FEC Owes Closer Look to Televised Debate Policy

     (CN) – A Socialist Party politician can fight the selection criteria used to exclude him from televised debates in Ohio, a federal judge ruled.
     The 18-page decision says that the Federal Elections Commission failed to properly consider the challenge of Dan La Botz the first time around, so it must do so again on remand.
     La Botz filed a complaint with the FEC after the Ohio News Organization (ONO) scheduled a series of debates for October 2010 without consulting him or allowing him to participate.
     In September 2010, the FEC found that participant selection criteria for the Ohio debates fell within its guidelines.
     The FEC’s ensuing report cited objective factors that the news organization had considered, including the “percentage of votes by a candidate received in a previous election; the level of campaign activity by the candidate; his or her fundraising ability and/or standing in the polls; and eligibility for ballot access.”
     La Botz then sued the FEC in Washington, and U.S. District Court Judge Rudolph Contreras found Wednesday that the FEC proceedings were insufficient.
     Though the FEC argued that La Botz lacked standing since the debates were long gone, and the election had passed, Contreras said his case could “curtail ONO’s alleged bias and decrease the probability that he will be unfairly excluded from any future debates,” the court summarized.
     Contreras agreed and then proceeded to the merits, which he also found to favor La Botz.
     “The FEC argues that it dismissed La Botz’s administrative complaint only after determining that the ONO employed pre-established, objective criteria to select the candidates who would be invited to the debate,” the decision states.
     But La Botz said that ONO never documented this criteria, which he says was designed for a two-party system.
     Contreras noted that the FEC’s brief report that dispatched La Botz’s complaint made just one mention of the matter with the “sentence: ‘it appears that [ONO’s] debate selection criteria were pre-existing and objective … and consistent with a number of different criteria the commission has previously found to have been acceptably ‘objective.’
     “The court is mindful that the agency is not required to provide an elaborate explanation of its reasoning … [b]ut here, the FEC’s one-sentence analysis threatens to ‘cross the line from the tolerably terse to the intolerably mute,'” Contreras wrote.
     He added that “the FEC appears to have based its decision on an affidavit submitted by Benjamin Marrison, an editor of the Columbus Dispatch (and a member of the ONO consortium), which states:
     ‘[ONO] pre-established a number of criteria for selecting the candidates to participate in the debates … [ONO’s] pre-selected criteria first ensured the eligibility of the candidates and then pared down the field of candidates to the two frontrunners based upon indicators of electoral support.'”
     But this affidavit does not show that Marrison “has first-hand knowledge of the assertions or is otherwise competent to testify to such,” as required by the basic threshold for witness testimony, Contreras found.
     He also found it unclear whether the FEC considered an email that could show the organization disregarded commission regulations that forbid “major party nomination to be the sole criterion employed to select debate participants.”
     “On September 8, 2010, a member of the ONO consortium wrote: ‘the Ohio News Organization generally follows the structure used by the commission on Presidential Debates, which allows for only the major-party candidates to debate,'” Contreras wrote (emphasis in original).
     Finding that the FEC lacked substantial evidence to support its decision, the judge remanded the case to that body for further proceedings.

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