Plaintiffs Shred FEC’s Defense of Debate Commission

Level the Playing Field filed new documents in their case against the “nonpartisan” Commission on Presidential Debates. Among them is a brief that includes a blistering response to the FEC’s argument that the CPD -- as an organization -- doesn’t have a conflict of interest, even though the majority of its board is made up of high-powered Democratic and Republican insiders.

Plaintiffs in Level the Playing Field, et. al. v. FEC say the federal commission has ignored a “mountain of evidence” against the CPD, has misled the court in its defense of the debate commission, and has allowed the CPD to exercise “unchecked power to decide who may participate in the presidential debates.”

“[The CPD] has abused that power by erecting insurmountable obstacles that ensure only Republican and Democratic candidates will be invited,” plaintiffs write in their latest memorandum.

“In so doing, the CPD repeatedly violated FECA’s restrictions on corporate campaign contributions and funneled millions of dollars in illegal contributions to the Republican and Democratic Parties and their presidential nominees.”

The plaintiffs, including Level the Playing Field (LPF), LPF Chair Peter Ackerman, and the national Green and Libertarian Parties filed the memorandum to further support their motion for summary judgment on their second complaint in the lawsuit.

Federal regulations require the presidential debate commission to be nonpartisan, and the CPD is listed as a 501(c)(3) nonpartisan, nonprofit organization. Yet its members have both a political and financial investment in protecting Republican and Democratic control of presidential elections.

Federal regulations require the CPD to use “objective criteria” when choosing which candidates can participate in presidential debate

Yet the CPD blocks out competition by putting in place rules like the “15 percent rule,” which requires third party and independent candidates to poll at 15 percent in 5 national polls that often don’t include their names and if they do, it is further down in the poll from the Republican and Democratic candidates.

The FEC is charged with overseeing organizations like the Commission on Presidential Debates, yet has taken no action to ensure the CPD is following federal law. It can’t even articulate the standard it used when dismissing administrative complaints against the CPD, not just once -- which the court found “arbitrary, capricious, and contrary to law” -- but twice.

“The FEC...continues to ignore this Court’s admonition that the bare recitation of the regulation’s language will not satisfy its obligation to ‘articulate what standard it used to determine whether the CPD complied with the regulation,'” Plaintiffs in this case write.

This is not just a failure in oversight. The FEC is allowing the CPD to violate federal regulations when it ignores clear evidence that the debate commission isn’t nonpartisan, nor is it in compliance with federal campaign regulations or using objective and fair criteria to determine debate entry.

But what else would one expect from an agency that is also bipartisan? The FEC is controlled by Republicans and Democrats who also have a desire to keep outside competition from threatening two-party control.

"If the judge rules the FEC has once again shown itself to be 'arbitrary, capricious and contrary to law,' a revolution in our system of electing political leaders will begin to unfold," says LPF Chair Peter Ackerman.

"The first step, we hope, will be the emergence of competitive presidential candidates untethered to the two-party duopoly. These candidates will provide voters a choice they have never had in their lifetimes and help repair public confidence in the integrity and effectiveness of our democracy."

Plaintiffs in Level the Playing Field provide ample evidence that the FEC is not only committing gross incompetence, but intentional negligence to protect the two-party scheme. They have asked the court to rectify this in a couple of ways:

“[P]laintiffs should be permitted to sue the CPD directly, so that a court could then force the CPD to comply with FECA. The Court should also require the FEC to open a rulemaking. As the FEC has proven through three decades of shameless dereliction, nothing short of an explicit court order demanding these remedies will suffice.”

Stay tuned for further developments in this case. Read the full brief below:

Disclaimer: The Independent Voter Project (a co-publisher of IVN) filed an amicus brief in this case in support of the plaintiffs' lawsuit. You can view the amicus brief here