A Victory in the Battle to Open Presidential Elections

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A Victory in the Battle to Open Presidential Elections
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Our efforts to open up presidential elections to an electable independent candidate began six years ago, and it’s been a rough road. It’s no surprise, but neither established political party wants serious competition, and the Democrats and Republicans have set rules to keep challengers out. But we recently achieved a breakthrough, and starting in 2020, elections in America may never be the same.

A U.S. District Court in Washington, D.C., ruled in our favor in a lawsuit against the Federal Election Commission. In a blistering opinion, Judge Tanya Chutkan wrote that the FEC had “acted arbitrarily and capriciously and contrary to law.” It was the first time challengers to the rules of presidential debates have been successful in court.

Debates, we are convinced, are the key to unlocking truly competitive elections. For the past quarter-century, the Commission on Presidential Debates has effectively barred independent and third-party candidates from the stage for the three final debates, and if you are not in the debates, you cannot be elected president. For that reason, strong independent candidates will simply not run for president if they can’t participate in the debates.

Our organization, Level the Playing Field, has been reminding the public that the debate commission, a private nonprofit that the FEC is supposed to oversee, is required to conduct itself in a non-partisan manner. To get the commission to change its rules (or to get rid of it altogether), we first had to sue the FEC. We were joined by the Libertarian and Green parties, and argued that the commission was acting as a partisan, political organization, contrary to the law, and we provided what the judge termed a “mountain of submitted evidence” to back up our charges.

The CPD’s first two co-chairs were the chairs of the two major parties, and the board has been stacked with party stalwarts dedicated to maintaining a duopoly that most voters do not want.

Through deception and obstruction, the CPD has resisted attempts by our group and others to change the rules. Now, with Judge Chutkan’s decision, the CPD’s wall has been breached: 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.

We showed, Judge Chutkan noted, that CPD Co-Chairman Frank Fahrenkopf “donated more than $23,000 between 2008 and 2012 and $35,000 between 2012 and 2014 to the Republican Party” and that Mike McCurry, the former press secretary to President Clinton who stepped down late last year as the other co-chairman of the CPD (but who remains on the board), “donated almost $85,000 to Democrats between 2008 and 2012.” Other CPD directors made large donations to their respective parties as well.

We asked two recognized experts – Clifford Young of Ipsos, the international research firm, and Douglas Schoen, a veteran campaign consultant and pollster – to calculate the daunting odds and high costs for an independent to gain enough name recognition to meet the CPD’s threshold of 15 percent in polls taken a few weeks before the first debate. They found that that no one but a billionaire spending his or her own money in the hundreds of millions of dollars could meet such a standard. We argued that the barrier is too high and that the polling occurred too late in the election cycle. We also presented the CPD with alternatives for choosing the third debater, including a national online primary.

We were ignored. After the decision, McCurry was quoted by VICE News as saying, “It’s also hard to get to 15 percent if you don’t know where Aleppo is,” a snide reference to Libertarian Party nominee Gary Johnson’s inability to recognize the Syrian city.

McCurry’s wisecrack summarizes the condescending attitude of the CPD toward critics who want to open the stage to a third debater. Judge Chutkan’s decision, however, should end the sneering.

Level the Playing Field does not support any particular independent candidate. We don’t have a political agenda. We merely want to broaden the choices for Americans as a way of strengthening our democracy. The 2016 campaign ended with two candidates whose unfavorable ratings were off the charts. That should never happen again. This country has dozens of citizens who would make excellent presidents, but the two-party system keeps them from running by barring them from the debate stage. That will end.

Peter Ackerman, founder of Level the Playing Field, is a businessman with a PhD from the Fletcher School of Law and Diplomacy at Tufts University. A former chairman of Freedom House, he is a member of the executive committee of the board of the Atlantic Council.

Alexandra Shapiro is a New York attorney who represents Level the Playing Field.

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