So far, the lawsuit seeking to open future general election presidential debates to a qualified third candidate is moving successfully through federal court. Unfortunately, we have good reason to be concerned about what happens even when the lawsuit succeeds.
As a Republican Congressman from Connecticut, and a Democratic Congressman from Massachusetts, we were the principal co-sponsors in the House of Representatives of the historic Bipartisan Campaign Reform Act of 2002 (BCRA), known by some as the McCain/Feingold Act, which addressed the use of soft money and sham issue ads, as a way to get around existing limits on campaign contributions. The Federal Election Commission (FEC) refused to meet its obligation to enact strong regulations required by the law, and we were forced to file suit. There followed six years of litigation over several election cycles, with the FEC continually ignoring not just the law, but the orders of the court.
The lesson we learned was this: Don’t count on the FEC to abide by its legal obligations. It is a highly partisan political institution, with commissioners beholden to their parties and disrespectful of the courts.
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That lesson learned applies to the current suit by Level the Playing Field (LPF), a non-profit headed by the scholar and businessman Peter Ackerman, against the FEC. On February 1st, Judge Tanya Chutkan ruled in the LPF’s favor in a blistering opinion that found the FEC had “acted arbitrarily and capriciously and contrary to law.” It was the first time challengers to the rules of determining who can be in the presidential debates have been successful in court.
The lawsuit was aimed at the conduct of the Commission on Presidential Debates (CPD), a private non-profit established in 1987 under the joint sponsorship of both the Democratic and Republican political parties that the FEC is supposed to oversee. To get the CPD to change its rules, or to get rid of the CPD altogether, the plaintiffs first had to sue the FEC, which was not enforcing laws that limit the activity of a partisan political organization like the CPD. The plaintiffs provided what the judge called a “mountain of submitted evidence” to back up their charges.
As an example, the suit, showed that Frank Fahrenkopf, the former head of the Republican National Committee and co-chair of the CPD, donated more than $35,000 between 2012 and 2014 to the Republican Party, and Mike McCurry, the former press secretary to President Clinton, donated almost $85,000 to Democrats between 2008 and 2012.
Other CPD directors made large donations to their respective parties, and helped individual candidates as well with fundraisers, and provided public statements of support. Clearly, they have demonstrated time and again their determination to restrict competition to the two parties alone, and they have established debate admission rules to do just that.
Since the initial court ruling, both sides, and their allies, have submitted several new filings with Federal District Court in Washington. In a new amicus brief, the CPD makes the strange claim, that while the law requires that tax-exempt organizations not “endorse, support or oppose political candidates or parties,” this rule applies only to the groups themselves, and not to the members who comprise the group.
But this absurd claim is not our worry. Our fear is that the court will rely solely on the FEC to enforce the law, by requiring the CPD to open the debates. The FEC has shown repeatedly that it has no interest in such enforcement. It will abdicate its responsibility, as it did in repeatedly refusing to write proper regulations to conform to the Bipartisan Campaign Reform Act of 2002 (BCRA).
In the BCRA case, Shays v. FEC, the trial court said it would decline “to stamp the Commission’s ‘business-as-usual’ tactics and request for delay with the judicial imprimatur of approval” and demanded the FEC “conduct proceedings…to assuage its abrogation of both congressional intent and public interest.” The appeals court supported the lower court’s decision, but again, ordering the Federal Election Commission to fix the problem, didn’t solve the problem, because the FEC refused to obey.
This can’t be allowed to happen again. Americans want to have the option of a worthy third candidate for president in 2020. According to the polls on election day last November, the Democratic and Republican candidates were both held in record low esteem, and the two parties that nominated them now have historically low approval ratings. We simply cannot trust the FEC to correct the problem, even when it is under court order.
The answer is for the judge to allow Level the Playing Field to go straight to the source, not the FEC, and sue the Commission on Presidential Debates directly. A court could then force CPD to end its partisanship, and change its debate admission rules, or face extinction.
In its new friend-of-the-court brief, the CPD claims that opening the debates would “Trample [its] First Amendment Rights.” The irony of this claim is overwhelming. What the CPD has done with its restrictive debate-admission rules is trample the rights of potential candidates of their own free speech, and trample the rights of all Americans to have a choice for president beyond two exhausted and repudiated parties.
Christopher Shays served as a member of the U.S. House of Representatives for 21 years.
Marty Meehan, president of the University of Massachusetts, served as a member of the U.S. House of Representatives for 15 years.
