Amicus Brief to Judge: Open Debates Matter

Created: 22 September, 2017
Updated: 17 October, 2022
4 min read

The bipartisan Commission on Presidential Debate’s (CPD) 15 percent rule exacerbates the political divide in the US, leaves millions of voters unrepresented in presidential elections, and undermines fundamental democratic principles in order to protect the two-party duopoly.

That is the argument the Independent Voter Project and 6 individual signatories make in an amicus curiae brief filed Friday in support of a legal challenge brought by Level the Playing Field (LPF) against the debate commission and its exclusionary presidential debate rules.

The six individual signatories are notable, credible, and qualified candidates for president that would consider running absent institutional barriers like the 15 percent rule that kill their candidacies before they can even begin:

  • Admiral James Stavridis, a retired Navy admiral;
  • Sen. Joseph Robert Kerrey, former governor and senator of Nebraska;
  • Sen. Joe Lieberman, former senator of Connecticut;
  • Hon. Clarine Nardi Riddle, first female attorney general of Connecticut and co-founder of No Labels;
  • Hon. David M. Walker, seventh comptroller general of the US and co-founder of No Labels; and
  • Hon. Christine Todd Whitman, former governor of New Jersey and administrator of the EPA

“These highly qualified Americans represent the tip of the iceberg,” the amicus states. “It is impossible to know how many others whose ideas, energy, and hopes for America’s future are held captive by the arbitrary and impenetrable barrier to participation presented by the CPD’s 15% rule.”

The Independent Voter Project and joining signatories specifically filed the amicus brief in support of LPF’s motion for summary judgment on a second complaint against the FEC in May. LPF says the FEC continues to ignore the “mountain of evidence” against the debate commission, and is acting “arbitrarily and capriciously and contrary to law.”

The CPD is listed as a 501(c)(3) nonpartisan, nonprofit organization, yet it is composed of Republicans and Democrats who have an invested interest -- both politically and financially -- in their party’s influence over elections.

That is exactly what the 15 percent rule does. It relies on “privately constructed and controlled polls” and private media corporations to determine the viability of candidates “with no public oversight as to methodology, policy bias, or conflicts of interest (real or perceived).”

“Conferring the power to limit access to private media corporations is both inappropriate and, inevitably, subject to a level of public skepticism that only serves to undermine the public’s confidence in the system and to reinforce a growing belief that ‘the system is rigged.’” - Independent Voter Project's Amicus Curiae Brief

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Even more so, the 15 percent rule is part of an “anticompetitive election framework” that disenfranchises over 40 percent of voters who self-identify as independent of the Republican and Democratic Parties, and the many more who feel disillusioned by the party they do identify with.

“The interplay of CPD’s 15% rule with primary elections provides a good example of this systematic distortion of competition in our election process,” the Independent Voter Project writes.

“Presidential primaries and caucuses, in every state, are private activities that serve political parties. In many states, only major political party members can participate at all. The primary election season now runs nearly a full year, and there is near constant media coverage diverted almost exclusively on the major party candidates.”

In other words, with the presidential primaries ending less than two months before the CPD’s first debate, it is impossible for third party and independent candidates to build the exposure they would need to get to the 15 percent polling threshold.

The media largely ignores outside candidates, anyway, deciding for the American public that they are not viable.

ALSO READ: Independent Voter Project Amicus: Presidential Debates Commission is a Monopoly, Reduces Competition

This analysis is supported by findings from a recent Harvard Business School study conducted by Katherine Gehl and Michael Porter. You can read more about their findings here.

The CPD’s stated mission is to “provide the best possible information to viewers and listeners,” but its responsibility is much greater than that as it controls the rules that govern the most important political conversation between candidates and the American people.

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“It is CPD’s duty to embrace the true competition of ideas in our political discourse and elected process,” the amicus states.

“CPD, in conflict with its stated mission, has abdicated this responsibility by defending a rule that is so limiting to the marketplace for new ideas that no third-party or independent candidate has qualified for the presidential debates in more than two decades.”

Read the Full Amicus Brief:

Read LPF’s Motion for Summary Judgment:

Read LPF’s Amended Supplemental Complaint:

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