Third Parties See Chance for Spot in Presidential Debates
Except for 2008, the Commission on Presidential Debates has been sued in every presidential cycle since it was formed in 1987. Those court challenges, usually centering on opening the process to more candidates, have never gotten anywhere — until now.
Those frustrated with the two-party domination of America’s election process finally have something to cheer about, thanks to a federal judge’s ruling against the Federal Election Commission. Reformers hope this decision could result in the next presidential debate stage being more crowded – and more independent – than it has been since the 1990s.
The pathway to get there, however, is not a straight one, and not all independent activists yearning to break the Democratic-Republican duopoly are certain that litigation is the best path.
But thanks to U.S. District Court Judge Tanya Chutkan, the legal option is now in play. Her ruling states that by ignoring a complaint filed by Level the Playing Field, a nonprofit group trying to open up the presidential debates to a third-party candidate, the FEC has been active in ways that benefit the Republican and Democratic parties. (The plaintiffs in the case also include the Libertarian National Committee and the Green Party of the United States.)
Their complaint zeroes in on the presidential debate commission, alleging that the rules of the road adopted by the self-described nonpartisan organization eliminate any realistic possibility of allowing a third-party contender onto the debate stage. The lawsuit alleges that in so doing, the nonprofit debate sponsor has violated federal election laws; the suit asks for the FEC to intervene, a request that has so far been ignored.
Although neither the commission nor the FEC responded to a request for comment on the judge’s ruling, commission officials have long insisted that they are not trying to hinder viable candidates from participating in the process, but that it makes sense to afford a platform to presidential candidates with a realistic chance of being elected. The debate commission is neither congressionally mandated nor constitutionally protected, and some commissioners have pointed out that other organizations can sponsor debates if they choose.
But Level the Playing Field maintains that the 15 percent support threshold needed for participation under the commission’s rules effectively bars a third-party or independent candidate. The group’s legal complaint argues that an independent candidate would need to achieve a minimum of 60 percent national name recognition in order to hit the 15 percent polling marker. The plaintiffs contend that the commission rule is unfeasible in terms of time and money – a third-party candidate would have to rally massive support by the time the general election debates begin, no easy task since such candidates often don't possess the finances and sheer manpower of their major party rivals.
It all comes down to the limited tools with which independents are forced to work. Independent candidates generally cannot get on the ballot for closed primaries. Additionally, they are allowed to accept no more than $5,200 from any individual donor for the two years leading up to the election, while their Republican and Democratic counterparts can receive up to $537,000 in “soft money” donations under FEC rules. Under these conditions, reaching the minimum support threshold is all but impossible.
Alexandra Shapiro, the New York-based lawyer for the plaintiffs, said the lawsuit is specifically contesting the 15 percent rule.
“The ball is now in the FEC’s court,” Shapiro said, noting that the commission has been given 30 days as of Feb. 1 to reconsider or further explain its decision to dismiss LPF’s complaint. It has likewise been given 60 days to reconsider the petition for rulemaking to change the debate regulations as the plaintiffs have requested.
Their hope is that the lawsuit will ultimately require the FEC to enforce its own election laws on the CPD. The regulations would then be modified to “expressly prohibit using a polling threshold as the exclusive way to get into the debates,” said Shapiro.
The complaint also highlights another alleged sign of favoritism toward a two-party system. Key members of the commission have repeatedly donated to the Republican and Democratic national committees, and poured thousands of dollars into the respective parties' presidential campaign coffers. These donations, the complaint argues, show that the CPD is violating its core tenet of nonpartisanship.
Shapiro also stressed the partisan backgrounds of founding chairmen Paul Kirk and Frank Fahrenkopf, who are former heads of the DNC and RNC, respectively. She cited statements made at the group’s 1987 inception that it was bipartisan and would not look favorably on including third-party candidates in debates, as reported by The New York Times.
“The debates should be run by a group that is going to operate the process in a more nonpartisan manner,” Shapiro added. “If the rules were changed and there was a legitimate way to get a third-party candidate into the debates, we could see a whole new process in the 2020 presidential election.”
Just how that process may take shape could vary greatly. Level the Playing Field envisions choosing a third-party candidate from a signature-gathering competition or from a nationwide primary conducted exclusively online.
“The key here is that we have a broken political system,” says former under secretary of state James Glassman. “But how do you fix it? There’s talk of changing campaign financing, gerrymandering, but [LPF] has realized there’s one fairly small way to change it all: simply change the debate rules.”
Glassman, who worked in the George W. Bush administration and is now advising Peter Ackerman, the force behind Level the Playing Field, also asserts that it’s backwards to use polling to determine access to the political process. “No state uses polling as a way for people to gain access to anything on the ballot,” he said. “Whether it’s for the mayor, governor, or so on, it’s signature gathering.”
Another alternative floated by reformers is a nationwide online primary, a election process Glassman believes would “really capture the imagination of the American public.”
This method would also set a minimum threshold: “Maybe 2 million votes, 5 million – we would discuss with the commission on what would qualify,” Glassman said. “By having a national primary, we would be inviting all the states to participate, not just places like Iowa and New Hampshire. Everyone would have an equal vote.”
Even those who share Ackerman’s goals wonder if litigation is the most effective way of challenging the status quo. Terry Michael, the former senior media adviser for Libertarian Gary Johnson’s presidential campaign, believes that discussion, as opposed to a lawsuit, is the best way for alternative parties to move forward.
Michael said his advice for the Johnson campaign during the 2016 election was to not pursue the matter in the courts. Rather, he pushed for a discussion with the commission in the hopes that the organization would change its regulations in time for Johnson to make the general election debates. Michael said the CPD was “obstinate” in its defense of the 15 percent rule, but he wonders if the commissioners would have been more open to negotiation if they hadn’t been sued.
Michael, who served as the DNC’s press secretary when the commission was first established, also doubts whether the FEC has the jurisdiction to dictate conditions to the debate commission, which is not a government entity.
But the official stance of the Libertarian National Committee, another plaintiff in the case, is decidedly more optimistic. Nicholas Sarwark, chairman of the LNC, noted that the FEC has control over debate organizations through a federal statute; that statue requires debate sponsors to act in a nonpartisan manner. If the CPD is shown to be in violation but remains bipartisan, Sarwark said it would have to “report as a campaign organization and not take corporate funds,” thereby losing its status as a 501(c)(3) nonprofit.
Sarwark admits there is nothing inherently wrong with an organization wanting only Republicans and Democrats on their stage, but the debate sponsors must drop the nonpartisan label.
The Libertarian committee chairman is uninterested in talks with the CPD: “Our party’s stance is that you don’t really negotiate with terrorists. They stonewall us every time and are bound and determined to exclude us from their ‘campaign commercial.’”
Sarwark doesn’t believe the CPD would negotiate in good faith anyway, saying the commission members “weren’t interested in talking about meaningful change. If anything, it would be more along the lines of a delaying tactic to blow us off for the next few years. As a plaintiff, you shouldn’t bring a suit and then negotiate against yourself.”
As for the Libertarian Party’s path to the debate stage, it is focusing on traditional ballot access. If a candidate has sufficient access and a pathway to win the Electoral College, he or she should be allowed on the debate stage, Sarwark said.
And if there must be a polling standard in addition to ballot access, the Libertarian Party believes pollsters should reframe their line of questioning. For example, voters are typically asked, “Would you vote for this candidate if the election was held today?” Instead, Sarwark believes voters should be asked whether they would like to hear from multiple candidates at the debates. If polls were framed this way, the numbers would likely shift in third-party candidates’ favor.
The Green Party points to another obstacle: the difficulty in even getting its candidates on the ballot. “It’s an effort that takes so much time and money that it handicaps alternative party candidates,” said party spokesman Scott McLarty.
Les Francis, a former executive director of the DNC and deputy White House chief of staff under President Carter, tried to nudge the commission in an entirely different direction during the 2016 election.
“I tried, obviously without success, in the lead-up to the 2016 elections and through back channels, to offer an alternative to both LPF and the CPD, whereby there might be a ‘playoff’-type system, something similar to NCAA basketball,” Francis told RCP.
“In my scenario, some number of ‘independent’ or minor party candidates – their viability tested by polling both name recognition but also by more probing questions – would square off in debates either before or just after the nominating conventions. The top two or three finishers, according to an average in well-regarded national polls, would participate in the first debate with the major party nominees, and then if one or more hit a threshold of say, 10 percent, would go to the second debate. Another round of polling could determine the makeup of round three.”
Francis said these negotiations were not possible, however, as a negative campaign against the debate commission had already “poisoned the well regarding any further, productive conversations.”
There was, however, one aspect to the case all groups agreed on: No matter the pathway to get on the debate stage, a third-party candidate is a needed antidote after the Clinton and Trump campaigns.
“There is no better argument for including candidates like Jill Stein than from what we saw at the debates last year,” McLarty asserted.
James Glassman concurs. “When you get down to it, we have a broken system that is getting more broken by the minute. It’s because when we only have two parties, each one goes into its own corner,” he said. “You frequently end up with extremism, while the vast majority of Americans are in the middle. Even if the independent choice doesn’t win, that person would have a big impact on pulling the other candidates to the middle to create a more constructive election.”