For the first time, a federal court upheld a challenge to the Commission on Presidential Debates’ rules that require a candidate to have average support of 15 percent in major national polls to qualify for the debates watched by tens of millions of voters. The rule has drawn ire and lawsuits from third-party groups since its implementation in 2000.
While several legal hurdles remain, a judge’s decision Wednesday brings the rules the closest they’ve come to being overturned. That would dramatically affect the 2020 presidential debates and thus, the election itself.
Congress created the Commission on Presidential Debates in 1987 under an agreement by the Republican and Democratic parties to take stewardship over the debates. The group has since organized every presidential debate. But even as a technically private organization, the Commission on Presidential Debates must follow Federal Election Commission (FEC) rules, including maintaining “nonpartisan” status and not endorsing, supporting, or opposing political candidates or political parties.
Level the Playing Field, a nonprofit dedicated to breaking up the two-party system in America, petitioned the FEC in 2014 that the 15 percent threshold violated FEC rules because it’s designed to exclude alternative parties. Level the Playing Field also argued the commission was not a nonpartisan institution because its board of directors regularly gives money to Democrats and Republicans. Being bipartisan isn’t the same as being nonpartisan, the group contends.
Because the FEC is the first arbiter of elections violations, “we have to sue the FEC in order to sue the [commission,]” Level the Playing Field’s lawyer Alexandra Shapiro said. The Commission on Presidential Debates directed VICE News to a lawyer on the case, who did not return a request for comment.
After several years of slow legal maneuvering and the addition of the Green and Libertarian parties to the lawsuit, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued a 28-page ruling Wednesday repeatedly bashing the FEC’s defense of the commission’s rules that “address just two items from [Level the Playing Fields’] mountain of evidence.” She gave the commission 30 days to submit a new defense.
That “mountain” included pointing out that no third-party candidate since the Commission on Presidential Debates’ inception could have qualified under the 15 percent standard, including Ross Perot, and the submission of a new report questioning the use of polling to determine a candidate’s breadth of support. Third-party candidates often have a bigger sampling error, for example.
If the FEC doesn’t comply with the 30-day deadline, or Chutkan finds its new defense unsatisfactory, then Level the Playing Field can directly sue the Commission on Presidential Debates and depose its board members. The nonprofit hopes that will either lead to dismantling the commission or applying enough pressure for changes to its 15 percent threshold.
Current board members with the Commission on Presidential Debates said they felt complaints are just third-party candidates disgruntled by their losses. “It’s also hard to get to 15 percent if you don’t know where Aleppo is,” former co-chair Mike McCurry said, referring to Libertarian Party nominee Gary Johnson’s lack of knowledge about the Syrian city that’s become the center of the country’s humanitarian crisis (“What is Aleppo?” he asked in an interview).
On the day of the first 2016 presidential debate, Johnson and Green Party nominee Jill Stein were polling at 7.4 percent and 2.4 percent, respectively, according to the Real Clear Politics average. Perhaps an opportunity on the debate stage would not have mattered because their messages would not have resonated with viewers, but not having the opportunity at all put them at a tremendous disadvantage going into the final weeks of the campaign. Both candidates poll numbers dwindled toward election day, and they received approximately 5 percent of the vote, combined.
It’s true the the Commission on Presidential Debates is stocked with well-connected Democrats and Republicans, who have deep pockets. McCurry, the former press secretary to President Bill Clinton, donated just under $85,000 to Democrats from 2008 to 2012. And current co-chairman Frank Fahrenkopf, the former chairman of the Republican National Committee, gave $35,000 the the GOP from 2012 to 2014.
While the outcome of the case is anything but certain, Shapiro is optimistic. “There’s plenty of time until 2020,” she said.