On January 5, the U.S. District Court in Washington, D.C. heard oral argument in the case, Level the Playing Field, et. al. v. FEC. Level the Playing Field filed a lawsuit challenging the nonprofit status of the Commission on Presidential Debates on the basis that it is not nonpartisan nor does it use “objective criteria” to determine entry into presidential debates.
Below are highlights from the oral argument:
Alexandra Shapiro, lead attorney for LPF: [T]he two major parties failed the American people miserably in 2016. As an increasingly polarized primary electorate, which represents just a small fraction of eligible U.S. voters, has become more and more polarized and more and more likely to produce candidates that most Americans view unfavorably.
Shapiro: [T]he two major parties have rigged the system to maintain their own power and deprive American citizens of their choices. They’ve done that in a number of ways, including partisan gerrymandering, voter suppression laws, rules to prevent independence from appearing on a ballot if they won in a major party primary first.
Shapiro: [I]n order to ensure that the debates are truly nonpartisan in promoting these educational purposes that I just described, the organizations have to use, quote, preestablished objective criteria to determine who may participate…
…[T]he Court held that the objectivity requirement precludes debate sponsors from selecting a level of support if they use a polling criteria that is so high that only the Democratic and Republican nominees could reasonably achieve it.
Shapiro: But most importantly for purposes of this case we demonstrated that, including very recently many of the board members have contributed heavily to the two major parties and their candidates. They have raised funds for them. The two chairmen are lobbyists who have been funneling money to Democratic and Republican politicians for years. And in particular that a number of the members have actually contributed money in the maximum possible to candidates running for the 2016 — for the presidency in connection with the 2016 election.
Shapiro Citing Evidence: [O]n average an independent candidate must achieve a minimum of 60 percent name recognition and more likely closer to 80 to have a [chance at] polling of 15 percent. And whereas people who compete in the Democrat and Republican primaries can start out with low name recognition and build their name recognition easily through the primary process because of all the media attention that’s paid to candidates who run in the two parties. Independents and third parties don’t have that same opportunity.
Shapiro Citing Evidence: Assuming you need to get to at least 60 percent name recognition … an independent would likely need to raise and spend at least around $265 million. And it’s obvious, I think, that there’s no way that anyone who’s not a self-funded billionaire would have the ability to raise anything close to these funds, especially because of the catch-22 that the CPD’s rule has created in that … if you go around and try to raise money, the first question potential donors are going to ask is … does this person have a serious chance of being considered, of getting elected. And if they can’t get into the debates, then, of course, they don’t.
Court: Well, in the voter disposition, the FEC appears to have at least acknowledged and addressed the arguments to — for raised in the petition. And why isn’t that enough me to grant a deference as I’m required to?
Shapiro: Well, Your Honor, I don’t really FEC addressed it at all, all the evidence I was … just talking about. There’s a footnote —
Court: Well, you’re right. They don’t really address, you know, they address certain pieces of evidence, but not the large majority of it.
Crucial Back and Forth between FEC and the Court
Court: Let me ask you, let me shift for a minute. It’s not clear from, again, and I turn back to your factual and legal analysis. It’s not clear from those analyses or from your briefs, frankly, what standard the FEC used to decide that the CPD didn’t support or oppose political parties or candidates. Can you explain what standard you actually used?
FEC: The standard the commission applied in this case, like it applied in the Buchanan matter is the regulatory endorsed support and opposed standard.
Court: I’m sorry?
FEC: The FEC applied the endorsed support and opposed standard that’s in the regulation 110.13A. In prior matters, there was also an issue raised in the administrative complaints about whether or not the party committees controlled CPD. And the prior administrative matters and in Buchanan that was discussed.
As the District Court noted in Buchanan, however, that was not the standard the FEC applied in that case, and it isn’t the standard here.
Court: Please continue. I have some more questions, but I’m going to wait until you get to a point in your argument where I think it would be relevant to jump in.
FEC: In this case, the FEC is entitled to great deference on its policy judgments about how to interpret the Act.
Court: But that’s not in dispute. I have to give the agency’s decision deference, but if the agency doesn’t articulate any analysis in dismissing the complaints, why should I grant the agency deference? I’m finding it very difficult to determine whether there’s any — what it seems to me that the FEC has done in its analysis is simply say more of the same, Buchanan, more of the same, Buchanan. I mean, Buchanan was a particular case that dealt with particular facts. And I don’t think, frankly, it provides you with everything you think it does. And I strain in my reading of the analysis to find your articulation of what fact criteria you used, what analysis you used in coming to your conclusions. The conclusions are in there. But I’m having a hard time finding the analysis. And without such analysis, how can I give the decision the deference I’m supposed to? How can I determine if it’s reasonable?
FEC: I believe you’re questioning the brevity of the commission’s effectual legal analysis. And it’s not surprising that they are relatively straightforward and short in this case. The commission was following its established precedent.
Court: Well, that’s the problem. The commission just seems to be saying we get to do what we get to do because we’ve always gotten to do it, and Buchanan says we can’t, which it doesn’t. And that’s my problem, it’s not the straightforwardness of the analysis that I’m having trouble with. It is simply the conclusory nature which simply says we always do this, this is what we get to do, and this is what we’re going to continue doing.