FEC Loses Court Battle With Election-Reform Groups

WASHINGTON (CN) – A federal judge upbraided the Federal Election Commission for mishandling complaints by a group that wants to see third-party candidates in the presidential debates.

In their 30-year year history, debates run by the Commission on Presidential Debates have included a third-party candidate exactly once: Ross Perot in 1998. Third-party candidates cannot participate in debates unless they meet a 15 percent polling threshold – as per the Federal Election Campaign Act – but Perot was only invited at the request of Bill Clinton and George H.W. Bush’s presidential campaigns.

Election-reform groups have long been fighting to change that. In 2014, a nonprofit called Level the Playing Field and a voter named Peter Ackerman brought an administrative complaint with the FEC complaining about the staging of the 2012 general election debates. Barred from joining the initial challenge, the Green and Libertarian parties brought their own complaint on the same issue a year later.

But the FEC dismissed both complaints and rejected a rulemaking maneuver that mean polling thresholds could no longer be the sole criterion by which parties access the debates.

After the challengers banded together to sue the commission in Washington, U.S. District Judge Tanya Chutkan granted them summary judgment Wednesday, finding that the commission’s conduct violated the Administrative Procedure Act.

While the plaintiffs submitted more than 100 exhibits with the FEC to make their case, Chutkan said the FEC gave a “threadbare” analysis and failed to articulate what standard it used to determine support or endorsements among members of the Commission on Presidential Debates.

An attorney for the commission was likewise unpersuasive at a hearing last month.

“FEC’s counsel responded simply, though unhelpfully that ‘the FEC applied the endorsed support opposed standard that’s in the regulation,” Judge Chutkan wrote.

Exhibits submitted the plaintiffs included reports on the political contributions, activities of the debate commission’s directors, and an analysis on polling criteria and the financial burden facing prospective third parties as they try to compete and gain name recognition.

The FEC meanwhile purported to have “carefully examined the use of polling thresholds” and ruled them objective. It cited a host of administrative-complaint dismissals and only one prior decision from U.S. District Court, the 2000 decision Buchanan v. FEC.

In Buchanan, a federal judge in Washington determined that complainants had insufficient evidence to allege that the debate commission was controlled by either the Democratic or Republican national committees.

Chutkan said the FEC gave “cursory treatment” of the rule-change petition, and that the agecy’s decisionmaking was “not reasoned.”

“By citing past practice — and the Buchanan decision — as its only response to [Level’s] petition, the FEC appears to have stuck its head in the sand and ignored the evidence that its lack of rulemaking and lack of enforcement may be undermining the stated purpose of its regulations and the Federal Election Campaign Act,” she wrote.

On the matter of polling thresholds, Chutkan complained that her “task is made all the more difficult by the fact that the evidence unaddressed or outright ignored by the FEC is quite substantial.”

A representative at the FEC did not return a call for comment.