Could a change in presidential debate rules help alter the tone of American politics? In early January, Level the Playing Field sued the Federal Election Commission. Their goal was to improve American politics by forcing the FEC to allow a third party candidate onto the presidential debate stage. Speaking after the conclusion of oral arguments, attorney Alexandra Shapiro was hopeful that the judge was persuaded by their arguments. The decision just handed down by Judge Tanya Chutkan shows that her hope was not unfounded. Chutkan’s decision held that the Federal Election Commission acted in a manner “arbitrary, capricious, and contrary to law” when it excluded third party candidates.
Chutkan’s decision examined the manner in which the Committee on Presidential Debates functions as a bipartisan, rather than non-partisan organization. Since its creation in 1987, the CPD has had two co-chairmen, one, Frank Fahrenkopf, Jr., a Republican, and another, first Paul G. Kirk, Jr. and later Michael D. McCurry, both Democrats. Statements from both Fahrenkopf and Kirk show that they viewed presidential debates as bipartisan affairs.
“Fahrenkopf has stated that the CPD was not likely to look with favor on including third-party candidates in the debates, and Kirk has stated that he personally believed the CPD should exclude third-party candidates from the debates,” Chutkan wrote.
Under the rules established by the CPD, a third-party candidate must reach 15 percent in a national poll to get a spot on the stage. Level the Playing Field argued that the name recognition needed to reach that level was prohibitively expensive for an independent candidate. Chutkan accepted the argument and chided the FEC for its “refusal to engage in thoughtful, reasoned decision-making in either enforcement or rulemaking in this case.”
She ordered the FEC to “reconsider the Petition for Rulemaking and issue a new decision consistent with this Opinion within sixty days.”
After the decision, Shapiro called the ruling “enormously important” and predicted that it would have significant impact in the future.
“It could pave the way for a new kind of election in 2020,” she said.
The decision was a promising development in a long legal fight. Level the Playing Field began lawsuits to open up the presidential debates in 2015. This was the first time that the FEC and CPD had been successfully challenged over the debate rules.
Peter Ackerman, the founder of Level the Playing Field, said that the ruling, “lays the groundwork for removing the primary obstacle to providing Americans with the independent alternative to the two parties that polls clearly indicate they want.”
Level the Playing Field was joined in the lawsuit by the Green Party and the Libertarian Party, two groups that could benefit from the rule change.
“For decades, the CPD has operated in a manner designed to support and perpetuate the two old parties and protect them from any political competition. And for decades, the FEC has been complicit by willfully ignoring the evidence that the CPD is running an illegal bipartisan campaign commercial,” said Libertarian National Committee Chair Nicholas Sarwark.
“We hope that this ruling will get the FEC to start following and enforcing the law fairly,” he continued.
