent or third-party candidates to ever participate in the all-important presidential debates.”
The rules? To qualify, candidates must garner at least 15 percent of national voter support in national surveys – though the Libertarians say these surveys are “arbitrarily selected.” They also call this requirement “unfair and illegal,” and contend that any candidate who is qualified to be president under the Constitution and has qualified for enough states’ ballots to receive at least 50 percent of Electoral College votes should be included.
The lawsuit is funded by the Our America Initiative, a not-for-profit advocacy organization, through their Fair Debates Project. It was filed on behalf of the plaintiffs by the Our America Initiative’s attorney Bruce Fein, who served as Associate Deputy Attorney General and General Counsel to the Federal Communications Commission under the Reagan Administration.
Announcing the filing of the complaint, Our America Initiative Senior Advisor Ron Nielson stated, “A majority of Americans today do not believe that either the Republican or Democratic parties represents them. Yet, through the Commission on Presidential Debates, the two major parties have seized and maintained control over the televised debates voters see every four years, and have gone to great lengths to insure that no candidates other than their own have the opportunity to appear on the debate stage. This lawsuit seeks to change that, and give the American people a chance to see that there are other real choices.”
The legal challenge maintains that the Commission on Presidential Debates, a private 501©(3) organization created in 1987 by the Republican and Democratic national parties, intentionally limits participation in the nationally-televised debates to the Democrat and Republican nominees placing other national party nominees at an unfair disadvantage. According to the complaint, other candidates are excluded by imposing arbitrary polling criteria, and the possibility of additional nationally-televised debates being sponsored by anyone other than the CPD is eliminated by agreements among the CPD and the two major party nominees forbidding participation in other debates or joint appearances.
“For over 25 years, the Commission on Presidential Debates has used millions of dollars in tax-deductible contributions from big corporations to rig the rules, keeping Americans from hearing from anyone but the two old parties in debates,” said Nicholas Sarwark, chairman of the National Libertarian Committee.
“If two teams got together to make sure that only they could make it to the Super Bowl, people would be outraged at the cheating. With this lawsuit, we’re standing up for the right of Americans to have fair debates between all candidates who are on enough ballots to become president,” Mr. Sarwark noted.
The proposed remedy is that the debates include all candidates who are legally qualified to serve and whose names appear on enough states’ ballots to potentially secure a majority in the Electoral College. In 2012, that threshold would have allowed participation, in addition to President Obama and Mitt Romney, by the Libertarian nominee Gov. Gary Johnson and the Green Party’s Jill Stein, as well as the two parties’ vice-presidential nominees.
The change in admissions standards that the CPD may approve will have little or no effect on real-life results, which, for the past 23 years, have been that only two contestants, one Democrat and one Republican, are admitted to the debate stage.
…Merely changing the polling threshold …from 15% to 10% will not address the structural impediment to a truly fair and competitive presidential election.
…The CPD [examines] polls taken only two weeks before the first presidential debate; that is, just six or seven weeks before the election itself…[making] it impossible for an independent candidate to earn the media coverage necessary to build name recognition, which is the prerequisite for polling at any level.
… By contrast, if an independent candidate were known to be in the debates six months before the elections, that candidate would garner significant media coverage and would be in a position to compete on a more level playing field with the Republican and Democratic candidates.
A study by Cliff Young of IPSOS found that, in order to achieve [10%] support in a presidential poll, the candidate would have to achieve name recognition with at least [73%] of voters.
IPSOS also found that, in a three-way race, if a candidate is actually polling at 10% or above, there is a 50% chance that survey results will show that candidate polling below 10%...
No candidate for president who has not participated in major-party primaries and debates has polled at 10% six weeks before the election in more than a half-century. (Ross Perot in September 1992 was polling at 8%; John Anderson, a Change the Rule signer, exceeded the threshold in 1980 but he ran in Republican primaries.)
…The new criterion will …let the CPD, dominated as it is by [Democrats and Repubilcans,] accomplish the result of keeping out an independent by different means than a literal, flat-out ban.
…10% in September is worse than the status quo because it gives the false impression that the CPD is responding to the demands of the public for change. It does no such thing.
“Using unreliable, late-in-the-election-cycle polls to determine who’s in or out of presidential debates is just another barrier that Democrats and Republicans are using to protect themselves from competition,” said Nicholas Sarwark, Chair of the Libertarian Party. “But it’s good the CPD is feeling pressure, as it should. Legitimate polls show, over and over, that Americans are fed up with the two old parties and want more choices.”