Court Rejects Push to Have Debates Welcome 3rd-Party Candidates

Former New York City Mayor Mike Bloomberg, Sen. Elizabeth Warren, D-Mass., and Sen. Bernie Sanders, I-Vt., participate in a Democratic presidential primary debate on Feb. 19 in Las Vegas, hosted by NBC News and MSNBC. (AP Photo/John Locher)

WASHINGTON (CN) — Declining to futz with rules that determine who makes the coveted presidential debate stage, the D.C. Circuit sank a challenge Friday from the Libertarian and Green parties.

Led by the nonprofit group Level the Playing Field, the parties had sued in Washington after the Federal Election Commission rejected their objections to the criteria that the Commission on Presidential Debates uses to admit candidates in the televised presidential debates it has hosted for the last 30 years.

Among other parameters, the debate commission has a 15% polling threshold the debate commission that is difficult for third-party candidates to reach.

But U.S. Circuit Judge Raymond Randolph, writing for a three-judge panel this morning, said selectivity does not run afoul of FEC rules.

“There is no legal requirement that the commission make it easier for independent candidates to run for president of the United States,” the 13-page opinion states.

A private nonprofit company with an independent board of directors, the aptly named Commission on Presidential Debates does not endorse candidates nor does it receive funding from the federal government or any political parties. Subject to rules put forward by the FEC, the debate commission sets its own standards for who can make the stage.

Those FEC rules prohibit the group that hosts the debates from endorsing a specific candidate or party and requires it to select participants based on “pre-established objective criteria.”

In turn, the debate commission invites only those candidates who are on the ballot in enough states to be mathematically capable of winning a majority of electoral college votes and are polling at 15% or more in the average of five national opinion polls. 

Level the Playing Field and a Washington, D.C., voter were the first to bring their administrative challenge over the rules, filing a September 2014 with the FEC that said the debate commission is not actually nonpartisan and that its reliance on the 15% polling unfairly excludes third-party candidates. 

The Green and Libertarian parties joined the complaint the next year. Together they asked the FEC to revise the rules so that public opinion polling could not be used in debate-participation criteria.

Upon losing that administrative challenge, the groups turned to federal court where they faced some initial success. U.S. District Judge Tanya Chutkan sent the complaints back to the FEC for further consideration in 2017, only to rule against them last year, after the FEC stuck by its original decision.

Affirming Chutkan’s summary judgment decision Friday, Randolph wrote the FEC carefully considered evidence the groups presented to show the debate commission is not politically neutral, including a past co-chair’s statement that third party candidates should not make the debate stage. The FEC was right to consider the statements in context and note the reforms the debate commission has undertaken since its inception, Randolph wrote.

A George H. W. Bush appointee, Randolph noted the debate commission has changed its rules over time, including implementing new criteria after Ross Perot was left off the debate stage in 1996, when he ran one of the most successful third-party bids for the White House in U.S. history. Randolph also pointed out the debate commission reviews its operations after every election.

In their brief to the circuit, the groups argued that the debate commission is “not remotely non-partisan,” but instead is led by political loyalists who advance the major parties’ interest in keeping third-parties on the fringes. 

“Its leadership has always consisted of Republican and Democratic insiders — party chairs, former elected officials, top aides, party donors and lobbyists,” the brief states. “These staunch partisans endorse Republican and Democratic candidates, lavish them with high-dollar contributions, oversee even larger contributions as paid-for-hire lobbyists and accept undisclosed contributions from corporations that buy influence with the major parties using the CPD as a conduit.”

Randolph meanwhile concluded that the polling threshold is not “subjective” simply because it is hard for the third-parties to reach.

The groups were represented by Alexandra Shapiro with the firm Shapiro Arato Bach.

Responding to the ruling, the Green Party called the 15% polling requirement “exclusionary” and unnecessary to determine which candidates have enough national presence to merit a spot on the debate stage.

“It is immensely challenging and costly for a presidential candidate, especially one running as an independent or in in an alternative party to attain ballot access in enough states to have a chance of winning the electoral college (another institution that undermines democracy),” the Green Party said in a statement (parentheses in original). “That achievement alone should be enough to grant access to the debate stage.”

Shapiro did not return a request for comment on the decision, nor did the Libertarian Party. Level the Playing field could not be reached for comment.

A spokesman for the FEC declined to comment, citing agency practice of not commenting on litigation.

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