The legal battle against the Commission on Presidential Debates (CPD) entered a new chapter this week. Plaintiffs in Level the Playing Field, et. al. v. FEC recently filed a second complaint, arguing that the FEC continues to ignore a "mountain of evidence" against the debate commission, and is acting "arbitrarily and capriciously and contrary to law."
“The FEC has tried to address our arguments through cherry-picking, manipulation, and inaccuracies,” said Peter Ackerman, chairman of Level the Playing Field. “That’s all they can do. There is no objective, nonpartisan reason for the rule that the Commission on Presidential Debates uses to keep an independent off the stage."
Ackerman is referring to the rule that requires candidates to get at least 15 percent in 5 national polls hand-picked by the debate commission. Plaintiffs explained in their original complaint that this is an impossible criterium for independent and third party candidates to reach.
Plaintiffs assert that despite a court order from Federal Judge Tanya S. Chutkan that the FEC explain its actions in dismissing administrative complaints against the debate commission and its rules for debate entry, the federal agency has once again "stuck its head in the sand and ignored the evidence" that the CPD has "rigged the process" for the Republican and Democratic Parties.
“If these rules are not changed, we might as well write into the Constitution that only Republicans and Democrats can be president. But if the debates are opened to an independent presidential candidate, you will see amazing Americans emerging and ultimately winning," said Ackerman.
Key Takeaways from the Supplemental Complaint
"The [FEC's] post-remand decisions do not and cannot explain the overwhelming evidence demonstrating the partisanship of the CPD’s members, including the multitude of endorsements, campaign contributions, and concessions that the CPD is 'not likely to look with favor on including third-party candidates in the debates.'” - Plaintiffs’ Supplemental Complaint, Level the Playing Field, et. al. v. FEC
Plaintiffs argue that much of the evidence of collusion between the debate commission and the national Republican and Democratic Parties to block out independent and third party competition remains unaddressed, and what the FEC does say about it "is laughable."
For instance, the FEC used the example of a Westlaw news database that showed Libertarian presidential candidate Gary Johnson receiving substantial press coverage in 2016.
However, plaintiffs note that “the FEC apparently did not … consider that 'Gary Johnson’ is a common name, because its ‘analysis’ cites articles about dozens of Gary Johnsons who are not the presidential candidate, including a real estate agent, a defensive standout for the San Diego Chargers, and a Hawaiian chef who just opened a new restaurant."
Plaintiffs cite a survey of 46 newspapers over a 9-month period and found that Donald Trump and Hillary Clinton received nonstop coverage (mentioned an average of 34.1 and 27.8 times per week, respectively), while Johnson and Green Party candidate Jill Stein received practically nothing.
Similarly, plaintiffs argue that the FEC's treatment of their experts and their evidence "is equally frivolous."
"While the FEC quibbles with Plaintiffs’ evidence, it offers no justification of its own for a polling criterion so high that, since the CPD’s inception, no independent presidential candidate has satisfied it." - Plaintiffs’ Supplemental Complaint, Level the Playing Field, et. al. v. FEC
The plaintiffs request the following from the court:
- Declare that the FEC's dismissals of their administrative complaints were once again "arbitrary, capricious, an abuse of discretion, and otherwise contrary to law."
- Order the FEC to find within 30 days that the CPD violated federal law "by staging candidate debates in a partisan manner and without pre-established, objective criteria."
- Further order the FEC to find that the CPD violated federal law "by making prohibited contributions and expenditures," and "by failing to register as a political committee and by failing to make required reports and disclosures."
- Authorize plaintiffs to take civil action "against the CPD, its executive director, and the directors who have participated in these violations of federal election law," if the FEC fails to act.
- Order the FEC to "revise its rules governing presidential debates to ensure that debate sponsors do not unfairly exclude independent and third-party candidates from participating."
It should once again be explained that the FEC is also a bipartisan agency. It is composed of Republicans and Democrats, who have an invested interest in their party's influence over elections. This, the plaintiffs argue, cannot go overlooked by the court as it is paramount in the FEC's unwillingness to act any other way but to ignore the "mountain of evidence" against the debate commission.
The FEC has 60 days to respond to the supplemental complaint unless further ordered by Judge Chutkan. Read the full supplemental complaint below:
Read the Independent Voter Project's amicus brief in favor of the CPD lawsuit: