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UPDATE: FEC Says Mountain of Evidence Against Debate Commission Not Enough

In 2014 and 2015, Level the Playing Field (LPF) filed two complaints against the Commission on Presidential Debates (CPD) with the Federal Election Commission (FEC). Simply put, LPF argued that (1) the CPD was not a nonpartisan organization, as its tax-deductible nonprofit status requires, and (2) the CPD’s rule requiring candidates to get 15% in the polls in order to qualify for the presidential debates was unfair.

The FEC dismissed both complaints without any real consideration.

In January, LPF filed a complaint in federal court to challenge the FEC’s administrative decision as being arbitrary, capricious, and contrary to law.

In February, a federal judge agreed with LPF, issuing a blistering opinion against the FEC. As part of that opinion, Judge Chutkan ordered the FEC to reconsider a mountain of evidence in support of LPF’s argument against the partisan nature of the CPD and unfairness of the 15% rule.

In March, the FEC chose not to appeal the decision. Instead, they complied with the judge’s order and re-issued an opinion that “considered” the evidence.

The FEC's opinion rationalizes clearly partisan activities, statements, and even donations made by CPD members and chairs.

The decision below addresses many of the arguments and pages of evidence offered by Level the Playing Field’s complaint. However, it offers little in the way of a rationale for why no candidate other than a Republican or Democrat has qualified for the debates in 25 years, especially considering 76% of Americans wanted to hear a third voice in 2016 .

Notably, the FEC is a commission composed of six appointed members — three Republicans and three Democrats — who have been unable to make important decisions on account of their own hyper-partisan deadlock. Decisions by the FEC require four members of the commission to agree with each other.

So, when asked to reconsider its opinion on whether the composition and rule-making of the CPD were unfair to everyone except Republicans and Democrats, the decision seemed to come easy.

The FEC’s opinion rationalizes partisan activities, statements, and even donations made by CPD members and chairs. For example, the decision shrugs off public statements by CPD members that express clear opposition to the inclusion of independents and/or third parties in the debates by rationalizing that, “there is no indication that the statements from officers and directors were made in their official capacity as representatives of CPD.”

The FEC also points to an interesting argument made by the CPD that having more inclusive debates standards would, “creat[e] an unacceptable risk that leading candidates with the highest levels of public support would refuse to participate.”

In other words, “we can’t control the parties because the parties control us.”

The plaintiffs have 60 days to respond to the decision.

Plaintiff LPF has been joined in the case by the Libertarian Party and the Green Party. Amicus briefs in support of the plaintiffs have been filed by the Independent Voter Project (IVP) and FairVote, two organizations that promote nonpartisan election reform.

IVP is a co-publisher of IVN.us.