Advocates for widening candidate participation in the presidential debates are asking a federal judge to revive their legal challenge to the current format in time to write new rules for the 2020 election.
Proponents for giving independent and other candidates a greater chance to join the nationally televised forums urged U.S. District Judge Tanya Chutkan to rule at her “earliest possible convenience” on a complaint that has been dormant for more than a year, according to an unusual motion filed Tuesday in the federal district court in Washington.
The challengers include a nonprofit called Level the Playing Field, along with the Green Party, Libertarian Party and businessman Peter Ackerman. They say the current presidential debates format violates campaign finance law because the fall general election debates are rigged to include only the Democratic and Republican nominees for president.
The plaintiffs differ about what a fair debates system would be but all agree the current system is unfair and should allowindependent or third-party candidates to be included. They’ve asked the court to strike down Federal Election Commission rules giving the current sponsor, the private, nonprofit Commission on Presidential Debates, wide latitude to determine who should be invited to participate.
Only a major party nominee or an independent candidate with billions of dollars to spend on advertising can get enough name recognition to break the barrier of 15 percent support in national polls now required to be included in the debates, the challengers argued in court papers.
The debates’ sponsor has shown no interest in changing its criteria, arguing it has a First Amendment right to decide who participates.
FEC rules for candidate debates say sponsors must use “objective criteria” to decide who participates. The presidential debates meet that standard because participation is based on poll numbers, not party affiliation, the agency has determined.
Challengers have emphasized that the leadership of the presidential debates commission has been dominated by Republican and Democratic political figures. They include one of its current co-chairs, Frank Fahrenkopf, a former Republican National Committee chairman. Michael McCurry, who co-chaired the debates commission until 2017, served in the Clinton White House and Democratic National Committee, though McCurry has been succeeded by Dorothy Ridings, former head of the League of Women Voters.
Should Chutkan rule in favor of the debates challengers, “additional time-consuming litigation would be required to ensure that the debate-qualifying criteria are changed prior to the 2020 election,” the newly filed motion said. It added that a lengthy appeals process could follow any ruling by the district court.
Chutkan in 2017 ruled in favor of the challengers at an earlier stage of the litigation. She found that the FEC was wrong to dismiss an enforcement complaint against the presidential debates commission because the commission hadn’t followed proper procedures. After the enforcement matter was sent to the agency, the FEC issued a new ruling with the same result: the debates commission has wide leeway to decide who participates in its debates.
The challengers then asked the court again to overrule the FEC. Briefing was completed by late 2017, but no decision has been announced by the court.
The name of the case is Level the Playing Field v. FEC, D.D.C., Civil No. 15-1397.
To contact the reporter on this story: Kenneth P. Doyle in Washington at firstname.lastname@example.org