In Court Filing, Group Seeking Independent in Fall Presidential Debates Blasts FEC Response as ‘Frivolous’

By Jason Owen 4 min read

WASHINGTON, May 30, 2017 /PRNewswire/ — Level the Playing Field (LPF), the non-profit that sued to open the final fall presidential debates to a third participant, blasted the Federal Election Commission’s response to a federal court decision last week, saying, “The FEC continues to disregard much of this evidence, and its treatment of the remainder is frivolous.”

As an example, Alexandra A. E. Shapiro, the attorney for LPF, cited in her filing an FEC claim that a Westlaw news database showed Libertarian Gary Johnson receiving substantial press coverage in 2016. But, as Shapiro noted, “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 former defensive standout for the San Diego Chargers, and a Hawaiian chef.

“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 (CPD) uses to keep an independent off the stage.

“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.”

In its original lawsuit, LPF argued that, without spending many hundreds of millions of dollars to gain name recognition, independent and third-party candidates could not achieve the 15 percent threshold for participation set by the Commission on Presidential Debates.

In the new filing, LPF noted that the FEC’s own survey of 46 newspapers showed that on average, each paper gave Republican Donald Trump and Democrat Hillary Clinton 34.1 and 27.8 mentions per week, respectively. Libertarian Johnson received fewer than two mentions per week and Green candidate Jill Stein received less than one.

LPF, along with its co-plaintiffs, the Libertarian and Green Parties, filed its Supplemental Complaint for Declaratory and Injunctive Relief on May 26 in response to an FEC filing, which itself was a response to a blistering adverse decision by a federal court.

In that summary judgment on Feb. 1, 2017 U.S. District Court Judge Tanya Chutkan ruled “the FEC acted arbitrarily and capriciously and contrary to law” when it summarily rejected LPF’s original administrative complaints to the commission. Chutkan decided that the FEC “appears to have stuck its head in the sand and ignored” what she called a “mountain” of evidence the debate-selection criteria were rigged in favor of Democrats and Republicans and against independents.

In its response last week, LPF stated, “What is even more telling about the FEC’s post-remand decisions is how little they do to actually defend the 15% polling criterion… 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.”

The LPF filing noted that the district court ruled that, given “the evidence that since 1988 only one non-major party candidate…has participated in the debates, and only then at the request of the two major parties, and the evidence that the CPD’s chairmen and directors are actively invested in the partisan political process through large donations,” it is “perplex[ing]” that the FEC is so quick to deem the CPD’s criteria “objective.”

Also in its response, LPF said that the FEC failed to specifically address more than a “handful of the numerous inculpatory statements and partisan acts of the CPD’s officers and directors.”

The FEC “does not specifically address the remaining evidence of the CPD’s partisan activities, including: [Chairman Frank] Fahrenkopf’s statement that the CPD was ‘not likely to look with favor on including third-party candidates in the debates’ [and former director] Alan Simpson’s comment that ‘Democrats and Republicans on the commission…are interested in the American people finding out more about the two major candidates—not about independent candidates who mess things up.'” Shapiro cited many other unaddressed examples as well.

LPF also responded in detail to the FEC’s critique of two studies in the original lawsuit, one by Clifford Young of the international research firm Ipsos and the other by veteran political strategist Doug Schoen. The response concludes: “The FEC does not and cannot refute the fundamental mathematical principles that make the 15% rule biased against independent candidates.”

The plaintiffs ask the district court to direct the FEC to find that the CPD violated federal regulations and law “by staging candidate debates in a partisan manner and without pre-established, objective criteria” and “by failing to register as a political committee and by failing to make required reports and disclosures.”

If the FEC fails to act, LPF asked the judge to “authorize Plaintiffs to bring a civil action against the CPD, its executive director, and the directors who have participated in these violations of federal election law to remedy those violations.”

For further information, contact Elizabeth Heaton at [email protected] / (202) 445-9858
Or Jim Glassman at [email protected] / (202) 344-5777