Efforts to Open the Debates to Third Party and Indep. Candidates

Over the years legal and legislative efforts to open the general election debates to third party and independent candidates have not succeeded.

Litigation has focused on debate criteria and on the makeup and funding of the Commission on Presidential Debates.  The Federal Election Commission has been targeted for failing to take action; a number of these cases began as administrative complaints filed with the FEC. 

The Federal Election Campaign Act states that "[i]t is unlawful...for any corporation whatever...to make a contribution or expenditure in connection with any election" for the office of President, Vice-President, Senator or Member of Congress. "[2 U.S.C sec. 441b(a)]  The CPD-sponsored debates involve corporate contributions.  FECA does allow an exemption for "nonpartisan activity designed to encourage individuals to vote or to register to vote." [2 U.S.C sec. 431(9)(B)(ii)]  However, the CPD is a bipartisan rather than a nonpartisan entity.  Thus, one major thrust of lawsuits on the presidential debates is to charge that the FEC's debate regulations [C.F.R. secs. 110.13 and 114.4(f)] are illegal (in excess of the statutory authority granted the FEC under the Federal Election Campaign Act).

2016
In 2014 and 2015, Level the Playing Field, the successor to Americans Elect, filed two administrative complaints and a petition for rulemaking with the FEC charging the FEC's 15-percent polling threshhold violates the law.  Level the Playing Field proposed a new rule based on a signature drive competition among third party and independent candidates; those candidates on the ballot in enough states to garner 270 electoral votes, would, as they sought to gain ballot access in the first part of 2016, compete to obtain the most signatures.  (Level the Playing Field estimated that number at four million).  This proposed rule would have ensured the presence of one third party or independent candidate on the stage.  Unlike many efforts to challenge the CPD, Level the Playing Field's "Change the Rule" campaign did gain the backing of a number of high profile individuals including Sen. Angus King (I-VT) and a number of former governors, Senators and congressmen (+).

Following up on the FEC's lack of action, in 2015 Level the Playing Field, Peter Ackerman and the Libertarian and Green parties filed a lawsuit against the FEC in the U.S. District Court for the District of Columbia (1, 2).  The lawsuit described the CPD as "an organization the two parties created for the express purpose of keeping third-party and independent candidates out of debates" and sought action from the FEC, "a 'bipartisan' agency run by members of the two major parties, which refuses to carry out its statutory mandate to enforce the federal election laws that the CPD is blatantly violating."  After a number of legal twists and turns on Mar. 31, 2019 the U.S. District Court for the District of Columbia ruled generally in favor of the FEC.  [See FEC: Level the Playing Field, et al. v. FEC]

Also on the legal front, Gary Johnson's Our America Initiative organized a "Coalition for Fair Debates" (+) and led work on a lawsuit filed Sept. 29, 2015 against the CPD challenging the exclusion of qualified candidates violates federal anti-trust laws as well as the First Amendment (+).

Also of note, the Annenberg Working Group on Presidential Campaign Debate Reform considered a modest recommendation on third party participation, but could not reach a consensus for its June 2015 report.

2012
In 2012 the campaign of Libertarian nominee Gary Johnson decided to have another go at it, employing a new argument in a Sept. 21 lawsuit charging the CPD with violating the Sherman Anti-Trust Act of 1890 (+).  The Johnson campaign's effort failed.  Green candidate Jill Stein weighed in with an Oct. 22 lawsuit charging that the CPD and others had "deprived her of her constitutional rights to due process, equal protection, and free speech, as well as her statutorily protected civil rights" (+). That too failed. 


2008
Given the lack of success of the various legal efforts it is not surprising that there was no noticeable legal activity in the 2008.

2004
In 2004, Open Debates, a 501(c)(3) nonprofit "committed to reforming the presidential debate process," established a Citizens Debate Commission in an effort to replace the CPD.  The Citizens Debate Commission proposed five presidential debates and one vice presidential debate, what it termed "real and transparent" presidential debates as opposed to "stilted and deceptive events proposed by the bipartisan Commission on Presidential Debates (CPD)."  (August 16, 2004 letter)  Open Debates took several other actions.  On Feb. 14, 2004 Open Debates filed a complaint with the FEC alleging "that presidential debates sponsored by the CPD are controlled by the major parties in violation of FEC debate regulations."  The Open Debates complaint sought to have "the FEC prohibit the CPD from staging future corporate-sponsored presidential debates."  And on April 2004 Open Debates filed a complaint with the IRS in an attempt to revoke the tax status of the CPD.

In Nov. 2001, Rep. Jesse Jackson Jr. (D-IL) introduced a resolution in Congress that sought to lower the threshhold for participation to 5-percent (H.C.R. 263) but it did not go anywhere. 

2000
Four lawsuits were filed challenging debate regulations: 
[see FEC Annual Report, pages 18-19]
Lawsuit filed by the Nader 2000 Campaign et al. against the FEC
Becker v. FEC - filed June 19, 2000 in the U.S. District Court of the District of Massachusetts; oral arguments heard Aug. 2000 in Boston by U.S. District Court Judge Patti B. Saris; on Sept. 1, 2000 the court ruled Nader and the plaintiffs had standing but denied their request for a preliminary injunction.  Nader's lawyers filed a notice of appeal on Sept. 15, 2000, and the U.S. Court of Appeals for the First Circuit granted the motion on Sept. 26, 2000.  An expedited hearing occurred before a three-judge panel on Oct. 5, 2000; the court dismissed Nader's appeal on Nov. 1, 2000.  On Jan. 31, 2001 Nader filed a petition for a writ of certiorari with the U.S. Supreme Court; the court declined to take up the case.  Cert Denied

Lawsuit filed by Committee for a Unified Independent Party et al. against the FEC 
Filed May 2000 in the U.S. District Court of the Southern District of New York; amended June 21, 2000.  The judge in the case was Barbara S. Jones.  CUIP submitted papers and request for oral argument on Aug. 15, 2000; Magistrate Judge James C. Francis, IV heard oral argument on Oct. 24, 2000 and issued a report and recommendation on Dec. 11, 2000. 

Lawsuit filed by the Natural Law Party and Dr. John Hagelin against the FEC 
This suit began on April 24, 2000 as an administrative complaint filed with the FEC (designated MUR 5004); the FEC dismissed the complaint in July 2000.  The Natural Law Party et el. filed the suit on Sept. 6, 2000 in the U.S. District Court of the District of Columbia, where it was assigned to Judge Ellen Segal Huvelle.  On Nov. 21, 2000 the two sides agreed to dismiss the case. 
Full Text of Lawsuit

Lawsuit filed by Buchanan Reform and the Reform Party against the FEC 
This suit began on March 20, 2000 as an administrative complaint filed with the FEC by Buchanan Reform and the Reform Party against the CPD (designated MUR 4987).  When the FEC refused to act on the complaint, the Buchanan campaign took the matter to court; the suit was filed July 25, 2000 in the U.S. District Court of the District of Columbia.  A hearing occurred on Sept. 6, 2000 before Judge Richard W. Roberts; on Sept. 15, 2000 the judge ruled that he would not instruct the FEC to include Buchanan in the debates.  The campaign quickly appealed to the U.S. Court of Appeals for the D.C. Circuit, seeking expedited consideration on the point that Buchanan, as a federally funded candidate, had a right to be in the debates.  The action came to an end on Nov. 30, 2000, when Buchanan et al. moved to dismiss the appeal.

Petition for Rulemaking on Presidential Debates 
On May 25, 199 Mary Clare Wohlford, William T. Wohlford and Martin T. Mortimer filed a petition with the Federal Election Commission to amend its rules so that the FEC, not a debate staging organization, would determine the criteria for inclusion in debates.  The FEC took public comment from June 10 to July 26, 1999 and received approximately 1,300 comments that filled four 2" binders.  However, on Feb. 17, 2000, the FEC voted to "hold the Petition for Rulemaking in abeyance until after the 2000 general election."  This petition eventually met a bureaucratic death in 2009.  Federal Register
 
Legislative proposals on presidential debates:
106th Congress 
H.R. 2461 (Traficant) Seeks to force debate staging organizations to include candidates who qualify for the ballot in states with at least 270 electoral votes, using the tax code. [identical to H.R. 4310, the bill Traficant introduced in the 105th]. 
H.R. 2027 (Paul) Seeks to broaden debates so they would include candidates who qualify for the ballot in at least 40 states, using campaign financing as a lever. [identical to H.R. 2478, the bill Paul introduced in the 105th]. 
H.R. 178 (McCollum) Would establish a three-member Presidential Debate Commission, members appointed by the President. 
also 
H.Con.Res. 373 (Jackson) Would establish as the sense of Congress that presidential candidates should be allowed to participate in debates if they achieve support of 5 percent of eligible voters in national polls or if the majority of those polled support a candidate's participation in the debates.
105th Congress 
H.R. 4310 (Traficant) Sought to force debate staging organizations to include candidates who qualify for the ballot in states with at least 270 electoral votes, using the tax code. 
H.R. 2478 (Paul) Sought to broaden debates so they would include candidates who qualify for the ballot in at least 40 states, using campaign financing as a lever.


1996
In 1996 the CPD determined that Ross Perot and other third party candidates did not meet the realistic chance standard. Perot filed suit charging that, "The decision-making of the CPD is not independent, but is heavily influenced, if not totally dictated by the political interests and calculations of major party candidates and major party national committees."  The suit charged the CPD "automatically certified the Democratic and Republican nominees and then forced all others to run a gauntlet of subjective and arbitrary criteria."  For 1996 CPD criteria stated that a candidate "must have a realistic (i.e. more than theoretical) chance of being elected the next President of the United States."  To determine whether a candidate met this realistic chance standard, the CPD used a set of "objective" criteria.  Critics challenged the standard and the commission's objectivity. 
 
 - ema