Who Gets to Debate?
By Tommy La Voy*
Until 1988, televised presidential debates were organized on an ad-hoc basis, which left it an open question as to whether there would actually be a debate during every election. There was no presidential debate in 1964. Nor were there debates in 1968 or 1972, as Richard Nixon refused to participate. In order to put an end to this uncertainty, the Democratic and Republic National Committees came together and in 1987 formed a nonpartisan 501(c)(3) non-profit, the Commission on Presidential Debates (CPD). Since 1988, the CPD has been the sponsor and underlying guarantor of general election televised presidential debates. And as such, it determines who is allowed on the debate stage.
The Federal Election Commission (FEC) allows 501(c)(3) organizations like the CPD to be “staging organizations” for these debates, so long as they do not endorse or oppose a candidate or party, and so long as they select the invited candidates through “pre-established, objective criteria” – objective criteria that must be something other than nomination by a particular political party, per 11 C.F.R. 110.13(c). These regulations allow a non-profit to accept corporate funds and use them on a debate, as the CPD does – otherwise, those expenditures would be considered corporate contributions to the campaigns involved, in violation of the Federal Election Campaigns Act (FECA).
The CPD’s “pre-established, objective criteria” to choose candidates are threefold: the candidate must be constitutionally eligible to serve as president, the candidate must be on enough state ballots to have “a mathematical chance” of earning a majority in the Electoral College, and the candidate must be polling at a minimum of 15% in an average of five national polls (as chosen by the CPD, based on their reputation, frequency, and methodology, and announced “well in advance of the time the criteria are applied”).
The objectivity of that last criterion is controversial, and it was recently challenged by four parties, first in administrative complaints before the FEC, and then in federal court. The four complaining parties are Level the Playing Field (LPF – a nonpartisan non-profit that is interested in greater competition in federal elections), the Green Party of the United States, the Libertarian National Committee, Inc., and Dr. Peter Ackerman (an activist in the election reform movement). LPF and Ackerman filed their complaint in September 2014, and the two political parties filed their complaint in June 2015. Both complaints concerned the CPD’s 15% polling cutoff in the 2012 presidential election, and were supported by evidence of the CPD’s chairmen donating over $100,000 to the two major parties and expert reports examining the difficulty for third-party candidates to reach the cutoff.
The FECA allows for anyone that believes there has been a violation of the Act to file an administrative complaint with the FEC, which the agency must then review (along with anything filed by the respondents to the complaint). The FEC must then decide, per 52 U.S.C. § 30109(a)(2), whether there is “reason to believe” that a violation has occurred – a determination that requires a majority vote of the agency’s six commissioners. The FEC voted 5-0 in July, 2015 in response to the first complaint to find no reason to believe CPD violated the FEC, and voted 5-0 again in December, 2015 to make the same determination for the second complaint. They Commission cited prior administrative decisions about the CPD’s 15% threshold, which had been supported in federal court. LPF and Ackerman sued the FEC in August, 2015, and joined the political parties as plaintiffs in January, 2016. They claimed that the agency violated the Administrative Procedures Act by failing to enforce the “objective” element of the FECA and failing to consider the evidence in their complaints.
On February 1, 2017, Judge Chutkan in the District of the District of Columbia ruled against the agency, finding that the FEC’s reasoning for dismissal of the complaints against the CPD was “threadbare.” In response to the suit filed by these four parties, the FEC explained its reasoning for dismissing the complaints only as based on prior administrative decisions and the case of Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000). But the legal standard in the prior dismissals and Buchanan was one that required complainants to show that “the CPD is controlled by the DNC or the RNC.” It seemed that this “control” standard, which is not supported by the FECA, had been adopted by the FEC by default; the agency failed to articulate any other standard before the Court. The Court found that even taking into consideration the deference due to the agency, it failed the “minimal burden of showing a ‘coherent and reasonable explanation [for] its exercise of discretion.’”  As “the FEC articulated no analysis…the court cannot discern the FEC’s reasoning” for having dismissed the complaints.
As the FEC failed to explain its legal analysis (beyond the precedent of the “control” analysis), Judge Chutkan found that the agency’s “analysis of the criterion’s objectivity was arbitrary and capricious and contrary to law” and granted summary judgment for Plaintiffs. She ordered the complaints remanded to the FEC so that the agency would “reconsider the evidence and allegations and issue a new decision” within thirty days. This does not mean that the American public will watch three or more presidential candidates debate each other in the fall of 2020. But it does mean that for the CPD’s 15% polling threshold to remain legitimate, the FEC will need to examine the parties’ evidence of its exclusionary effect on any candidate whose name is not attached to a “D” or an “R.” And the agency will need to have a stronger argument for why 15% is an objective criterion than “because of precedent.”
The views and opinions expressed in this blog post are those of the authors and do not necessarily reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
*Tommy La Voy is a Junior Editor on MJEAL. He can be reached at firstname.lastname@example.org.
 Bob Greene, When Candidates Said ‘No’ to Debates, CNN (Oct. 1, 2012, 7:43 AM),
 CPD Overview, supra note 1.
 Level the Playing Field vs. FEC, No. 15-CV-1397, slip op. at 5 (D.D.C. Feb. 1, 2017), https://dockets.justia.com/docket/district-of-columbia/dcdce/1:2015cv01397/173571/.
 CPD Overview, supra note 1.
 Level the Playing Field at 1.
 Id. at 1-2.
 Id. at 6.
 Id. at 5.
 Id. at 6.
 Id. at 7.
 Id. at 8.
 Id. at 9.
 Id. at 13.
 Id. at 11.
 Id., (FEC Mem. at 21 (quoting First General Counsel’s Report in MURs 4897, 5004, and 5021 (July 13, 2000))).
 Level the Playing Field at 11-12.
 Id. at 13, Carter/Mondale Presidential Comm., Inc. v. FEC, 775 F.2d 1182, 1185 (D.C. Cir. 1985) (quoting MCI Telecommunications Corp. v. FCC, 675 F.2d 408, 413 (D.C. Cir. 1982)).
 Level the Playing Field at 22.
 Id. at 23.